THE SOLE ARBITERS OF TRUTH: A COMPARATIVE ANALYSIS OF THE KUNAL KAMRA SPLIT VERDICT

Mr. Snehal Bajpeyee

The ‘Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2023’ (hereinafter referred to as ‘amended IT Rules’) notified the formation of Fact-Check Units (hereinafter referred to as ‘FCUs’) through the amendment of Rule 3(1)(b)(v) of the IT Rules, 2021 (hereinafter referred to as ‘the impugned Rule’). The impugned Rule sought identification of ‘fake, false, or misleading’ information pertaining to any ‘business of the Central Government’ by the FCUs. In response, social media intermediaries were required to exercise reasonable efforts to refrain from displaying, uploading, modifying, publishing, transmitting, storing, or sharing such information.

The constitutionality of the amended IT Rules was challenged in the High Court of Bombay by the infamous stand-up comedian Kunal Kamra and he was joined by various other reputable organisations like the Editors Guild of India, the News Broadcasters & Digital Association, and the Association of Indian Magazines on the grounds of violation of Article 14 and 19 of the Indian Constitution and breakdown of principles of natural justice, proportionality, etc.

On January 31, 2024, the division bench comprising Justice G.S. Patel and Justice Neela Gokhale arrived at a split verdict in Kunal Kamra v. Union of India. Subsequently, Justice A.S. Chandurkar served as the third judge in the case and struck down the amended IT Rules on September 20, 2024.

This article strives to make a comparative analysis of the split verdict judgments, examining the differing judicial opinions, and offering the author’s insights and concluding remarks, to present a comprehensive understanding of the case's implications and legal interpretations.

A. Comparative Analysis of the Judgments

Interpretation

The first thing both the learned judges disagreed upon is how the impugned Rule should be interpreted. The question is whether the elements of knowledge and intention is being considered in the impugned Rule.

Justice Patel believes the disjunctive ‘or’ brings all the difference, separating the phrase ‘knowingly and intentionally’ from the impugned Rule. Furthermore, the impugned Rule is concerned with due diligence to be followed by an intermediary. An intermediary can only host content and does not create or communicate it. If it is assumed that the elements of ‘knowledge and intention’ are considered in the impugned Rule, it would result in a situation where an FCU identifies content related to the Central Government as ‘fake, false, or misleading’, but the content could still be hosted as users could claim they did not "knowingly or intentionally" share the content. As a result, intermediaries would never be required to remove such content, and it would be nearly impossible to prove a user’s knowledge or intent.

Justice Gokhale disagrees and states that the elements of knowledge and intention are being considered as the impugned Rule must be read in consonance with Section 79(3)(b) of the IT Act, 2000, which states that the safe harbour provision will not apply to intermediaries if upon receiving actual knowledge from an appropriate government authority of any information controlled by the intermediary for unlawful acts, the intermediary does not promptly remove or disable access to the material.

Hence, an intermediary's liability exemption hinges on its passive role in merely providing access to information. However, if it actively participates and fails to exercise due diligence, it forfeits safe harbour protections. Thus, the loss of this protection depends on the intermediary's knowledge and intent. With this view, Justice Gokhale flows many of her arguments and also disregards the accusation of ‘chilling effect’.

Biasness

If the FCUs are constituted by the government, does it raise concerns of potential biasness in their favour, making the government a judge in their own cause?

Justice Patel was of the firm belief that the impugned Rule allows the Central Government to act as a judge in its own case, contrary to established principles. The FCU decides if some content is fake, false, or misleading, but the criteria for this decision remain undisclosed. There is no hearing provided, despite the serious implications of such removal, like violations of Articles 19(1)(a) and (g) of the Constitution. Even in commercial disputes, due process requires a hearing. Moreover, users receive no evidence or explanation behind the FCU’s decision, making it impossible to contest effectively.

