Welcome to Degen Lawyer's Newsletter, this week we bring you some fascinating news. Every week we serve up curated analysis, hot takes, and expert commentary on all things emerging tech and law, sprinkled with a healthy dose of wacky and meme-worthy. Enjoy!

In this week’s edition:

WHAT’S HAPPENING AROUND THE WORLD

1. Bombay High court delivers split verdict on ‘FCUs’ constituted under amended IT rules.

   Bombay High Court delivered a split decision on the constitutional validity of the amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which empowered the government, through the Fact Check Unit (FCU) to identify ‘fake news’ on social media platforms. The matter will now be undertaken by a third judge appointed by the Chief Justice. Let’s see if the judicial referee can sort it out!

2. EU moves a step forward with its AI law

   The Committee of the Permanent Representatives of the Governments of the Member States to the European Union (Coreper) validated the political agreement on the Artificial Intelligence Act (AI Act), formulated by the European Parliament and the EU Council post negotiations, on 8th December 2023. This follows the turbulent history and opposition from Germany, France and Italy, who have finally relented.

3. ASEAN comes out with its guide on AI governance

   ASEAN released a guide for AI governance, aiming for responsible and secure regional AI use. This aligns with their goal of promoting technology ethically. Experts see the guide as a valuable contribution to global AI discussions but urge ASEAN to be bolder and consider the region's specific data challenges and cultural nuances when implementing AI. They believe ASEAN can be crucial in shaping ethical AI practices and fostering regional innovation. Ever since the EU has taken the lead on AI regulation, everyone is looking to get in their two cents on it!

   

THIS WEEKS DEEP READ

Digital Freedoms on Trial: Bombay HC's Verdict on IT Rule Amendments

In the rapidly evolving digital landscape, where the line between truth and misinformation blurs, a landmark case emerged from the Bombay High Court, stirring widespread debate and concern. At the heart of this legal battle were the amended Information Technology (IT) Rules and the government's attempt to curb fake news through a Fact Checking Unit (FCU). This case not only questioned the boundaries of free speech but also scrutinized the government's role in regulating online narratives.

The Core Issue

The controversy began with the introduction of the IT Amendment Rules, 2023, which aimed to empower the Central Government to establish an FCU. This unit's task was identifying and acting upon "fake, false or misleading" information on social media platforms, particularly concerning the government's business. The amendment sparked concerns among various stakeholders, including political satirist Kunal Kamra and prominent media organisations Editors Guild of India, News Broadcasters and Digital Association and Association of Indian Magazines. The petitioners contested the legal soundness of the revised IT Regulations, deeming them arbitrary, against the Constitution, and a breach of fundamental rights. The government, however, clarified that its intention wasn't to curb any form of critique, humour, or satirical commentary aimed at it. According to the government, the purpose of these rules is solely to eliminate the dissemination of incorrect, fake, and misleading information on social media that pertains to the affairs of the government.

Understanding the Fact Checking Unit (FCU)

The FCU represented a government-led initiative to sift through the vast ocean of digital content, flagging information deemed incorrect or misleading about its affairs. The proponents argued that such a mechanism was essential in combating misinformation and ensuring public access to authentic information. However, critics feared that this could become a tool for suppressing dissent and regulating speech under the guise of fact-checking.

Key Arguments and Counterarguments

The petitioners contended that the amendments to the IT Rules were ultra vires, or beyond the powers of the Constitution, violating the guarantee of freedom of speech under Article 19(1)(a) and the principle of equal protection under the law as enshrined in Article 14. They argued that the rules could lead to arbitrary censorship of content deemed unfavourable by the government, affecting not just individual users but also media organizations' ability to function without fear of retribution.

In contrast, the government and supporters of the amendment argued that the FCU is a necessary tool in the fight against misinformation, which can have serious implications on public order and national security. They maintained that the rules were designed with adequate safeguards, including judicial oversight, to ensure they do not overreach into the domain of free speech unjustly.

The Judgment: A House Divided

Justice Gautam Patel and Justice Neela Gokhale formed the division bench that issued the split decision. 

The central issue revolves around Rule 3(1)(b)(v) of the IT Amendment Rules, 2023, which requires intermediaries to make efforts not to host content misleading about the origin of a message or identified as fake or misleading by the FCU concerning the business of the Central Government. The judges disagreed on whether this rule implied one or two classes of content and the applicability of the knowledge and intent to mislead the requirement for content flagged by the FCU.

Justice Patel sided with the petitioners, including political satirist Kunal Kamra and media organizations, arguing that the amendment could lead to undue censorship and infringe upon fundamental freedoms of speech and expression. Patel expressed concerns over the government's unilateral power to classify content as fake, false, or misleading without adequate checks, highlighting the potential for misuse and the chilling effect on free speech. He emphasized the vagueness and overbreadth of the terms "fake," "false," and "misleading" within the context of government business, arguing that these provisions are ultra vires to the Constitution and the IT Act​​​​.

On the other hand, Justice Gokhale upheld the validity of the amendment, arguing that it met the test of proportionality and was necessary to ensure citizens have access to authentic information. She posited that the measures adopted by the government were consistent with the law's objectives and did not disproportionately encroach upon fundamental rights. Gokhale suggested that a grievance redressal mechanism and appellate authority provided sufficient safeguards against potential misuse. Moreover, she dismissed concerns over bias within the FCU, noting that courts remained the ultimate arbiters of any disputes arising from the FCU's decisions​​​​.

Given the split verdict, the matter will now be referred to a third judge for a decisive ruling. This case highlights the ongoing debate over the balance between combating misinformation and preserving freedom of expression in the digital age. The outcome of this case could have far-reaching implications for digital rights, government regulation of online content, and the role of intermediaries in moderating content​​​​.

The Future of Digital Freedom in India

As we await the final judgment from the third judge, the case serves as a critical reminder of the ongoing challenges in regulating digital spaces while protecting fundamental freedoms. It highlights the need for transparent, fair, and balanced regulations that combat misinformation without compromising the democratic ethos of free speech and expression.

Path Ahead

The split verdict from the Bombay High Court has set the stage for a third judge to ultimately decide on this contentious issue. This case underscores the delicate balance that needs to be struck between combating misinformation and safeguarding fundamental freedoms in the digital era. It raises critical questions about government intervention in digital content and the mechanisms in place to protect against potential overreach.

The case presents a complex intersection of law, technology, and human rights. While the intentions behind establishing the FCU may be to protect the public from misinformation, it's imperative that such mechanisms do not encroach upon the freedom of speech and expression. The ultimate judgment on this matter will not only affect the parties involved but also set a precedent for how digital content is regulated in India, highlighting the ongoing struggle to find harmony between truth, freedom, and responsibility in the digital domain.

DID YOU KNOW?

After reading up till here, you might be wondering which was the first original chatroom that led to social media as we know it today. Even if you were not, the answer is - ‘Talkomatic’! It was created by David Woolley and Dough Brown on the PLATO system in 1973 at the University of Illinois. Do you think this could have given Facebook a run for its money?

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