The Supreme Court issued a stay on the notification establishing "fact check units" (FCUs) under the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules (IT Amendment Rules 2023) on Thursday. The decision came in response to petitions challenging the validity of the rules and their potential impact on free speech and expression.
The FCU of the Press Information Bureau, operating under the Union Information and Broadcasting Ministry, was notified recently. Under the IT Amendment Rules 2023, the Ministry of Electronics and Information Technology would have the authority to designate a fact-checking body tasked with identifying and tagging online news deemed false or fake concerning any activities of the central government.
A bench comprising Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra stayed the notification, recognising the constitutional questions raised and the need for a thorough analysis by the Bombay High Court.
Three petitions seeking an interim stay on the government's notification for forming FCUs were brought before the bench. The petitions were filed by comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines, challenging the FCU regime's potential for censorship and its impact on the right to information.
During the hearing, Senior Advocate Darius Khambata, representing Kamra, argued that despite safe harbour provisions under section 79 of the Information Technology Act, intermediaries would comply with FCU directives, potentially infringing on free speech.
"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... Elections are coming, the public must have all information about the government. Not information filtered out as fake by the Centre," Khambata argued.
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Advocate Shadan Farasat, representing the Editors Guild of India, highlighted the threat to freedom of expression posed by government oversight of what is determined to be "truth."
"The judges have proceeded on the assumption that the government is a good boy. The critique business of the government is why Article 19(1)(a) exists," Farasat stated.
Solicitor General Tushar Mehta defended the regulations, citing the challenge of regulating online content spanning borders. He clarified that intermediaries are required to display a disclaimer for flagged content rather than remove it entirely.
The IT Amendment Rules 2023, particularly Rule 3, have faced legal scrutiny in the High Court, with a split verdict delivered in January. The matter is now before a tie-breaker judge. Pending a final decision, the Supreme Court's stay halts the implementation of FCUs ahead of the 2024 Lok Sabha elections.
