Social media platforms under no compulsion to take down content flagged by FCU: Govt

MUMBAI: Hearing the Centre’s submission to justify its fact check unit (FCU) rule to weed out fake, false and misleading information on social media about central government business, the Bombay high court asked solicitor general Tushar Mehta to consult government officers on its stand. “You may want to reconsider your position that an intermediary (social media platform) has the option of doing nothing when it receives a communique from the FCU.”The court was responding to Mehta’s submission that a social media intermediary when informed by the FCU of ‘fake or false content‘ had no obligation to comply by taking down or deleting the post. He said the intermediary, should he choose not to act, can be taken to a judicial court though, which will be the final arbiter of who is right, and it does not automatically result in loss of safe harbour.
At the end of the hearing, the judges asked the Centre to consider if the FCU is still needed if it places no obligation on those carrying content that may be flagged. The court said the fact check unit of the Press Information Bureau is still in place to flag false content, unless the new amendment has been brought “to compel”.
A bench of Justices Gautam Patel and Neela Gokhale was hearing petitions filed by standup comic Kunal Kamra, Editors Guild of India and others challenging the constitutionality of the rule allowing the Centre to establish a FCU. The FCU is part of the Intermediary Guidelines and Digital Media Ethics Code) Rules, amended this April, under the Information Technology (IT) Act.
Earlier, Mehta said the rule is necessary to “regulate” the internet where information is flashed across the globe in nanoseconds. Print and TV media, on the other hand, are governed by rules and norms. “What I may say irresponsibly would not get published in the TOI,” said Mehta.
The fact-check rule, he said, is “not a penal provision”, and doesn’t seek to criminalise any person or action. He said, “right to receive correct information is also a fundamental right”. “False speech” has no constitutional protection, he added.
Justice Patel said, “as we understand, you have said it is not a curb on free speech but the reverse, as it limits the exercise of powers …to content identified as being business of government” and secondly, that the FCU has to inform the intermediary of “false or fake content,” else there can be no obligation on the intermediary to comply. Mehta agreed. At the end, Justice Patel wanted to know how the Supreme Court read down IT Act provisions in the Shreya Singhal case. Mehta said the SC was dealing with a criminal provision that must be precise. The judge also raised questions about the IT Act’s definition of ‘information’ and ‘data’. Mehta said he would answer queries raised by the HC on Wednesday when the hearing would continue.