DIGITAL MEDIA ETHICS (AMENDMENT) RULES 2023

• In April, the Ministry of Electronics and IT (MEiTY) promulgated the 2023 IT Rules, amending the Information Technology Rules, 2021, and establishing provisions for the appointment of a fact-checking unit.
• Various entities, including Kunal Kamra, a political satirist, the Editors Guild of India, and the Association of Indian Magazines, filed writ petitions before the Bombay High Court challenging Rule 3(1)(b)(v) of the IT Rules, which permits the creation of an FCU.
• The petitioners argue that this provision could lead to government-led online censorship, allowing the government to determine what constitutes the truth online.
• A Bench of the High Court announced that they would pass their ruling on the amendment on December 1.
• The government informed the Court that the FCU would not be operational until the judgment is delivered.

3. About the Amendment

• The amendment introduces significant changes to Rule 3(1)(b)(v) of the IT Rules, 2021, outlining the responsibilities of intermediaries.
• It places the onus on intermediaries to make "reasonable efforts" to prevent users from sharing content identified as fake, false, or misleading by a fact-checking unit of the Central government.
• Failure to comply with this rule puts intermediaries at risk of losing the safe harbour protection provided under Section 79 of the IT Act, 2000, which exempts intermediaries from liability for third-party information hosted by them.

4. Court's Observations

• The Bombay High Court raised concerns regarding the lack of necessary safeguards in the amended Rules.
• It noted that the Rules do not appear to protect fair criticism of the government, such as parody and satire.
• The ambiguity surrounding the term "any business of the Central government" was highlighted, as it was unclear whether political speeches preceding the 2024 Lok Sabha elections would fall under its purview.
• The Court also questioned the sudden need for an FCU, as the Press Information Bureau (PIB) had been effectively fact-checking for years.
• The Court expressed concerns about undefined terms in the Rules, such as "fake," "false," and "misleading," and their subjective nature.
• The Court criticized the lack of provisions in the Rules allowing aggrieved intermediaries to justify or defend the flagged content, which it considered a violation of the principles of natural justice.
• It also pointed out that users whose posts have been removed or accounts suspended by intermediaries following FCU flags were left without recourse or remedy.

5. Conclusion

The outcome of this legal battle, which questions the constitutionality of the IT Rules, is eagerly awaited, as it may have significant implications for online content regulation and freedom of expression in India. The Bombay High Court is set to deliver its verdict on December 1.