Supreme Court To Hear Tomorrow Pleas Of Kunal Kamra, Editors Guild To Restrain Centre From Notifying 'Fact Check Unit' Under IT Rules 2023

The Supreme Court will hear tomorrow a batch of petitions challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (IT Amendment Rules 2023), which enable the Central Government to create a Fact Check Unit(FCU).

As per the amendment, social media intermediaries should take down any information related to the Central Government's business, which the FCU has notified to be false, failing which the intermediaries will be exposed to legal liabilities.

Challenging these rules, stand-up comedian Kunal Kamra, Editors Guild of India approached the Bombay High Court. A division bench of the High Court delivered a split verdict, with Justice GS Patel striking down the amendment and Justice Neela Gokhale upholding the same. The third judge to whom the matter was referred to, Justice Chandurkar, refused to stay the amendment. During the pendency of the petition before the High Court, the Union Government had agreed to not notify the FCU. However, last week, with the third judge refusing to stay the amendment, the High Court allowed the Centre to proceed with the notification of the FCU.

Aggrieved by the High Court's judgment, the petitioners before the Supreme Court have sought a stay of the FCU, arguing that it will cause of chilling effect on freedom of speech and expression. They point out that the FCU was kept in abeyance for nearly 10 months during which the matter was pending in the High Court and argue the Union has not demonstrated that any prejudice has been caused to it due to the absence of the FCU. They also submit that the Union Government already has an effective mechanism, the Press Information Bureau, to give alerts about fake social media posts.

Kunal Kamra, in his petition drafted by Advocate Arti Raghavan and filed through AoR Prita Iyer, stated : "By threatening intermediaries with the loss of their statutory safe harbour should they fail to take down content that the Central Government's FCU identifies as fake, false or misleading, the Impugned Rule coerces intermediaries to execute a regime of self- interested censorship of online content relating to the business of the Central Government. Intermediaries – as profit making, commercial enterprises - would naturally choose to avoid civil or criminal liability for third-party content, and would invariably remove it."

Kamra stated that the impact of the Rule is actually on the users as they are not given any prior notice before the information posted by them are taken down.There is no effective remedy for a user against the take down. It  could also result in the potential suspension or deactivation of a user's account by the intermediary. He submittted that the Rule is extremely "broad in its sweep, and would operate to muzzle speech against the Central Government."

Seeking an immediate stay of the FCU, Kamra argued that the balance of convenience is the petitioners' favour and against the Union, as there exist less restrictive measures at the disposal of the Union.

Given the potential impact of the constitution of the FCU on fundamental rights, including under Article 19(1)(a) and Article 19(1)(g), the introduction of such a measure (by rejecting interim relief), must be avoided as a matter of law, the petitioner urged.

A bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra will hear the petitions of Kunal Kamra and Editors Guild of India tomorrow.