In Kunal Kamra v Union of India, the Hon’ble Bombay High Court, through a tie-breaking judgement by Justice Atul Chandurkar, struck down the Amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules), made in 2023.[1] A Division Bench had earlier decided on the constitutionality of these Amendments to Rule 3(1)(b)(v) of the IT Rules, leading to a split judgement on whether checking of information as false, misleading or fake by a Fact Check Unit (FCU) of the Central Government was violative of Articles 14, 19(1)(a), and Article 19(1)(g) of the Constitution.

 

Holding that the FCU was a disproportionate restriction, Chandurkar held that, the phrase ‘knowingly and intentionally’ in amended Rule 3(1)(b)(v) was held inapplicable to the business of the Central Government.

 

Changes in Compliance Burden for Intermediaries

The amended rule required an intermediary u/s 2(w) of the IT Act, 2000 (including social media intermediaries, significant social media intermediaries, online gaming intermediary) to make reasonable efforts itself and cause its users to not publish, display, transmit, etc. information (relating to Central Govt’s business) that the FCU has identified as false/misleading. The Court’s interpretation of application of phrase ‘knowingly and intentionally’ suggests that even continuance of hosting of such ‘false/misleading information’ identified by FCU unknowingly/unintentionally by the user would automatically lead to the intermediary losing safe harbor u/s 79(3) of the IT Act.

 

Striking down this Amendment, this judgement thus reduces the compliance costs of intermediaries in observing due diligence under Rule 3(1)(b)(v) and availing safe harbor. Such costs would otherwise have been high considering the infrastructure and regulatory compliance mechanisms these amendments would have required for availing safe harbor.

[1] 2024:BHC-OS:14750-DB

Authors & Contributors

Associate:

Debargha Roy