[IT Rules Amendment] "Fact Check Unit Will Not Be Notified Till July 5": Central Govt Tells Bombay High Court

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The high court asked the ASG to submit the compilation before the next date. The bench also allowed Kunal Kamra to amend his plea.

The Ministry of Electronics and Information Technology on Thursday informed the Bombay High Court that the newly amended IT Rules establishing a fact check unit will not be notified till July 5, 2023.

During the hearing, Senior Advocate Darius Kambatta submitted that whether the rule is operative or inoperative, the chilling effect is already there and that there is still a fear of saying anything.

Additional Solicitor General Anil Singh told the high court that he has instructions that the rules will not be notified till July 5. "I have instructions that the rule will not be notified till July 5 because Solicitor General Tushar Mehta will appear," said ASG Singh. 

Justice Patel responded to Kambatta and said that,

"If you are saying that you want to put out satire and you will be affected in May or June, then take a holiday," Justice Patel said.

The division bench of Justice GS Patel and Justice Neela Gokhale accepted the submission. The bench also asked ASG to submit the compilation of judgments before the next date and also suggested a few judgments that he could refer to.

Justice Patel also asked Senior Advocate Darius Kambatta as to if he is challenging the competence of the executive to make such a rule. "Are you challenging the competence of the executive? We have read your petition, but we can't find that," asked Justice Patel.

To this, Senior Advocate Darius Kambatta responded, "That will eventually follow because it is a subordinate legislation".

The bench then allowed Kambatta to amend the plea to challenge the competence and also allowed the Central Government to file a reply to the amended plea.

The bench then posted the matter on 8 June for further hearing. 

Stand Up Comedian Kunal Kamra has approached the Bombay High Court challenging amended Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).

Kamra has challenged the provision that empowers the government to fact-check social media posts through the fact-checking unit of the Central Government and take the posts down from social media.

The Central Government in its reply to the petition has said that the fact-checking unit is a globally well-established mechanism for dealing with fake news and misinformation.

“It is further submitted that fact-checking through fact-checking units is a globally well-established mechanism for dealing with fake news and misinformation. The International Fact-Checking Network ("IFCN") was launched in the year 2015 to bring together the growing community of fact-checkers around the world and the advocates of factual information in the global fight against misinformation” the affidavit read.

The Centre has also stated that the role of the fact check unit is restricted to any business of the Central Government, which may include information about policies, programs, notifications, rules, regulations, implementation thereof, etc. Further, it stated that the fact check unit may only identify fake or false, or misleading information and not any opinion, satire, or artistic impression. Therefore, the aim of the government with regard to the introduction of the impugned provision is explicitly clear and suffers from no arbitrariness or unreasonableness.

The government in its affidavit has cited the international research conducted by MIT which said that falsehoods are 70% more likely to be retweeted on Twitter than the truth and false news reached 1500 people six times faster than the truth.

Case Title: Kunal Kamra vs Union of India