Fact check unit: IT Rules amendments don't seem to offer protection to parody, satire, says Bombay HC

The amendments to the Information Technology Rules, prima facie, do not seem to offer protection to parody and satire, the Bombay High Court said on Monday while hearing a petition filed by stand-up comedian Kunal Kamra.

The HC bench also said Kamra's petition challenging the amendments was maintainable.

On April 6, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision of a fact check unit to identify fake or false or misleading online content related to the government.

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Kamra, in his petition, claimed the new rules could potentially lead to his content being arbitrarily blocked or his social media accounts being suspended or deactivated, thus harming him professionally. He has sought that the court declare the amended rules as unconstitutional and give a direction to the government to restrain from taking action against any individual under the rules.

The Union government, in an affidavit filed in court, had "reiterated that the role of the fact check unit is restricted to any business of the Central government, which may include information about policies, programmes, notifications, rules, regulations, implementation thereof, etc".

"The fact check unit may only identify fake or false or misleading information and not any opinion, satire or artistic impression. Therefore, the aim of the government with regard to the introduction of the impugned provision is explicitly clear and suffers from no purported arbitrariness or unreasonableness as alleged by the petitioner (Kamra)," the Centre's affidavit further contended.

On Monday, a division bench of Justices GS Patel and Neela Gokhale, while hearing the plea, said, prima facie, the rules don't seem to offer protection to fair criticism of the government like parody and satire.

"You are not affecting parody, satire, that is what your affidavit says. That is not what your rules say. There is no protection granted. That we will have to see," Justice Patel orally remarked.

The Centre had also said the fact check unit has not yet been notified by the government and, hence, arguments made in the petition (by Kamra) regarding its functioning do not have any basis and were "premature and under mere misconceptions of the petitioner”.

However, the bench said the argument that the challenge is “premature” is also incorrect. The court will hear the matter further on April 27.

As per the amendments, intermediaries such as social media companies will have to act against content identified by the fact check unit or risk losing their “safe harbour” protections under Section 79 of the IT Act. "Safe harbour" protections allow intermediaries to avoid liabilities for what third parties post on their websites.