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Synopsis

The Bombay High Court, during the hearing of a petition filed by Kunal Kamra and three others challenging the establishment of the Fact Check Unit (FCU), raised questions about the necessity of such a unit when the Press Information Bureau (PIB) already fulfils the same purpose as the fact-checking unit would.

“Please consult your officer you may want to reconsider your option that the intermediary has the option of doing nothing. Take away the amendment then you have PIB. If it (PIB) can do that and serves the purpose, why do you need the amendment? Obviously, the amendment may do something further. If FCU says that this is false then compliance by the Intermediary is required. We won't hold you back. Otherwise, it would make no difference. Why do you need an amendment if you are not compelling?” the bench asked.

The Bombay High Court posed this question to the Solicitor General of India, Tushar Mehta, who was physically present to represent the Central Government during the hearing of the petition filed by Kunal Kamra and three others challenging the establishment of the Fact Check Unit (FCU).

The division bench of the Bombay High Court comprising Justice GS Patel and Justice Neela Gokhale was hearing a plea filed by Stand Up Comedian Kunal Kamra 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.

Solicitor General Tushar Mehta argued that if the Fact Check Unit (FCU) finds something false, fake, or misleading posted on social media, it would inform the social media intermediary about it. The social media intermediary would then have three options:

a. Take down the false, fake, or misleading post.

b. Add a disclaimer stating that the concerned government department has declared the news as false.

c. Take no action.

He further explained that in all of these cases, the aggrieved person can approach the competent court, and the court would decide whose view is correct and whether it is justified to take away the safe harbour protection of the intermediary.

SG further appraised the court that in the case of PIB as well it had sent an email to the intermediary stating that certain news was false and in one of the instances, out of 5 instances the intermediary had agreed to 2 and taken down the posts.

In response to this, the division bench asked Solicitor General Tushar Mehta about the purpose of the amendment if the social media intermediary still has the option to do nothing, as was the case with the Press Information Bureau (PIB).

Solicitor General Tushar Mehta argued that the amendment was not intended to curtail free speech, expression, satire, comedy, or sarcasm but specifically aimed at addressing false and misleading facts.

He illustrated his point with multiple examples of false and fake news on social media.

a. ‘Supreme Court ka bada faisla. 23 Saal ke liye ban huye EVM'

b. ‘People Holding Aadhar Card Will Get Rs. 50000’

c. ‘President of India Draupadi Murmu has resigned’

Mehta further added that government business under the amendment rule would mean only things covered under Schedule 7 List 1 of the Indian Constitution.

The high court will continue hearing the Solicitor General tomorrow.

Case title: Kunal Kamra vs Union of India