SC stays govt’s notification on setting up 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 notifying the fact-checking unit
New Delhi: The Supreme Court on Thursday stayed the Centre's notification on setting up a fact-checking unit to regulate content on social media that involves the government's business.
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 apex court stayed the notification till the high court decided on the constitutionality of the amended Information Technology Rules.
The ministry of electronics and IT issued a notification on 20 March designating the Press Information Bureau (PIB) as the fact-checking unit.
A three-judge bench, led by chief justice DY Chandrachud, noted that at this stage, it does not intend to express its opinion on the case or how it would impact the ongoing proceedings in the Bombay high court, which is expected to conclude the case on 15 April.
The apex court highlighted the need for a serious constitutional analysis of certain provisions of the amended IT Rules that empower the government to establish a fact-checking unit (FCU). The provisions also allow the government to unilaterally declare online content related to the government's business on social media platforms as fake, false, or misleading.
The pleas challenging the government notification were filed in the Supreme Court by stand-up comedian Kunal Kamra and the Editors Guild of India.
According to the notification, any information posted on social media related to the business of the government flagged as fake or false by the unit, must be taken down by social media intermediaries. Failure to do so would result in the loss of “safe harbor” immunity against legal proceedings arising from such posted information.
The Bombay high court had in January given a split verdict on petitions challenging the amendments to the IT Rules that allow the Centre to set up a fact-checking unit.
"We've been very concerned about the entire design of the internet, where the government will be the sole arbiter in deciding any kind of news coverage about its own affairs, especially on the eve of elections," Anant Nath, President of the Editor's Guild of India told Mint.
“The media's job is to question the government and scrutinize its claims on various policy issues, schemes, and their affairs. If the media's right to fact-check and conduct investigative journalism is hindered, then the government will have full authority to control the narrative, which goes against the norms of constitutional democracy,” Nath added.
According to Aviral Kapoor, partner at Alagh & Kapoor Law Offices, there is no provision in the new IT Rules for publishers to challenge the decisions made by government agencies. “While it is crucial to regulate the spread of fake or false news, this should ideally be overseen by an independent organisation. Alternatively, there should be a mechanism in place for publishers to contest the decisions made by governmental organisations,” he said.
The rules are far too subjective and can lead to censorship and put pressure on platforms to pull down information that is deemed fake or misleading by the FCU, said Natasha Treasurywala, partner, Desai & Diwanji. “Giving the FCU such wide powers is a slippery slope and the implications on censorship are far-reaching.”
"The unchecked discretion given to a government-appointed organization to adjudge whether or not government business-related content is fake/false or misleading is the core aspect under judicial review," said Avisha Gupta, partner Luthra and Luthra Law Offices. “Such discretion raises important constitutional law questions and also concerns around potential loss of statutory safe harbor for intermediaries that fail to take down such identified fake content.”
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First Published:21 Mar 2024, 05:21 PM IST
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