Why should Fact Check Units under IT Rules 2023 apply only for government business? Bombay High Court asks

The Bombay High Court today questioned the Central government as to why the Rules concerning powers granted to Fact Checking Units (FCUs) could not apply to all online content, irrespective of whether that content is about government business..A Bench of Justices GS Patel and Neela Gokhale was hearing petitions challenging the amendments of 2023 to IT Rules, specifically those to Rule 3, which provided for formation of FCUs empowered to identify and tag what it considered was ‘false or fake online news’ with respect to any of the government's activities.In an affidavit, the Union Ministry of Electronics and Information Technology (MeitY) justified it decision, saying that one-sided information would be spread across social media about government activities and citizens may act on it without or before government makes an official announcement..During the course of hearing, the Court put a query to MeitY as to why the monitoring was only limited to the business of the government and not to every piece of information on the internet. “The reply says we need to do this because we are 'in loco parentis'. But why only for business of government? You should be ‘in loco parentis’ for everything. Internet is fertile ground for hoaxes. Every day we get messages saying do not open this link, or else mobile will blast on your face...What about such messages?”.The Court also observed that the powers bestowed upon the FCU through the amendment was sort of a ‘diktat’ as it did not give an opportunity to the intermediary to justify or defend the content.“If you see the rule, it is an instant knockout. If you don’t remove content that is flagged, you do not get a show cause notice. The moment a directive comes from the FCU, one will not get an opportunity to show. It kicks in automatically like a diktat, hence the principles of natural justice come into play,” the Bench noted. .The Court added,“The consequential effect of the Rules itself is remarkable without show cause notice. Why your refusal to comply should lead to deprivation of safe harbour? It is deprivation of safe harbour for you as an intermediary.".The Bench was hearing petitions by stand up comic Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines and the New Broadcast and Digital Association.While Senior Advocate Navroz Seervai concluded his submissions on behalf of Kamra, Advocate Shadan Farasat made submissions on behalf of the Editors Guild of India.Farasat submitted that the Rules were in violation of Article 19 of the Constitution as it gave the government complete monopoly on information about its own functioning. He also argued that there were media houses that published content in print as well as digital media, and the fact that the FCU did not apply to print media made it arbitrary. The Court seconded this submission and wondered if the government was going to find any solution to this. The remaining petitioners in the matter will be heard tomorrow..Fact-Check Units under IT Rules, 2023: Can a statute have unbound discretionary authority? Bombay High Court asks