Supreme Court stays setting up of Fact-check Units to monitor social media content about government

The Supreme Court on Thursday stayed the notification issued by the Central government forming Fact Check Units (FCUs) under the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules (IT Amendment Rules 2023). [Kunal Kamra vs Union of India].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.The FCU of the Press Information Bureau, under the helm of the Union Information and Broadcasting Ministry, was notified yesterday.A bench of Chief Justice of India (CJI) DY Chandrachud with Justices JB Pardiwala and Manoj Misra took the view that the challenge to the validity of IT Rules involves serious constitutional questions and its impact on free speech and expression would need to be analysed by Bombay High Court.Hence, it proceeded to stay the notification setting up FCU. ."We are of the considered view that questions before the HC deal with core questions on article 19(1)(a). Pending adjudication by HC, we are desisiting to deal on merits which may foreclose assessment by the third learned judge. We are of the view that notification dated march 20, 2024, after rejection of application of interim relief, needs to be stayed. The challenge to the validity of 3(1)(b)(5) involves serious constitutional question and the impact of the rule on free speech and expression would need to be analysed by the High Court," the Court ordered.The Court was hearing petitions have been filed by stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines seeking on the notification of FCUs.The Bombay High Court had on March 11 rejected the plea for stay prompting them to move the apex court..Senior Advocate Darius Khambata, appearing for stand-up comic Kunal Kamra, stated that despite safe harbour provisions under Section 79 of the Information Technology Act protecting intermediaries, they might simply take down the content flagged by the FCU instead of taking any risk."Of course they will, why will they take that risk. It has a chilling effect on free speech! No intermediary challenged these rules! Why? Because they will protect their interests. They will happily be chilled. Justice Gokhale also said we had a case to make," he said.Khambata questioned why the rules focused on protecting the Central government."It is a question of Caesar judging Caesar. Centre is not a separate class. If the object is to prevent fake news, everyone is affected. Individuals even more," he added.As per Khambata, the rules assume that fake news is binary - true or false with no place for a marketplace of ideas."Elections are coming, public must have all information about the government. Not information filtered out as fake by Centre," he stated.Referring to the notification of the FCU yesterday, he said that PIB as the FCU was the biggest irony given that PIB was supposed to put out correct information on the government."They can now issue direction to intermediaries to take content down - ultimate irony," he explained..Advocate Shadan Farasat, appearing for the Editors Guild of India, argued that the government dictating whether or not something was true, struck at the core of Article 19(1)(a) (right to freedom of speech and expression) of the Indian Constitution."The judges (of High Court) have proceeded on the assumption that the govt is a good boy. the critique business of the govt is why article 19(1)(a) exists. now the fact check unit notified actually supports my argument," he said.He underlined that the model code of conduct (MCC) was in place and argued that it was the worst time for the FCU to be notified given that potentially, the government's version will become the only version of truth."How will investigative journalist work at all? It is through several sources in the government. Now a central authority will stamp out all other voices. It even impacts the disputed question between Centre and state. This is the worst time for this and hearing is on April 15," he added..Solicitor General Tushar Mehta underlined that the medium being dealt with was uncontrollable and spanned across borders."What bothered government is that false news of the government being flashed across intermediaries. Like there is going to be a huge covid influx and then people start queuing up for grains etc," he explained.He stated that with the new regulations, intermediaries are not required to take violative content down but are required to display a disclaimer that FCU says that the content is fake.He added that if Facebook thinks that a post on its platform is not fake and refuses to add the disclaimer, an aggrieved person can approach a court and Facebook would not be able to plead that they are protected by safe harbour..In response, the CJI asked whether it would be the intermediary's burden to prove the truth. SG Mehta replied in the affirmative and clarified that it would be restricted only to government business."If someone criticises the prime minister. It would not fall under this," he stated..The Court took note of the fact that the final hearing on the challenge to the IT Amendment Rules itself would commence before the Bombay High Court on April 15.The Court further noted that Justice AS Chandurkar's March 11 order rejecting plea for stay referred to the fact that the FCU had not been notified and the judge chose not to stay the rules since FCU was not in place.But the same came to be notified on Wednesday..Accordingly, the Court took the view that the challenge to the validity of IT Rules involves serious constitutional questions and its impact on free speech and expression would need to be analysed by Bombay High Court.Hence, it proceeded to stay the notification. .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 appeals before the apex court.