The battle over control of the internet, where cyber freedoms clash with laws, has always been intense. A key area of disagreement in India revolves around digital laws, particularly the application of Section 79 of the Information Technology (IT) Act, 2000. This section, known as the “safe harbor” provision, was designed to protect online intermediaries from liability. However, the government’s recent establishment of Fact Check Units (FCUs) has raised concerns about Section 79 transforming from a protective measure into a potential tool for government oversight. To better understand these changes, we will examine significant cases, such as Shreya Singhal v. Union of India and the current controversy involving stand-up comedian Kunal Kamra, to explore the evolving landscape of internet regulation in India.
The significance of Section 79, “safe harbor” was highlighted in the landmark 2015 case of Shreya Singhal v. Union of India. In this case, the Supreme Court struck down Section 66A of the IT Act, ruling it unconstitutional for restricting freedom of expression. The Court clarified that intermediaries are only required to block content upon receiving lawful orders from government agencies, introducing judicial oversight into the content-blocking process. This decision reinforced Section 79’s role in protecting free speech online while ensuring that content control is conducted in a fair and balanced manner.
Enter The Fact Check Units: A New Era of Regulation?
The Indian government was among the first to take steps against fake news by establishing Fact Check Units (FCUs). Under new regulations, intermediaries that fail to remove or block content labeled as “fake” or “false” by FCUs within a set timeframe risk losing their safe harbor protection under Section 79 of the Information Technology Act. This move has raised concerns about the expansion of executive power and potential censorship. Critics contend that allowing government-aligned bodies to define what qualifies as fake news, without judicial oversight, could turn Section 79 from a protective measure into a tool for governmental control. These concerns have led to legal challenges, such as the case involving comedian Kunal Kamra, underscoring the broader tension between regulation and free expression in the digital sphere.
The Kunal Kamra Case: Comedy, Critique & Censorship
The whole hoopla about Kunal Kamra made the star comedian have the focal points. He is a well-known stand-up comedian who is at home in social media circles and he happened to get caught up in the scandal. Largely marked by his corrosive sense of humor and withering critiques of the ruling regimes, Kamra, more often than not, actually, infuriated some of the sitting politicians. Kamra and other activists along with the journalists while criticizing the arbitrary aspect of the new rules, asserted that the government was attempting to draft the regulations based on whimsical and subjective opinions.
Against the order, Kamra moved to the Bombay High Court and bar the FCUs from implementing the notification as it would entail the government having almost uncontrolled power to control the online narrative. Among the arguments put forth in his plea was the assertion that such a mechanism would deny people their guaranteed rights to freedom of speech and expression enshrined in Article 19(1)(a) of the Indian Constitution. Importantly, the entertainer underlined the issues of the lack of the rights of appeal and the fact that the content was requested to be taken down because it was inconvenient or critical of the government.
The Supreme Court stayed the government notification regarding the FCUs, indicating that there may be merit in the concerns raised by Kamra and others The stay order has halted the enforcement of these regulations. The Supreme Court’s stay on the FCUs assumes great significance in balancing the need for regulations with the imperative of protecting basic rights.
A Milestone Ruling for Digital Freedom
On September 20, 2024, the Bombay High Court delivered a landmark judgment (Kunal Kamra v. Union of India and Ors and other petitions), striking down the amendments that had empowered Fact-Checking Units (FCUs). The court found these regulations to be lacking and warned that they risked, granting excessive executive control over online narratives. This decision echoed the concerns raised by Kamra and other free speech advocates about the absence of mechanisms for appeal or challenging takedown orders.
Justice Chandurkar’s ruling reinforces the necessity of judicial oversight to prevent government overreach in content moderation. By invalidating the FCU amendments, the court restored a delicate balance between combating misinformation and upholding digital rights. However, the broader issue surrounding Section 79 of the Information Technology Act and its role in regulating online content remains unresolved.
The Road Ahead
As we navigate, the future of Section 79 and digital freedom in India remains uncertain. While the Bombay High Court’s decision temporarily halts the government’s efforts to use FCUs as content regulators, it opens the door to new challenges and potential legislative reforms. The key question now is whether Section 79 will continue to protect free speech or evolve into a stricter system of government oversight.
Moving forward, it highlights the critical need for transparency, accountability, and balance in digital regulation. While combating misinformation is crucial, any solution must ensure that the voices holding those in power accountable are not silenced.
Authors: Bhumika Sharma & Smita Pandey