By 2:1 Majority Bombay High Court Allows Centre To Notify 'Fact Check Unit' Which Can Declare Social Media Content About Its Business As Fake

By a 2:1 majority and in a setback for the petitioners in the 2023 IT Rules Amendment Case, the Bombay High Court -in an interim order – has refused to restrain the Union government from notifying its Fact Check Unit.

Rule 3(1)(b)(v) of the IT Rules amendment 2023 empowers the government to establish a Fact check Unit and unilaterally declare online content related to the government's business on social media platforms as fake, false or misleading.

The social media intermediary then either has to remove the information or be ready to defend its actions in court if the need arises.

On Wednesday, the reconstituted bench of Justices GS Patel and Neela Gokhale pronounced the interim order after the third judge, Justice Chandurkar, opined that no case was made out for interim relief until he decides the clutch of petitions.

"The third judge has rendered his opinion. Consequently, the majority view is that the interim applications for stay and continuation of the previous statement (by the Union not to notify the FCU) are rejected," the order said.

Facts

On January 31, 2024, Justices Gautam Patel and Neela Gokhale delivered a split verdict on the clutch of petitions against the amendment to the IT Rules empowering the government to establish an FCU and identify false, fake and misleading information about its business on social media platforms.

While Justice Patel held the Rule should be struck down in its entirety, Justice Gokhale held the Rule was intra vires. The judgement was divergent on all aspects.

At the time of pronouncement, the question arose whether the Union would continue its undertaking initially made to the court about not notifying the FCU. The court asked for this question to be decided by the third judge who would be notified by the CJ to hear the matter. 

After the petitioners approached the Chief Justice, Justice Chandurkar's bench was chosen to deliver an interim opinion on notifying the FCU till he gives his deciding opinion on the issue.  

On Monday, Justice Chandurkar ruled that the balance of convenience favours the Union, considering the government's submission about not using the FCU to censor political opinions, satire, and comedy. Additionally, he said, any action taken after notifying the FCU would be subject to the final outcome of the petition and wouldn't cause irreversible damage.

Justice Gautam Patel's Verdict

In his split verdict Justice Patel said he would strike down Rule as it was a form of "censorship" as the amendment violated the right to free speech under Article 19(1)(a) of the Constitution.

"What troubles me about the impugned 2023 amendment, and for which I find no plausible defence, is this: the 2023 amendment is not just too close to, but actually takes the form of, censorship of user content."

The court further stated that the amendment made the government the final decision maker of not just what was false of misleading but also of the right to have an opposing point of view.

"By shifting responsibility for user content to the vulnerable segment, viz., the intermediary, the amendment of 2023 effectively allows the government, through its FCU [Fact Check Unit], to be the final arbiter not just of what is or is fake, false or misleading; but, more importantly, of the right to place an opposing point of view."

"There is no material difference between this and the newsprint cases of the 1990s. I should not be misunderstood: this is not a comment on this or that dispensation or the present government. I am only considering the effect of the impugned amendment," the judge observed.

Justice Neela Gokhale's Judgement

Justice Gokhale on the other hand held the Rules to be intra vires. Justice Gokhale rejected the argument that the impugned Rule, by encompassing critical opinions, satire, parody, and criticism, renders it unconstitutional. She underscored that the Rule specifically addresses content that is fake, false, or misleading; not genuine opinions or expressions.

She emphasized that the terms 'Fake,' 'False,' or 'Misleading' are to be understood in their ordinary sense.

Justice Gokhale stated that Section 79(3)(b) of the IT Act was read down in the Shreya Singhal case to only cover restrictions under Article 19(2) of the Constitution. Meaning, intermediaries lose 'safe harbor' or protection from hosting third party content only if the offensive information violates the reasonable restrictions in Article 19(2). However, according to the amended Rule, intermediaries did not need to directly “take down” content flagged by the FCU. Intermediaries had the option to issue a disclaimer instead with respect to content that didn't clearly violate Article 19(2) restrictions.

Case Title – Kunal Kamra v. Union of India with connected cases