Fact-Check Units don't touch newspapers, but they do check duplicated content on websites. High Court of Bombay

 Fact-Check Units don't touch newspapers, but they do check duplicated content on websites. High Court of Bombay

In petitions filed by stand-up comedian Kunal Kamra and others opposing the implementation of Fact-Check Units through the modified IT Rules, 2023, the Bench deferred its decision.

The Bombay High Court today drew attention to a discrepancy in the fact that newspapers would not be covered by the changes to the content Technology Rules for Intermediaries, only their online platforms that might copy the same content. 

While debating petitions opposing changes to the Information Technology (Intermediary Regulations and Digital Media Ethics Code) Amendment Rules, 2023, a bench of Supreme Court justices GS Patel and Neela Gokhale made the comment.

Justice Patel said:

"Every newspaper is in the business of doing business with the government. We are excluding individuals with different concerns or goals, such as Mr. Kamra. Is a newspaper required to publish only content that has been approved by the government? This instruction is only applicable to social media platforms if there is no such need on the newspaper and the person copies the exact same article from the newspaper's website. The second (newspaper) is unaltered. I am unable to handle this at all.

In four petitions submitted by stand-up comedian Kunal Kamra, the Editors Guild of India, the Association of Indian publications, and the News Broadcast and Digital Membership, the Bench today reserved judgment.

It stated that it would make an effort to issue the ruling by December 1, 2023. 

When speaking on behalf of the Union Ministry of Electronics and Information Technology (MEITY), Solicitor General Tushar Mehta gave the Court the assurance that the Ministry would delay notifying the formation of Fact-Check Units (FCUs) until the verdict was rendered.

The petitions contested the IT Rules modifications, in particular Rule 3, which stipulates that the Central government may establish a Fact-Check Unit (FCU) with the authority to recognize and tag any online reports that it deems to be false or fabricated in relation to any of the government's actions.

Senior attorneys Navroz Seervai and Arvind Datar requested that the Court strike down the parts of the amendment that are being challenged for the following reasons:

The rules of 2023 are arbitrary, unlawful, and in violation of section 79 of the Information Technology Act, which exempts intermediaries from liability in certain circumstances, as well as Articles 14 and 19(1)(a) of the Constitution, which deal with freedom of speech and expression, and 19(1)(g), which deals with the right to trade and conduct business.

The reasonable limitations on free expression set forth in Article 19(2) of the Constitution do not apply to amendments. 

cannot establish executive authority over what may and cannot be posted. Only policies may be published.

As there is no provision for show-cause notice before to initiating action, the rules of 2023 do not adhere to the norms of natural justice.

The definitions of "blatantly false, fake, and misleading" and "government business" in the Rules are vague and overly general rather than being precise. 

The clauses of the 2023 rules have a "chilling effect" since they provide the government "monopolistic power" to choose what information must be shared about how it operates. 

To determine the validity of the material available on social media, the government would act like a judge. 

Except for a writ petition, which may be challenging given that there are factual issues at stake, the user whose content has been reported would not have any legal options to contest any takedown of his work. 

The FCU's communication is a requirement, not an advice.

SG Mehta disagreed with the petitioners' arguments and asserted that they had misread the modifications for the following reasons: 

Rules simply serve to control fake news; they do not forbid any expressing of opinion or criticism of the government.

Five parties were considered when formulating the rules: the internet user, the intermediary, the recipient, the government, and the general public.

It neither contains criminal penalties nor makes anything unlawful.

When FCU alerts the intermediary to any content, the content is not immediately removed. The intermediary had the option of immediately removing it or simply putting a disclaimer that the item had been reported. 

Any person who feels they have been wronged by the content may take the intermediary to court, which will ultimately judge whether or not the content is true. 

The monitoring of FCU was solely limited to the activities of the Central Government, including information regarding the policies, programs, notifications, rules, regulations, and implementation, among other things.

Only the "facts" pertaining to "government business" were governed by rules, which was a clearly defined word that included everything the executive did to carry out its constitutionally mandated duties.

The free speech rights of citizens were not intended to be restricted by rules.