However, Justice Gokhale believed that the impugned Rule does not give FCUs the power of content removal. Its role is limited to identifying fake information related to the government. It is the intermediary that decides how to go about taking a reasonable action. Both the intermediary and the user have access to a redressal process, and the final decision still rests with the courts.

Through the judgments of Crawford Belly and Narayana Velur Beedi, Justice Gokhale concludes that it is irrational to attach the element of bias to FCUs for the sole reason that they are constituted by the government. “It will be a great disservice to the members of the FCU to attribute bias and predisposition to them, merely on account of them being government appointees. The mere fact that they happen to be appointed by the Government will not divest their character as independent persons”, she notes. 

Vagueness

FCUs are sanctioned to identify content related to the ‘business of the Central Government’ as ‘fake, false, or misleading’. However, the question arises, what can be said to be the ‘business of the Central Government’? Does everything related to it falls within the binary of truth and falsehood? How can the obscure word ‘misleading’ be defined?

In this context, Justice Patel states, “…in the real world -- perhaps most especially in our world of law -- few things are immutably black- or-white, yes or no, true or false. Lawyers and judges typically inhabit a world of well over fifty shades of grey.”

To consider the matter of truth from the perspective of Indian laws, Justice Patel turned to Section 3 of the Evidence Act, from which it can reasoned that facts relate to what we perceive or experience directly. For example, the actual words a person says or hears are facts, regardless of whether those words are true or false. Determining the truthfulness of such content is a distinct matter. Similarly, he considers the definition of ‘Proof’, and concludes that there is an inherent impossibility of achieving absolute certainty or truth in all matters through our statutes.

Next, Justice Patel considers two texts to elucidate subjectivity of truth - John D. Caputo’s ‘Truth: The Search for Wisdom in the Postmodern Age’ and Prof. Schauer’s ‘Proof: Uses of Evidence in Law, Politics and Everything Else’, which further substantiates the point that there exists a key flaw in the impugned Rule: it assumes that determining what is ‘fake, false, or misleading’ is always possible, and places that authority solely in the hands of the government when it concerns its own business. In the marketplace of ideas, it should not be upon any agency to decide what content should the users consume or not consume.

Relying on her interpretation of the impugned Rule, Justice Gokhale is convinced that it does not target false information directly. Instead, it focuses on cases where an intermediary fails to prevent users from intentionally sharing information, that they know to be false. It’s important to distinguish between truth and falsehood, which can be subjective, and "fake" information, which involves facts that do not exist at all. The Rule applies only to fabricated information based on non-existent facts. Therefore, content like critical opinions, satire, or parody, even if directed against the government, is not covered by this Rule, as long as it is based on real facts and is not intentionally false or misleading.

The argument that the phrase ‘fake, false, or misleading’ is ambiguous is not valid. When interpreting laws, it’s not correct to focus on interpreting a single word without considering its surrounding words. Each word should be read in conjunction with its neighbouring terms. Without its preceding and succeeding words, they should be understood in their ordinary sense.

Moreover, ‘Business of the Central Government’ has been mentioned under Art. 77 of the Indian constitution and under Transaction of Business Rules, 1961. It’s not a completely new term introduced by the impugned Rule and it can be reasonably interpreted from its previous mentions that ‘business of the Central Government’ refers to the official business transactions done under the central government.

Safe Harbour

One of the key provisions of the IT Act, 2000, Section 79(1), provides for the safe harbour provision which states that intermediaries will not liable for any third-party information, data, or communication links they host or make available, as long as they meet the conditions under Sections 79(2) and 79(3) of the IT Act, 2000.

However, the amended IT Rules encompasses Rule 7, which states that if an intermediary does not follow these rules, it loses its safe harbour and can be held accountable under any applicable law, including the Act itself and the penal code.

Justice Patel contends that the amended IT Rules override Section 79 and establishes a new mechanism for law enforcement. If an FCU determines some content to be ‘fake, false, or misleading’ and under the ambit of ‘business of the Central Government’, it can direct intermediaries to not display, upload, modify, publish, transmit, store, update or share such information. And if such direction is not followed, Rule 7 can be enforced upon such intermediaries, resulting in loss of safe harbour.

