Introduction

On 20 September 2024, the Bombay High Court (‘BHC’) delivered a landmark judgment in Kunal Kamra and Ors. v. Union of India[1],  striking down the amendment to Rule 3(1)(b)(v) (‘Impugned Rule’ or ‘Rule’) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (‘2023 Amendment’), by a 2:1 majority. The Impugned Rule required intermediaries to exercise due diligence to inform users and make ‘reasonable efforts’ to prevent the publication or transmission of information, inter alia, that was identified as ‘fake, false or misleading’ by a Fact Check Unit (FCU) designated by the Central Government. Non-observance of such due diligence prescribed under the Information Technology Act, 2000 (‘IT Act’) and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘IT Rules’) may render ‘safe harbour’ immunity (provided under Section 79 of the IT Act) non-applicable and potentially expose intermediaries to liability under the IT Act, the Bharatiya Nyaya Sanhita or other laws and regulations.

Background

Further to its scope under the Government of India (Allocation of Business) Rules, 1961, the Ministry of Information and Broadcasting (MIB) and PIB established a Fact-Checking Unit[2] (‘FCU’), that is tasked with verifying claims relating to government policies, regulations, announcements and measures. The FCU aims to facilitate the dissemination of accurate public information and countering fake, false and misleading information about the Government’s business.

The FCU employs a fact-checking procedure to address fake news concerning both the Central and State Governments by publishing clarifications on its official website and responding to public inquiries. When an inquiry relates to a State Government, the FCU may also forward the said query to the appropriate authorities for further action.

However, in April 2023, the Ministry of Electronics and Information Technology (‘MeitY’) directed intermediaries, via the Impugned Rule, to make reasonable efforts to prevent the publication or transmission of information identified as fake by an FCU relating to the business of the Central Government. In response to these amendments, writ petitions were filed by petitioners in the instant case before the BHC, challenging the legality and constitutional validity of the Impugned Rule.  In its initial split verdict, Justices Neela Gokhale and G.S. Patel (now retired) of the Bench presiding over the matter (‘Division Bench’), opined as follows:

• Hon’ble Justice Gokhale ruled that the 2023 Amendment was beneficial for intermediaries as obligations to subjectively evaluate information accuracy were reduced to make ‘reasonable efforts’ to prevent dissemination of already identified content. Additionally, such reasonable efforts may not only necessitate takedown but also include publication of appropriate disclaimers. It was further observed that the remedies of approaching the Grievance Redressal Mechanism as well as the Appellate Authority were available and therefore, sufficient safeguards existed to prevent the Impugned Rule from being violative of Article 14 of the Constitution.
• In contrast, Hon’ble Justice Patel opined that the 2023 Amendment improperly shifted the responsibility for content accuracy from creators to intermediaries, raising concerns about any pre-emptive action taken by intermediaries to take ‘reasonable efforts’ in order to mitigate risk of losing safe harbour immunity. The FCU’s role as the sole authority on misinformation was critiqued, noting the absence of adequate guidelines that could lead to biased determinations and unequal treatment under Article 14 of the Constitution.

Therefore, it was concluded that there was disagreement on the matter between the learned judges of the Bench, and consequently, the matter was referred to a third judge for adjudication on the points of difference between the judges of the Division Bench.

Judgement

In his tie-breaking judgement, Hon’ble Justice Chandurkar concurred with the views expressed by Justice Patel and observed that:

• The Central Government failed to provide a reasonable basis for distinguishing information related to its business from other types of information. This lack of intelligible differentia violates Article 14 of the Constitution, which mandates that classification made under law must be reasonable and not arbitrary.
• While the right to access accurate information concerning government affairs under Article 19(1)(a) was upheld, it was clarified that such right does not obligate private entities, such as social media intermediaries, to ensure the veracity of all content on their platforms. Citing the Supreme Court’s ruling in Anuradha Bhasin Union of India[3], the bench reaffirmed that free speech encompasses the right to disseminate information widely, emphasizing that the government could not unilaterally define what constituted true or false speech.
• The Impugned Rule's restrictions were found to be disconnected from permissible limits under Article 19(2), and it was legally not permissible to expand the nature of restrictions prescribed under Article 19(2) through an interpretative process as was held by the Supreme Court in Shreya Singhal v. Union of India[4]. The court ruled that this created a chilling effect, as intermediaries may preemptively remove content flagged by the FCU to avoid repercussions, thereby restricting users’ freedom of expression.
• The court emphasized that the Impugned Rule threatened the operational integrity of intermediaries and potentially infringed upon journalistic freedoms, violating the norms set by the Press Council of India. By subjecting digital platforms to stringent compliance risks, the rule posed a direct threat to the independence of the press and the public’s right to diverse information as provided under Article 19(1)(a) of the Constitution of India.
• It was observed that while intermediaries may be protected under the ‘knowingly and intentionally’ standard for non-Central Government content, they faced a different liability for Central Government-related content whereby, if, after identification by the FCU, such content continued to be hosted, irrespective of knowledge and intent of the intermediary, it would result in automatic loss of safe harbour under Section 79(2)(c) of the IT Act.

Lastly, Hon’ble Justice Chandurkar concluded that the Impugned Rule sought to abridge fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(g) of the Constitution. Thus, in the absence of sufficient safeguards against the abuse of the Rule that tends to interfere with the aforesaid fundamental rights, it failed to satisfy the proportionality test and could not be read down to save its validity.

Conclusion

This landmark judgment of the BHC struck down the Impugned Rule, which required intermediaries to remove content relating to Government business flagged by an FCU as fake, false, or misleading. It remains unclear as to what constitutes the exercise of ‘reasonable efforts’ by an intermediary to prevent the dissemination of certain types of content. In this regard, the Delhi High Court in Starbucks Corporation[5] also sought a clarification from MeitY on the scope and ambit of such efforts.

The absence of precise language creates an environment where platforms may preemptively take restrictive measures on user content and behaviour to avoid the loss of safe-harbour immunity and potential liability that may be accrued.

Moreover, the establishment of FCUs in certain States including Kerala and Uttarakhand[6], complicates this landscape further. Intermediaries now face the task of navigating varying regulations and enforcement standards across different States. Such a climate not only dissuades intermediaries owing to a lack of clarity in operating frameworks for them but also poses significant risks to open discourse.

The ruling delivered by the BHC in the instant case, marks a significant step in the realm of digital media and clarifies the scope of due diligence obligations that can be imposed on intermediaries under Section 79(2)(c) of the IT Act. Such judicial interventions (including those set by the High Courts of Bombay[7] and Delhi[8]) underscore the need for clear, definitive and balanced frameworks which provide operational clarity to intermediaries, while protecting user rights and combatting misinformation.

[The author is an Associate in Technology and Corporate Advisory practice at Lakshmikumaran & Sridharan Attorneys, Hyderabad]

1. [1] Kunal Kamra & Ors. v. Union of India & Ors., MANU/MH/5903/2024
2. [2] PIB Fact Check Unit, available at here.
3. [3] Anuradha Bhasin & Ors. v. Union of India & Ors., 2020 INSC 31.
4. [4] Shreya Singhal v. Union of India, 2015 INSC 257.
5. [5] Starbucks Corporation & Anr. v. National Internet Exchange of India & Ors., Order dated 24 July 2023. MANU/DEOR/13058/2023.
6. [6] Fact-check unit needed to protect people from fake news: Centre in Bombay High Court - The Hindu
7. [7] Anand Patwardhan v. Union of India, 1997 (3) Bom CR 438.
8. [8] Srishti School of Art, Design & Technology v. Chairperson, Central Board of Film Certification, 2011 (123) D.R.J.