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Solicitor General Tushar Mehta, representing the Central Government, stated on Wednesday before the Bombay High Court that none of the intermediaries were present before the high court because the rules were formulated in consultation with them.

“Intermediaries are rightly not here because this exercise was fully in consultation with them. One argument was why the state govt is not included. There has to be a consultation with the state. I may say this across the bar that some Intermediary has told us that you keep telling us that if this is true,” the SG said.

The high court was hearing multiple petitions including stand-up comedian Kunal Kamra challenging the amended IT rules establishing a fact check unit.

Solicitor General Tushar Mehta today also clarified that the intermediary would not have the option of doing nothing after a post is flagged by the Fact Check Unit. He said that the intermediary would either have to add a disclaimer to the post or take down the post.

Mehta further argued that the fact check unit would only flag posts that are related to the business of the government which are under Schedule 7 of the Constitution.

He further asserted that there was no provision in the law that would allow an aggrieved user to approach any authority for posting on social media against him and that the user can now under the amended rules approach the grievance officer.

During the hearing, the court remarked that the fact there are so many petitions indicated how polarised AI-generated content is.

“The fact that there are so many petitions filed itself indicates how deeply polarised it is. Fake image and sound are real problems and they are not a problem for the government but also for private parties. There are significant questions of identity and privacy. It is possible to take two Indian actors and show them nude. There will be public outrage. There are serious personal and moral problems. Recent images generated by AI and you want somebody to be removed you can do it. You want to substitute with waterfall you just have to tell the AI,” the court said.

Advocate Gautam Bhatia, representing the Magazine Association of India, argued during his submission that the determination of truth cannot be left to the government.

He emphasized that the question at hand is not whether individuals have the right to lie, but rather whether the government can decide the truth within the confines of the safe harbor provision.

Bhatia contended that if an intermediary does not take down content, then the safe harbour protection is lost, which amounts to coercion and compulsion, rendering the choice illusory.

Senior Advocate Navroz Seervai, representing Stand-Up Comedian Kunal Kamra, further argued that intermediaries would be liable to penal consequences. He added that the safe harbour protection is forfeited by intermediaries once they are forced to contest in court over whether they made reasonable efforts or not.

While citing an example Seervai said, “A person makes a statement in a certain context. There is a group of people or segments of society that understand the context and, in that context, do not find statements misleading. There is another segment that does not know the context in which the statement was made. Such a statement is left to subjective determination of fact check unit who may very well not know the context and may identify under the amended 3(1)(b)(v) with all the consequences that flow,” Seervai said.

The bench will continue hearing the rejoinder on Friday.

Case title: Kunal Kamra & Ors vs UOI