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    Fact Check Unit hearing: Here’s how petitioners responded to Justice Gokhale’s verdict

    “From the starting point, [Justice Neela Gokhale’s] entire discussion [regarding the Fact-Check Unit or FCU] is underpinned on a misconception of what [the petitioner’s] argument is [regarding the FCU amendment to the IT Rules, 2021],” said Navroz Seervai, legal counsel for satirist Kunal Kamra, in his final submissions before Justice A S Chandurkar – the referral judge in the FCU hearing. Seervai presented his rejoinder to Justice Gokhale’s verdict that upheld the fact check unit proposal as constitutionally permissible in a 92-page judgement. During the hearing, Seervai criticised the judge’s interpretation of the petitioner’s arguments and her understanding of certain provisions of the IT Act such as Section 69A, while citing previous cases like the Shreya Singhal vs Union of India judgement.

    The decision taken by Chandurkar based on these hearings will help the original two-judge Bench arrive at a majority view. Until then, the Supreme Court of India on March 20, 2024 has stayed the notification issued by the Ministry of Electronics and Information Technology (MeitY) for the formation of the FCU. Petitioners Kamra, the Editors Guild of India and the Association of Indian Magazines, on April 15 began presenting their arguments before the high court.

    Justice Gokhale’s judgement on Article 19(1) does not address subject matter: In her judgement, Justice Gokhale had found that the impugned rule satisfied the proportionality test of Article 19 and upheld the Shreya Singhal judgement. However, Seervai in his rejoinder pointed out that the Union of India’s original argument was that the impugned rule did not need to meet the proportionality test since it argued that false and misleading speech did not come under Article 19(1). Thus, he states that the decision made by Justice Gokhale did not address the concerns raised in the case.

    “[Justice Gokhale] says, if I find that within [Article] 19(1) itself you don’t have the right to say ABCD, whatever that ABCD is, then the question of [Article] 19(2) restriction…gokhales-verdict/s doesn’t arise, and the limit that can be put on it by government is unlimited and not constrained or confined to [Article] 19(2) …Clearly, it was not the subject matter of what had to be decided. What had to be decided were the questions posed by the majority and in which she actually emphatically concurs. I don’t know whether because of that she considers her judgment to be concurring… The entire discussion on [Article] 19(1) is an exegesis into an area which she travels or goes into alone,” said Seervai.

    Verdict fails to consider the broad definition of information: Comparing the current case to the Shreya Singhal judgement, Seervai argued that Justice Gokhale had failed to properly consider the Shreya Singhal judgement and restricted information to fact “when in resounding language in Shreya Singhal, the definition itself is all-encompassing and is inclusive.” Seervai said this is contentious because doing so excludes opinion and satire from the discussion, which lies at the heart of this case.

    “[Justice Gokhale] eliminate[s] from her consideration and discussion of 19(1) and 19(2) and of course, ultimately, 19(6)… opinion, satire, commentary, and dissent. One of our single largest challenges is on that. This over-broad, vague, nebulous, over-wide, will affect all these as well. And that’s where real discourse takes place. Look, discourse also, of course, takes place on fact. I’m not trying to underplay. Of course, it does. But a very vast and vital part of free speech is in these areas, which she completely eliminates and doesn’t deal with,” said Seervai.

    Verdict does not appreciate loss of safe harbor: Seervai argued that Justice Gokhale failed to grasp or appreciate the implications of the Rule on safe harbor for intermediaries. Justice Gokhale concluded that the Rule does not result in the loss of safe harbor for intermediaries and users, despite it being a fundamental concern. Stating that the judge had erroneously come to this conclusion, Seervai said:

    “The fact that [Justice Gokhale] says, loss of safe harbor is not automatic because you can go to a grievance redressal and you can ultimately get it decided by the court. Now, as Justice Nariman said [in Shreya Singhal vs Union of India], safe harbor is to protect a person from going to court. So, the minute you say you can go to court, you have lost safe harbor. Ignoring or not comprehending, one of the two, her ladyship says, there is no loss of safe harbor because you can do this.”

    He further rejected a sentence in her verdict that said “There are no direct penal consequences for either the intermediary or the user,” stating that penal consequences have been mentioned in Rule 7 and Section 45.

    Verdict contradicts its own argument on malice: Stating that Justice Gokhale introduced the concept of malice while talking about false information and safe harbor, Seervai said that her judgement contradicted itself by accepting that intermediaries and users have no way to prove the same.

    “In paragraph 41 [Justice Gokhale] destroys her own reasoning and her conclusions. [She says] “there is no gain saying that the intermediary has no way of determining knowledge of the user or intent of the user.” What remains?” asked Seervai.

