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Synopsis

The Bombay High Court has delivered a split judgement in the petitions challenging the amended IT Rules establishing a fact check unit to identify fake and false news.

The division bench of the high court comprising Justice Gautam Patel and Justice Neela Gokhale said that the matter would now be placed before the thrid judge by the Chief Justice of the high court. 

“Each of us has pronounced separate judgement and have not been able to concur. The matter will now be placed before the Chief Justice to be referred to the third judge. As a matter of administrative courtesy to the Chief Justice and third judge, we note that the statement may continue for 10 days from today," the court said. 

 

Justice GS Patel has decided in favour of the petitioner and Justice Neela Gokhale has decided against the petitioners. The matter will be referred to a third judge of the high court. 

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.

Rule 3(i)(b)(v) of the amendments provides that the Central Government can identify fake or false or misleading content through a fact check unit of the Central Government which must be notified and published in the official gazette.

The division bench of the high court had reserved its order on 29th September 2023.

The petitioners had challenged the aforementioned provisions, contending that the rule was arbitrary and unconstitutional, as it violated Article 14 (Right To Equality), Article 19(1)(a) (Freedom of Speech), Article 19(1)(g) (Right to business and trade), and Section 79 of the Information Technology Act 2000, which provides safe harbour to intermediaries.

They also argued that an executive authority cannot be tasked with deciding what can or cannot be posted on social media.

Furthermore, they contended that there was a violation of natural justice as there was no provision for a show cause notice.

Additionally, it was argued that the terms "fake," "false," "misleading," and "government business" were not defined and therefore were too broad. They also contended that the government cannot be the judge of its own cause and decide what is fake, false, or misleading.

It was also argued that there was nothing great about the Central Government forming a fact-checking unit, and if false news is considered a problem, then the matter could be brought to the attention of the State Government.

Solicitor General Tushar Mehta, appearing for the central government, contended that the rules were framed after taking into consideration the interests of stakeholders, including internet users, intermediaries, recipients, the government, and the public at large.

He also argued that fact-checking through the fact-checking unit is a globally well-established mechanism for dealing with fake news and misinformation.

Mehta also cited international research conducted by MIT, which stated 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.

The Union argued before the high court that, since its launch 40 months ago in December 2019, the fact-checking unit had responded to 39,266 queries from the public.

Mehta also submitted that there would not be an automatic takedown of the posts. Instead, the intermediary would either have to add a disclaimer to the post or take down the post.

He submitted that the fact-checking unit would only flag posts related to the business of the government, which falls under Schedule 7 of the Constitution.

He informed the bench that rules were not framed to prohibit expression of speech or critical analysis of the government but only intended to target false news.

In the course of proceedings, the division bench had posed queries to the counsels appearing for both parties:

1. Will It Be Fake News If Different Analysis Is Given About State Of Economy From Government Statistics?

2. Will It Be Govt Business If Political Members Move From One Party To Another In Maharashtra?

3. Who Fact Checks The Fact Check Unit?

4. Why Do You Need Fact Check Unit if Press Information Bureau Serves The Purpose?