Flagging of false news by Fact Check Unit under IT Rules will not lead to automatic take down: Central government to Bombay High Court

Any information identified as false and misleading by the fact check unit (FCU) under the amended Information Technology Rules, 2021 (IT Rules) would not result in automatic take down of such content, the Central government told the Bombay High Court on Tuesday. .In an affidavit filed by the Ministry of Electronics and Information Technology (MeitY), in the event any social media intermediary is notified of any false or misleading content, then after examining the content, it could either take it down or even choose to continue allowing to display the same on its platform.“Under Rule 3(1)(b)(v) the identification of the Fact Checking Unit of the Central Government will have no binding effect on the intermediary nor would it have any effect in the nature of direction to block the said information/content as contemplated under section 69A of the IT Act”, the affidavit underscored.The affidavit was filed in response to the plea by stand up comic Kunal Kamra challenging the recent amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021). Kamra had submitted that any content flagged as false and misleading by the FCU would automatically result in taking down of the said content by the intermediary.The affidavit by MeitY stated that such a submission was completely unfounded and far from reality. .Any person aggrieved by such flagging of content by the FCU would always have a legal remedy, the affidavit said.“In case, where Fact Check Unit of Central Government intimates the intermediary that any information displayed on its platform is based on patently false and misleading facts, any person aggrieved by the availability of such information would be entitled to pursue any legal remedy, the court shall be the final arbiter of the factual correctness of the information,” the government submitted..The amendments to the IT Rules, specifically to Rule 3, provides that the Central government 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.Kamra has sought a declaration that rule 3(i)(II)(A), (C) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 is ultra vires section 79 of the Information Technology Act and Article 14 and 19(1)(a), (g) of the Constitution..MeitY clarified that Rule 3 only deals with due diligence to be followed by an intermediary. “The said provision in no way confers any power upon the Central Government to block any information, which power is separately provided under section 69A of the IT Act and to be exercised independently, by a separate authority,” the affidavit stated. It reiterated that aggrieved person would be entitled to approach the court of law and the intermediary will not have any safe harbour protections available to it.MeitY highlighted in its affidavit that the rules under challenge only seeks to redress “intentional communication of fake, patently untrue and misleading content.“The said rule in no circumstance proscribes or ventures into an arena where information/content which are based on true set of facts is sought to be forbidden” the affidavit underscored. .MeitY's earlier affidavit had opposed the petition stating that false and misleading information could impact the electoral democracy and weaken the trust of citizens in democratic institutions.The High Court had, however, expressed a prima facie opinion that as opposed to the affidavit, the rules did not seem to offer protection to fair criticism of the government like parody and satire.The case is slated to be heard on July 6. .Two new petitions before Bombay High Court against IT Rules Amendment