    Similarly, Seervai asked how the FCU can be expected to determine the knowledge or intent of the user if the intermediary also cannot do so. “What is the process by which the FCU can divine, and I can’t think of a better word… whether that information against which the complaint was made by a third party is knowingly, intentionally done. Both these are subjective mental states of mind. And what is worse, you now have malice. Malice has destroyed qualified privilege in defamation,” said Seervai.

    Justice Gokhale extends the reasoning on knowledge and intent when discussing the vagueness of the words “fake,” “false,” “misleading,” “business of the central government.” Seervai questions how the reasoning converts the meaning of these words that have a chilling effect on speech.

    “Even the use of the knowingly and intentionally does not explain how, and [Justice Gokhale] does not explain how, that converts the words fake, false, which have been held by the other judge to be nebulous, entirely open, and therefore [have a] chilling effect,” he said.

    Justification on exclusion of satire is untenable: Repeatedly in her judgement, Justice Gokhale argues that content like opinion, satire, parody, howsoever critical of the government or its business, does not fall within the ambit of the Rule. It argues that truth is a binary and that an opinion falls outside its realm – an idea that Seervai said is untenable since, among other reasons, it contradicts the definition of truth in the Shreya Singhal judgement. He similarly criticised the notion that “fake is non-existent” pointing out that the government has not propounded the concept of non-existent facts.

    Why must Rules carry out 69A provisions? Seervai noted that Justice Gokhale in her judgement said that the impugned Rule is “framed” to carry out Section 69A provisions although no party has made this case. He went on to say that her judgement showed she had not grasped the content of some of these provisions.

    “I want to ask, whose case is it? Whose case is it that this impugned Rule is to carry out the provisions of 69A? 69A is narrowly tailored, show-cause notice, hearing a complaint made by some high-powered committee that you need to block it does transgress 19(2), then you get a notice, then you are heard, then an order is passed. Even within this, there’s a participation. She says the Rule doesn’t lead to blocking and take down, but 69A is only for blocking and taking down. So frankly, with utmost respect, I don’t think [Justice Gokhale] has quite grasped the content of some of these provisions,” said Seervai.

    No explanation as to how the Rule is constitutionally permissible: In her judgement, Justice Gokhale had said that the impugned Rule falls within the restrictions of Article 19(2). However, Seervai counters that the judge failed to provide an analysis of the four proportionality tests, or similar discussion/ reasoning explaining how the Rule falls within the right.

    “There is no discussion on proportionality. [She says] “the question as to who is to decide what is fake or false and what is authentic is important. But more pertinent is the question as to whether breach of constitutional morality arising out of manipulation of information needs urgent deterrence and whether the impugned Rule, termed as state-imposed limits, as a way to combat this, is a breach” I think this is again an exergue into something which nobody has argued. Nobody has brought in the concept to sustain or attack this rule, the impugned Rule on some amorphous principle of Constitutional morality? What does that have to do with proportionality?” said Seervai.

    Verdict misinterprets arguments of both parties: Seervai said that Justice Gokhale completely misunderstood petitioners’ as well as the government’s arguments regarding the FCU’s powers. He said that the petitioners challenged the FCU’s powers to determine a certain content as false while the judgement focused on whether the FCU should have the power to order take-downs.

    “We have not argued that the impugned Rule empowers the FCU to order a take down. We have argued and our written submissions, which are already on record, will establish this, and I don’t think the other side can deny or will deny it, that the impugned Rule enables the FCU to determine and identify content hosted by an intermediary and put up by a user as being fake, false, or misleading. The identification consequence is the necessary take-down by the intermediary on pain of 1. loss of safe harbor and 2. civil and criminal proceedings in a court of law. So, from the starting point, the entire discussion is underpinned on a misconception of what our argument is,” said Seervai.

    He then went on to criticise the judgement for wrongly discussing alternative options to take-downs, as well as the petitioner’s alleged stand that there no option of a ‘disclaimer.’

    “[Justice Gokhale said,] “The insistence of the Petitioners to deny the availability of an option of a ‘disclaimer’ inherent in the Rule is incomprehensible.” I’m not insisting. I’m saying the rule doesn’t provide it… The data are propounding it, the union propounds it, albeit saying not in the context of loss of safe harbor, but in the context of no automatic immediate takedown. There’s a difference. Because yes, you may lose safe harbor, but that you will contest in a court of law, which, according to Justice Nariman in Shreya Singhal means you’ve lost safe harbor.”

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    The post Fact Check Unit hearing: Here’s how petitioners responded to Justice Gokhale’s verdict appeared first on MediaNama.

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