The Bombay High Court on Thursday while hearing arguments on pleas challenging the constitutional validity of amended IT Rules asked whether the Rules only apply to social media intermediaries and not to print media even if the same content is available on both the platforms.
A Division Bench of Justices Gautam Patel and Neela Gokhale was hearing a bunch of petitions filed by political satirist Kunal Kamra, the Editors Guild of India (EGI), the Association of Indian Magazines and regional channels challenging the constitutional validity of the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. The Rules require social media intermediaries to censor or modify content that relates to the Central government if a government-mandated fact checking unit (FCU) directs them to do so.
Advocate Shadan Farasat appearing for EGI argued that Article 19(1)(a) pertaining to freedom of speech and expression is a mechanism to get to the truth through discussion, debate and dissent. Referring to the Rules, he said there cannot be a definition of misleading as no one knows the line between news and opinion, as that is the nature of speech and thought. These Rules give the government monopoly over what information should circulate about its conduct, he contended.
The court then said the amendment to the Rules is limited to digital media and asked whether the same content available online, that goes to print be called fake, false or misleading? “How is it less fake, false and misleading because it is in print? You get an e-paper version of the newspaper. Both say the same thing, what will happen? What is it the government intends to do? Is it going to not deal with something which is both print and online? The fact that they [Central government] are not applying this to print media... does this result in automatic curtailing of their powers on what they can do to online content?,” the court asked.
The court went on to question, “Are they [Centre] saying that if someone takes a picture of a newspaper and posts it on Twitter, then Twitter will face takedown notice but nothing can be done to the newspaper? Fake, false and misleading is about content, not the medium.”
Mr. Farasat answered that the government is trying to hit “circulation”. “How is the news consumed in 2023? Primarily through digital medium. They know if they bar digital medium then circulation will go down substantially... They are trying to give the conformist speech the loudest mic.”
The court quipped, “They [Centre] are perfectly fine with no speech at all.” The hearing will continue on July 14.