Mr Kunal Kamra the “Stand Up Comedian” has approached the Supreme Court to challenge the Central Government notification for forming Fact Checking Units (FCUs) under the 2023 Information Technology Amendment Rules (IT Amendment rules 2023).
Effectively it is a plea that demands the right to call oneself a “Comedian” and publish false information in the guise of parody or fun.
The earlier attempt to get a stay on the Meity rules was caught in a split judgement at Mumbai High Court and no “Stay” was granted. Now that the elections are in the offing and there is a dire need on the part of some people to spread false news the petitioners have again approached the judicial system with an appeal at the Supreme Court.
On 20th March, the MeitY issued a notification as follows
According to the news report at Bar and Bench ,Mr Kamra pressed for an immediate stay of the rules stating
“While the Impugned Rules (and the IT Rules in general) are facially directed at intermediaries, it is users (and the information created and hosted by them on various platforms) that are the subject of the Impugned Rules … [it] is extremely broad in its sweep, and would operate to muzzle speech against the Central Government,”
Mr Kamra falsely claimed
“The units would be empowered to direct social media companies to take down any content the government deems fake, false or misleading, but without due process, “
This is false since the FCU only has the power to notify that a certain news is fake and does not have the right to give any direction to the intermediary.
He further contends
“The Impugned Rules do not contemplate the issuance of a notice to the user prior to the identification of information by the FCU, or prior to the takedown by the intermediary … they would inter alia apply to any content hosted by intermediaries that contradict facts, figures or data of the government,”
This is an impossibility since the identity of the user is known only to the platform and the FCU will not know the source except as declared. The Platform as an intermediary is responsible for notifying its users not to do things which are illegal . Spreading false information is illegal per-se.
Mr Kamra says
“Petitioner, who is a political satirist, makes his living out of commenting on what can be stated to be the “business of the Central Government”. Further, most of the Petitioner’s engagement with the public is driven by social media. Any hindrance in accessing the accounts of the Petitioner will be a violation of his fundamental right to practice his profession … will affect his livelihood and right to live with dignity,”
It is to be noted that the so called fundamental right of the petitioner is an infringement on the fundamental right of the citizens who are entitled not to be cheated and mislead by false information.
The petition is set to be heard by the Supreme Court today. Knowing the Supreme Court, we will not be surprised if the Supreme Court grants the stay though Mr Kapil Sibal and Abhishek Manu Singhvi are not representing the petitioner.
Before such a knee jerk reaction, I urge the Supreme Court to read the words and intentions behind the relevant notification and why the petition is a demand to disrupt fair information dissemination during the election time when there is a model code of conduct. Mr Kamra wants to indulge in election campaign without being bothered by the need to maintain truth.
I would like to reproduce the relevant clause 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 under which PIB has been now notified as a Fact Checking Unit.
Due diligence by an intermediary: (Para 3.1)
An intermediary, including [social media intermediary, significant social media intermediary and online gaming intermediary], shall observe the following due diligence while discharging its duties, namely:—
(b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify,publish, transmit, store, update or share any information that,—
(v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution];
The petitioners and the Court needs to understand that the guideline is a “due diligence requirement” where the intermediary shall inform through its published policy document that any of the users of the platform shall not “Knowingly” or “Intentionally” host mis information which is “Patently false” or identified as false by the Fact Check unit.
It is to be noted that the requirement does not penalize the person hosting the content nor the platform. It will only deny the platform the protection under Section 79 of ITA 2000 in the event of any Court being moved that the “False” information is causing any damage.
It is a figment of imagination of the petitioner that because of the possibility of a future case being hoisted on the platform and because in such an event the defence of Section 79 is not available to the platform, the platform will today not allow Mr Kamra to host his shows which by his own admission enables him to “makes his living out of commenting on what can be stated to be the “business of the Central Government” which is a high risk business which can disrupt the electoral democracy in the country.
Naavi.org as a representative of the citizens of India contend that the petition is a request for license to indulge in mischief and disturb the proper conduct of the elections in India. Allowing mis information without accountability of the platform will not only enable Mr Kamra to misuse the social media but also encourage use of deepfake and other technologies to mis-inform the public at a time there will be no remedy available to prevent damage to the electoral process.
Hence we hope that the Supreme Court does not allow this petition particularly at this point of time when the nation is into an election. Also the Court should consider the views of the election commission in this regard and not issue any stay based on the petition which will be unjustified and contribute to the vitiation of the electoral atmosphere.
Naavi
As Expected Supreme Court has stayed the gazette notification of Meity regarding notification of PIB as a FCU. We continue to hold the view that the decision of the Supreme Court indicates that they have read down a meaning to the Section 79 beyond what was envisaged. Section 79 only requires diligence failing which the safe harbor provision of Section 79 is lost. We don’t consider this “No Liability” for third party information is not an absolute right of any business and there was no right to protect this over and above the national interest though the Court has expressed its view that the Government cannot be relied upon to take a fair decision in calling out a news as fake. On the other hand, people like Zubair may be more trust worthy for the Court. We however agree that the SC enjoys the absolute power to come to its own conclusion and views of citizens have no value. So we have to accept the decision and move on.