If content is taken down because government calls it ‘fake’, it will restrict freedom: Bombay HC

Bombay HC: Govt cannot be final arbiter of truth; intermediaries must not lose safe harbour while hosting false/misleading info. Solicitor General argued intermediaries have option of removing/disclaiming flagged content. Court said govt cannot impose unreasonable restrictions on freedom of speech.

Solicitor General Tushar Mehta argued that once any post with ‘fake and false facts’ is flagged then the intermediaries have the options of removing or putting a disclaimer on the content

The Bombay High Court on Wednesday said if a social media intermediary takes down something that the government body says is misleading it would result in unreasonable restrictions on freedom of speech and expression.

For the second consecutive day, a division bench of Justices Gautam Patel and Neela Gokhale was hearing a bunch of petitions filed by political satirist Kunal Kamra, Editors Guild of India and the Association of Indian Magazines and certain regional channels. All of them above petitioners are challenging the Constitutional validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.

The new Rules require social media intermediaries to censor, or otherwise modify, content that relates to the Central Government if a government mandated fact checking unit (FCU) directs them to do so.

The Court reiterated its remark that the government cannot be the final arbiter of what is true or false.

Solicitor General of India Tushar Mehta, arguing on behalf of the Ministry of Electronic and Information Technology, said that after the government’s FCU has flagged something as fake, false or misleading, the social media intermediary will have the option of either pulling it down or putting a disclaimer regarding the same. He argued that the government would not be an arbiter, it will only be the Court that will decide.

The Court said, “If the government body says something is misleading. The intermediary will save itself and hence take down the content on its own but this will result in unreasonable restriction, or have a chilling effect under Article 19 (freedom of speech and expression) of the Constitution of India.”