Bombay high court delivers split verdict on IT rule on govt’s fact-checking unit

The changes to the Information Technology Rules, notified on April 6, 2023, relate to information posted online in connection with the central government.

MUMBAI: The Bombay high court on Wednesday delivered a split verdict on a batch of petitions that challenged the constitutional validity of the new Information Technology (IT) rule that empowered the central government to set up a fact-checking unit (FCU) to filter social media platforms for fake news or misleading information.

The case will go to a third judge to resolve the conflict arising from two differing judgments (FILE PHOTO)

Justice Gautam Patel, who headed the division bench, struck down the controversial provision notified in April last year but the second judge on the bench, justice Neela Gokhale upheld the validity of the amendment.

The decision was pronounced on separate petitions filed by satirist Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines and News Broadcast and Digital Association, challenging Rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023.

This provision cast an obligation upon intermediaries (social media platforms) to make “reasonable efforts to cause users to not publish, display, upload or share information in respect of business of the central government that is identified as fake, false or misleading by the FCU as the ministry (ministry of electronics and information technology) may specify.”

According to Kamra, the rules infringe the freedom of speech and expression, as the term ‘business’ is broad and vague. The vague term had been used to “create a chilling effect where intermediaries will take down any information flagged by the FCO rather than risk losing safe harbour”, his petition said.

The rules, the satirist further said, made the central government the sole arbiter of truth in respect of its ‘business’ obliging private parties to impose that version of truth on all users.

Solicitor General Tushar Mehta, the government’s second seniormost law officer who appeared for the central government, argued that the objective behind the amendment was not to curb free speech, opinion, criticism or satire against the government or even the prime minister but to create a balancing mechanism to tackle a medium that was “uncontrollable and uncontrolled.”

“The government is not trying to proscribe and prohibit any expression of opinion, criticism, or comparative analysis and the government welcomes them, encourages them and learns from them. The IT rules only put a system in place,” Mehta said during arguments on the petitions last year.

He said that the government didn’t doubt the intelligence of its citizens and they could post anything they wanted and criticize the government, but fake, false and misleading information about the business of the central government would not be allowed.