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Mehta maintained that in cases where the government is the victim, the Fact Check Unit (FCU) would be limited to "Government Business" as stated in the constitution.
Solicitor General Tushar Mehta on Monday informed the Bombay High Court that the Central Government is not the final arbiter for deciding fake or false news on social media.
The tie-breaker judge, Justice AS Chandurkar, was hearing the petition challenging the constitutionality of the Fact Check Unit notified under the IT Rules.
The division bench of the high court comprising Justice GS Patel and Justice Neela Gokhale delivered a split verdict in the petitions challenging Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.
In the split verdict, Justice Patel struck down the amended rule establishing FCU while Justice Gokhale ruled against the petitioners.
The division bench of the high court passed the judgement in the petitions filed by stand-up comedian Kunal Kamra, the Editors Guild, the News Broadcast Digital Association and the Association of Indian Magazine challenging the constitutionality of the fact check unit established under the amended IT Rules.
Solicitor General Tushar Mehta, appearing for the Union Ministry of Information Technology and Broadcasting, informed the high court that the government was not the final arbiter in deciding what is fake and false news on social media.
"Suppose i made a post that my learned friend is corrupt. He invokes the provision. Then the intermediary may decide. The court may decide. I am not an arbiter. The government and private party are not arbiters. We are only informants. You (Intermediary) only have to show how your section 79 protection will continue. You will have to balance freedom of speech with other people's rights," Mehta said.
He informed the bench that the intermediary, upon being informed about fake or false news by the government or the victim, had three options:
1. Take down the content.
2. Add a disclaimer with the government’s view.
3. Decide not to take any action.
He added that it is up to the intermediary to prove to the court why its safe harbour protection under Section 79 should continue despite being informed and not taking action.
He emphasized that protection ought to be given to the person against whom any post is made because the user is rendered helpless without any information.
"Suppose I start a rumour and message is forwarded. The real culprit is the originator. We do not want to infringe upon the contract of intermediary or user. Therefore they have to disclose through a judicial order. Some remedies have to be given. Freedom of speech is salutory right but recipient of that freedom of speech has to be protected subject to proportionality test," Mehta argued
He also maintained that in cases where the government is the victim, the Fact Check Unit (FCU) would be limited to "Government Business" as stated in the constitution. Mehta emphasized that the FCU was not intended to curb free speech, satire, or criticism.
The high court will continue hearing the central government tomorrow at 2:30 PM.
Case title: Kunal Kamra & Ors vs UOI & Ors
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