Bombay HC sets aside IT amendment rules on govt’s fact-check unit

Mumbai: A single-judge bench of the Bombay high court on Friday set aside the IT Amendment Rules, 2023, which allows the central government to form fact-check units.

Justice A.S. Chandurkar's order breaks the tie of the split verdict given earlier by a two-judge bench of the high court regarding the validity of the IT amendment rules.

For now, the Centre cannot set up the fact-check unit (FCU) unless it gets a stay on this order from the top court.

A detailed order is awaited in the matter.

On 6 April 2023, the ministry of information and broadcasting announced certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for a fact check unit to identify fake, false, or misleading online content related to the government.

These amendments sought to grant the FCU authority to label online content related to the government as "fake or misleading" and order intermediaries to take down such content to retain their “safe harbour” or legal immunity against third-party content.

Also Read: No way to tell a fake: AI images face reality check

Following this, standup comedian Kunal Kamra moved the Bombay high court petitioning that the new rules announced by the Centre could potentially lead to his content being arbitrarily blocked or his social media accounts being suspended or deactivated. The Editors Guild of India, New Broadcast and Digital Association and Association of Indian Magazines have filed similar petitions in the matter.

Petitioners argued that the FCU could suppress free speech and lead to arbitrary censorship. Kamra's petition contended that the rules could unjustly restrict his content, infringing on his right to freedom of expression and his profession.

The Centre’s affidavit had said that the fact-check unit may only identify fake, 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 purported arbitrariness or unreasonableness as alleged by the petitioner (Kamra),” the affidavit said.

In January 2024, a division bench consisting of justices G.S. Patel and Neela Gokhale delivered a split verdict on the matter. While justice Patel called the amendment ‘unconstitutional’, justice Gokhale upheld the validity to the proposed amendments.

Justice Chandurkar agreed with the opinion of justice Gautam S Patel and struck down the amendment to the IT Rules, 2023 made through Rule 3. He said the said rule is 'ultra vires' of the IT Act and the expressions 'fake, false or misleading' are 'vague' and the 'test of proportionality' is also not satisfied. 

"All the petitions will be placed before the division bench to be decided," the judge noted.

In March this year, the Supreme Court had stayed the Centre's notification on setting up the fact-check unit. The top court also set aside the Bombay high court's 13 March interim order, which had refused to restrain the government from forming the unit.

The pleas challenging the government notification were filed in the Supreme Court by Kamra and the Editors Guild of India.

Also Read: Do we need to fact-check the fact-checker?

"Centre could file a special leave petition in the Supreme Court to challenge the decision, amend the existing rules to clarify definitions of misinformation and establish transparent processes for FCUs, and engage with stakeholders like intermediaries and civil society to balance the need for accurate information with the protection of fundamental rights," said Rashmi Deshpande, founder, Fountainhead Legal. “Careful legal evaluation will be essential in addressing misinformation while upholding constitutional principles.”

Mishi Choudhary, founder, Software Freedom Law Centre India, said, “A government can not be the arbiter of truth and use the state machinery for censorship of user-generated content.” 

Governments should never be in the fact-checking business as that's the job of independent media and civil society, Choudhary said. “Ambiguous rules from MEITY and MIB are crippling India's knowledge revolution. We need clear and light-handed guardrails in addition to laws on privacy and competition that work, not FCUs.”