Bombay High Court Strikes Down 2023 Amendment to IT Rules: Implications and Analysis

Background

The Bombay High Court recently struck down the 2023 amendment (the “2023 Amendment”) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “Intermediary Rules”). This amendment, which pertained to Rule 3(1)(b)(v) regarding due diligence by an intermediary (the “Impugned Rule”), was invalidated by Justice Atul Chandurkar, the third-referral judge, following a split decision by the division bench of the Bombay High Court on January 31, 2024.

Judgment Analysis

On January 31, 2024, the division bench of Justice GS Patel and Justice Neela Gokhale delivered a split decision in Kunal Kamra v. Union of India. The primary issue was the validity of the 2023 Amendment, which removed immunity (“Safe Harbour”) for intermediaries from liability for third-party content if they failed to remove content flagged by the Central Government’s fact-check unit (“FCU”) as fake, false, or misleading.

Justice Patel struck down the 2023 Amendment citing vagueness, lack of proportionality, and inadequate procedural safeguards, emphasizing the importance of Safe Harbour in protecting free speech. Conversely, Justice Gokhale upheld the amendment, arguing it fell within the ambit of reasonable restrictions under Article 19(2) of the Indian Constitution.

The matter was referred to Justice Chandurkar, who on March 11, 2024, allowed the Central Government to notify the FCU. However, India’s Supreme Court stayed the notification the next day, pending the final verdict.

The Ruling

Justice Chandurkar upheld Justice Patel’s judgment, striking down the 2023 Amendment as violative of Article 14 (equality before law), Article 19(1)(a) (protection of freedom of speech and expression), and Article 19(1)(g) (right to practice any profession) of the Indian Constitution, and for exceeding the scope of the Information Technology Act, 2000 (the “IT Act”).

Key Points of the Judgment:

• Scope of Opinion: Justice Chandurkar’s opinion was limited to points of disagreement in the split verdict.

• Reasonable Restrictions: He concurred that the 2023 Amendment imposed restrictions on free speech beyond the scope of Article 19(2).

• Right to Practice Any Profession: The amendment infringed on Article 19(1)(g) by targeting digital media without similar scrutiny for print media.

• Judge in Its Own Cause: The FCU’s role was deemed violative of Article 14, as it acted as a judge in its own cause.

• Knowledge and Intention: The Impugned Rule was found unconstitutional for its differential treatment of intermediaries based on content related to the Central Government’s business.

• Scope and Applicability of Expression: The amendment was criticized for its vagueness and potential chilling effect on free speech.

• Beyond the Scope of IT Act: The 2023 Amendment was not implemented in compliance with the IT Act’s requirements.

• Proportionality Test: The amendment failed the proportionality test, as it could not be read down.

Our Comments

Justice Chandurkar’s ruling may end the case before the Bombay High Court, but the Central Government may challenge this decision in the Supreme Court. The ruling could influence legal challenges to FCUs set up by various state governments, though state FCUs differ in their authority and may not be directly affected. The judgment will likely shape future decisions on handling misinformation and online content in India.

By Ravi S. Raghavan, Majmudar & Partners, India, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact india@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 84 Brook Street, London W1K 5EH, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.