21 March 2024 7:57 AM GMT
The Supreme Court on Thursday (March 21) stayed the Union's notification of the Fact-Check Unit (FCU) under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (IT Amendment Rules 2023). The stay shall operate till the Bombay High Court finally decides the challenges to the IT Rules amendment 2023.
Yesterday, the Ministry of Electronics and Information Technology notified the Press Information Bureau as the FCU. Any information posted in social media in relation to the business of the Union Government, which has been flagged as fake or false by the FCU, has to be taken down by the social media intermediaries, failing which they will lose the 'safe harbour' immunity against legal proceedings arising out of such information posted.
The Supreme Court, without expressing the merits of the pending challenge to the Rules before the Bombay High Court, was on the view that there exist prima facie grounds for staying the notification dated March 20, which makes the impugned Rules operational.
The Supreme Court has set aside the March 11 order of the Bombay High Court refusing to stay the implementation of the Rules and the consequential order allowing the Centre to notify the FCU. The Court observed that the challenge to the rules raises "serious constitutional questions". "The impact of Rule 3(1)(b)(v), as amended by in 2023, on the fundamental right to freedom of speech and expression would fall for analysis by the High Court," the Court observed.
A bench of Chief Justices DY Chandrachud, Justices JB Pardiwala, and Manoj Misra was hearing the Special Leave Petitions filed by Kunal Kamra, Editors Guild of India and Association of Indian Magazines challenging the refusal of the Bombay High Court to stay the implementation of the IT Rules 2023.
Petitioners' arguments
Appearing on behalf of the comedian Mr Kunal Kamra, Senior Advocate Darius Khambata submitted : (1) A FCU only for the Union Government and not for others is arbitrary; (2) FCU will mean that only the Government's version will be allowed; (3) The elections are round the corner, the FCU would become a tool for the Union to control what information goes out to the voters.
Mr Khambata underscored that the main problem of the FCU mechanism was letting the Central Government control the information to be consumed by the public. In doing so, the Union becomes a judge in its own case.
On The Notifying of FCU & Pending Decision Before The Bombay HC
The Bench was further informed that the FCU was "hastily" notified yesterday itself, emphasizing that the same wasn't done for one entire year. He pointed out that the Rules came into force on April 6, 2023. The petitions were filed in April itself and the Solicitor General agreed that the FCU would not be notified until the High Court delivered a final judgment.
Mr Khambata submitted that the Press Information Bureau (PIB) was noticed as the FCU, terming it to be 'Ironic'
Mr Khambata contended that PIB's notional role is to give objective and credible information about the government. However, now PIB is required to direct the intermediaries to take down 'false' content relating to the Centre. It was further highlighted that the users or consumers of such intermediaries do not have any remedy to challenge such a takedown of content.
Challenging these rules, stand-up comedian Kunal Kamra and the Editors Guild of India approached the Bombay High Court, which delivered a split verdict. While Justice GS Patel proposed to strike down the amendment, Justice Neela Gokhale ruled in favour of the rules subject to certain safeguards. The third judge to whom the matter was referred, Justice AS Chandurkar, refused to stay the amendment.
During the pendency of the petition before the high court, the Centre had agreed to not notify the FCU. However, last week, with the third judge refusing to stay the amendment, the Bombay High Court allowed the Centre to proceed with the notification of the fact-checking unit.
The senior counsel argued that there seems no rationale in notifying the FCU in haste, considering that the third judge's decision on the slipt verdict is still awaited.
The senior counsel argued that the intermediaries are only concerned about their commercial interests and they will be happy to take down contents flagged by the FCU. In this context, he highlighted that none of the intermediaries challenged the rules. Thus, the ultimate impact is on the user, who is left remediless.
FCU Attacks The Core Of Article 19(1)(a) - Submits Mr Farasat For Editor's Guild
Appearing for the Editor's Guild, Advocate Mr Shadan Farasat stressed that a government-controlled FCU attacks the fundamental right of free speech and expression under Article 19(1)(a).
Adding to the concerns raised by Mr Khambata of notifying the rules closely to the election season, Mr Farsat opined that having FCU at this point could intervene in the democratic process of the public judging the government's performance of the past 5 years.
He further highlighted that this would also affect the credibility of investigative journalism once alternative sources of information are restrained by the FCU.
Advocate Mr Gautum Bhatia appearing for the Association of Indian Magazines along with AoR Vrinda Bhandari, also submitted the need for a safe harbour immunity for the intermediaries and any law diluting such a guarantee of safety cannot be taken lightly. If the Rules are otherwise unconstitutional, the assurance of the Government that they would not be applied against political opinions or satire would not make the Rules valid.
Ultimate Arbiter Is Not The Govt. But The Court - FCU Only Deals With 'Govt. Business': SG Submits For The Union
Solicitor General (SG) Mr Tushar Mehta appearing for the Union submitted that the Government the FCU only flags fake news regarding government business to the intermediaries. The SG clarified that the impugned rules have been notified to manage 'Government Business' as defined in the transaction of business rules.
SG argued that the impugned rules are the 'least restrictive' measures adopted. Drawing a comparison from the power of the Government to issue directions to block content under S. 69A of the IT Act, the SG clarified that the FCU only cross-checks and informs the intermediaries of the false information from the official records.
Giving the example of recent fake news circulating on Facebook about the CJI, the SG explained the need for the present FCU in place to prevent public havoc and hysteria.
The CJI then asked whether the provisions require the intermediary to put a disclaimer
To which the SG explained that the rules require the intermediaries to make 'reasonable efforts' to take down a post alerted as false by the FCU. If the intermediary doesn't deem it to be false and continues the post, the safe harbour immunity would not be available in the event a third party approaches the court claiming to have suffered from the said post/ information.
Thus, in the event an intermediary is sued by a third party, the burden to prove the truth of the concerned post would lie on the intermediary.
The SG further submitted that the present FCU rules have not been challenged by any of the intermediaries.
Kunal Kamra's petition was drafted by Advocate Arti Raghavan and filed through AoR Pritha Iyer. A similar petition challenging the notification was also filed by the Association of Indian Magazines through AOR Vrinda Bhandari.
Case Details
Editors Guild of India v. Union of India & Ors. | Special Leave Petition (Civil) No. 6717-6719 of 2024
Kunal Kamra v. Union of India | Special Leave Petition (Civil) No. 6871-6873 of 2024
Association Of Indian Magazines Vs. Union Of India | SLP(C) No. 007124 - 007126 / 2024