Kunal Kamra moves Supreme Court seeking stay on Fact Check Units under IT Amendment Rules

Stand-up comedian Kunal Kamra has moved the Supreme Court seeking an interim stay on the Central government notification for forming Fact Check Units (FCUs) under the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules (IT Amendment Rules 2023)..The IT Amendment Rules of 2023 provide that the Central government 's Ministry of Electronics and Information Technology can notify a fact-checking body which is empowered to identify and tag what it considers false or fake online news with respect to any activity of the Central government.It is Kamra's case that the FCU regime will in effect coerce social media companies to implement self-interested censorship of online content about 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 ... There is already a robust, existing mechanism to address the concern of fake news about the Central Government (in the form of the Press Information Bureau or the PIB)," his plea said. The Bombay High Court had on March 11 rejected the plea for stay prompting Kamra to move the apex court.The IT Amendment Rules 2023 amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).The validity of the IT Amendment Rules, 2023, specifically Rule 3, is already under challenge before the High Court through a clutch of petitions.On January 31, a division bench of the High Court comprising Justices GS Patel and Neela Gokhale delivered a split verdict in the matter.The matter is now before a tie-breaker judge. Meanwhile, the petitioners including Kamra sought a stay on formation of FCUs till a final decision on the matter but the High Court rejected the plea for stay leading to the present appeal before the apex court. As per Kamra's plea, though IT Rules seem to target intermediaries, effectively it is the users (content creators) who are affected by the same. "While the Impugned Rules (and the IT Rules in general) are facially directed at intermediaries, it is users (and the information created and hosted by them on various platforms) that are the subject of the Impugned Rules ... [it] is extremely broad in its sweep, and would operate to muzzle speech against the Central Government," Kamra has contended. The units would be empowered to direct social media companies to take down any content the government deems fake, false or misleading, but without due process, Kamra's plea states."The Impugned Rules do not contemplate the issuance of a notice to the user prior to the identification of information by the FCU, or prior to the takedown by the intermediary ... they would inter alia apply to any content hosted by intermediaries that contradict facts, figures or data of the government," the petition says. The Rules will lead to telecom service providers and social media intermediaries taking arbitrary action against content flagged by FCU..The units would enable muzzling of political speech and deprive citizens of their right to information by making the former the sole arbiter of truth on information and a judge in its own cause, it has been submitted."Petitioner, who is a political satirist, makes his living out of commenting on what can be stated to be the “business of the Central Government”. Further, most of the Petitioner’s engagement with the public is driven by social media. Any hindrance in accessing the accounts of the Petitioner will be a violation of his fundamental right to practice his profession ... will affect his livelihood and right to live with dignity," Kamra has said in his appeal..As per the plea, the concept of safe harbour is not solely for the protection of intermediaries from third-party liability. "The threat of suspension or deactivation of accounts will deter users from posting content in the fear that any criticism or opposition to government policy ... This institution of a chilling effect will greatly affect public discourse and have a negative impact on democracy as a whole as it is a direct attack on free speech, thought and expression," it has been submitted. .Kamra's plea was filed through advocate Pritha Srikumar Iyer and drawn by advocate Arti Raghavan.It is set to be heard tomorrow by a bench comprising Chief Justice of India DY Chandrachud with Justices JB Pardiwala and Manoj Misra.A similar appeal by the Editors Guild of India filed through advocate Shadan Farasat has also been tagged with it.