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Synopsis

The tie breaker third judge of the Bombay High Court has reserved its order in the petitions challenging the IT Rules Amendment which established a Fact Check Unit to identify fake, false and misleading posts on social media. 

The tie breaker Judge AS Chandurkar reserved its order today after hearing all the parties at length.

The high court reserved 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 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 third judge has earlier denied interim relief to petitioners to stay the fact check unit pending hearing of the case. Later, the Supreme Court granted interim relief to petitioners and stayed the FCU pending hearing.

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.

Solicitor General Tushar Mehta appearing for the Union Government argued before the Bombay High Court that the Central Government is not the final arbiter for deciding fake or false news on social media.

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.

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.

Case title: Kunal Kamra & Ors vs UOI & Ors