The removal of safe harbour protections for intermediaries is far more than just a simple regulatory change. Safe harbour is central to safeguarding freedom of expression online, providing protection not only for intermediaries but also, through them, for their users. Intermediaries, by their nature, do not hold any direct interest in specific user-generated content, nor can they be expected to. As a result, when the publication of content poses commercial risks, such as the possible loss of safe harbour protection, intermediaries will prioritize avoiding those risks. Hence, threatening intermediaries with the loss of statutory safe harbour essentially compels or encourages censorship, whether directly or self-imposed.

Justice Gokhale believes that this contention is based on second guessing the intent of the government. The impugned Rule only mandates the intermediaries to make ‘reasonable efforts’ to cause the user to not host, share, upload, etc, any misinformation. Reasonable efforts, as contemplated in the impugned Rule, doesn’t refer only to taking down the flagged content, but may come in the form of a disclaimer as well. Even without the amendment, intermediaries already issue disclaimers and warnings about offensive content as per their existing terms and policies.

An intermediary loses its safe harbour only if it doesn’t make any reasonable effort to curb the flagged content, i.e., if it puts no efforts at all. Furthermore, the amended IT rules provide for a grievance redressal system and the 2009 Blocking Rules protect content from being arbitrarily taken down.

The judicial opinions reveal a clash in interpreting the amended IT Rules. Justice Patel highlights risks of bias, vagueness, and censorship, stressing the lack of due process and the subjective nature of identifying "fake, false, or misleading" content. Justice Gokhale, however, defends the rules, emphasizing intermediary autonomy and the FCUs’ limited role in identifying misinformation without direct removal. Their differing views reflect the broader tension between safeguarding free expression and regulating online misinformation.

B. Personal Remarks and Conclusion

The two judicial perspectives stand united in their aim to protect freedom of speech but divided in their approach. Justice Patel’s cautionary stance emphasizes the risks of vague terms like “fake, false, or misleading” and the potential for bias in FCUs, which could lead to arbitrary censorship. His focus on what could go wrong highlights the need for clearer safeguards to prevent misuse and protect democratic discourse.

Justice Gokhale, in contrast, relies on existing legal frameworks, such as Section 79 of the IT Act, to argue that intermediaries retain autonomy and that FCUs’ role is limited to identifying misinformation, not removing content. Her trust in the system reflects confidence in its ability to balance regulation with rights, though it may underestimate the risks of government overreach.

While both judges aim to safeguard free expression, Patel’s scepticism underscores the need for accountability, whereas Gokhale’s faith in existing laws suggests their sufficiency. Together, the split verdict highlights the delicate balance between regulating misinformation and protecting fundamental rights in the digital age.

The fact remains that the internet has unparalleled power to shape public opinion, often blurring the boundaries between truth and falsehood and resulting in serious consequences. The author believes that FCUs can serve a significant role in the modern world, however, the core problem with the formation of government-backed FCUs is its potential misuse due to probable bias and partiality. FCUs exist in many other countries and scholars have previously noted its role in changing the perception of truth in favour the ruling governments.

The author is of the opinion that the FCUs under the impugned Rule is a specimen of a poorly drafted legislation that suffers from vice of vagueness and creates unnecessary discussions. The allegations of biasness, vagueness, loss of safe harbour, etc, are genuine concerns raised by the petitioners that must be clarified by the government before its formulation.

If FCUs are to enter this space, they must be established with clear guidelines and precise language. Additionally, FCUs must be structured to ensure impartiality, like having equal number of government appointees and private members with decision-making power. By striking down the impugned Rule, the judiciary has made sure to eliminate any room for potential misuse. A legislation must serve its intended purpose without compromising fundamental rights or constitutional principles.

(Mr. Snehal Bajpeyee is a 2nd Year BALLB student at National Law University, Assam)