IT Rules Amendment | FCU Not Mandated To Disclose Truth Despite Purported Purpose To Ensure Informed Citizenry: Kunal Kamra To Bombay High Court

On Tuesday the petitioners in a plea challenging the 2021 IT Rules Amendment submitted before the Bombay High Court that there is no provision for the government fact check unit (FCU) to fulfil its purported intent of keeping the citizens informed.

“The ostensible purpose of the Rule is to ensure an informed citizenry. But the Rule doesn't require anything more than merely saying that statement A is false. What is the truth? No requirement of any disclosure. And this is important. Because if there was, then it could be tested. There are examples in the public domain where the PIB has said something is false. Others have countered with documentary evidence to show what they said to be false, actually it was the truth”, Senior Advocate Navroz Seervai for Kamra pointed out.

Senior Advocate Seervai pointed out that governments all over the world have data which is not in the public domain. He questioned whether FCU will have access to undisclosed information and pointed out that there is nothing in the Rule requiring FCU to disclose the basis of its conclusions.

“So just consider, words of indeterminate import, subjective satisfaction (of government FCU), material on the basis of which you (FCU) come to the determination not disclosed, and the ostensible purpose of the Rule is also not met”, Seervai highlighted.

Tiebreaker judge Justice AS Chandurkar was hearing petitions filed by comedian Kunal Kamra and others challenging Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The 2023 amendment to the IT Rules, 2021 empowers the government to establish an FCU to identify fake, false, and misleading information about its business on social media.

Seervai on Monday argued that the purpose of the FCU is to bring total state censorship on anything government doesn't want people to know, discuss, debate or question.

During the proceedings today, Seervai argued that a chilling effect on freedom of speech and expression is achieved by the vague and overbroad language employed in the amendment.

Seervai highlighted the ambiguity surrounding terms such as "fake," "false," and "misleading," which lack precise definitions in the IT Act or the IT Rules. He emphasized on the vagueness of “misleading”, which he claimed isn't even properly defined in the Union's reply affidavits in the present case, let alone the IT Act or the Rules.

Seervai said that the government employed a circular logic to define the term “misleading” by saying that information is misleading due to it being fake or false. He argued that the Union implicitly conceded to the petitioners' argument of vague language by failing to define "misleading" as a standalone term and bundling it with "fake" or "false" to evade scrutiny.

Seervai argued that the amendment presupposes a non-existent true-false binary and confers excessive discretion upon the FCU without specifying the basis for its determinations.

Background –

Through the impugned Rule, social media platforms are supposed to make reasonable efforts prevent users from publishing information that "in respect of any business of the Central Government, is identified as fake or false or misleading” by the fact checking unit of government.

According to Kamra's petition, he is a political satirist who relies on social media platforms to share his content and the Rules could lead to his content being arbitrarily blocked, taken down, or his social media accounts being suspended or deactivated.

Chief Justice DK Upadhyaya assigned the matter to Justice AS Chandurkar after the division bench of Justice Gautam Patel and Justice Neela Gokhale delivered a split verdict in the writ petitions challenging the amendment. While Justice Patel held the Rule should be struck down in its entirety, Justice Gokhale held the Rule was intra vires. The judgements were divergent on all aspects.

The Supreme Court last month stayed the Union's notification of the Fact-Check Unit (FCU) under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (IT Amendment Rules 2023). The stay shall operate till the Bombay High Court finally decides the challenges to the IT Rules amendment 2023.

The Supreme Court set aside the March 11 order of the Bombay High Court refusing to stay the implementation of the Rules and the consequential order allowing the Centre to notify the FCU. 

Case Title – Kunal Kamra v. Union of India