[Answered] Considering the Bombay High Court’s observations, discuss the potential challenges and implications of the IT Rules amendment for editorial content online.

Bombay HC is hearing multiple petitions regarding the constitutionality of the Fact Check Unit (FCU) set up by the Union Government as per Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules). The proposed Fact Check Unit will ask social media platforms to take down content that they see as fake or misleading.

Some challenges related to new IT Rules

• Censorship and Content Removal: If any content is found to be illegal, the government is authorized to force its removal raising concern about possible speech restriction and censorship. It puts a great deal of pressure on content platforms and editors to swiftly detect and remove stuff, even when it’s unclear if it violates the law.
• Privacy Issues: The regulations force platforms to track the source of specific messages, which may jeopardize the privacy of users. Editors may find it more difficult to obtain news and information from these sources since anonymity may no longer be guaranteed.
• Definitional Ambiguity: The regulations provide ambiguous definitions for terms like ““fake, false, and misleading.” Content producers and editors may become confused about what is and is not acceptable as a result of this ambiguity, which might give rise to subjective interpretations.
• Placing barriers on the marketplace: The new rules increase operational costs for social media companies. They are required to have Indian resident nodal officers, compliance officers, and physical offices in India. This will increase their operational costs significantly. Also, it will hamper the progress of multinational corporations and start-up intermediary enterprises in India.

Implications of IT Rules

• Against Right to privacy: The new rules curtail free speech on digital platforms. The Supreme Court in its famous Puttuswamy case judgment mentioned that any law that impacts the fundamental right is void. Implementing the new IT Rules for social media will violate the judgment and its provisions.
• Possibility of Abuse: Political or competitive motivations could lead to the abuse of the regulations. Takedown requests may be directed towards editors and content providers as a form of harassment.
• Takedown Without Due Process: The rules don’t specify a clear due process for content takedowns. This could result in legitimate editorial content being removed without proper investigation or recourse for appeal.
• Violation of natural justice:  there is no provision in the Rules that provides an opportunity for an aggrieved intermediary to justify or defend the flagged content. This violates the principles of natural justice.

Conclusion

Government should frame clear guidelines regarding the new IT Rules 2023 which does not offer any ambiguity and also establish an appeal mechanism against the order of FCU. The courts would do well to reinforce the right to privacy and preserve the immunity offered to companies under the “safe-harbour” principle.