Govt Fact Check Unit In Public Interest, Cannot Be Stayed At The Behest Of A Few Individuals: Centre To Bombay High Court

The Bombay High Court today reserved order on interim application by comedian Kunal Kamra and others seeking stay on formation of Fact Check Unit under 2023 amendment to IT Rules, 2021 till the pendency for their writ petitions against the amendment.

The 2023 amendment to the IT Rules, 2021 empowers the government to establish an FCU to identify fake, false, and misleading information about its business on social media.

Solicitor General Tushar Mehta argued at there cannot be an interim order which encourages public mischief at the behest of few individuals.

“I did make a statement (not to notify FCU), it is absolutely right. But now we have a position where we have a split verdict, and I would be failing in my duty to the people at large if I continue my statement for few individuals to have that comfort of no chilling effect. It would not be fair or proper to deprive the people at large of knowing the truth, especially when intermediaries are not before the court, private individuals are”, he said.

Chief Justice DK Upadhyaya assigned the matter to Justice AS Chandurkar after the division bench of Justice Gautam Patel and Justice Neela Gokhale delivered a split verdict in the writ petitions challenging the amendment. While Justice Patel held the Rule should be struck down in its entirety, Justice Gokhale held the Rule was intra vires. The judgements were divergent on all aspects.

The petitioners on Wednesday argued that both Justice GS Patel and Justice Neela Kedar Gokhale agreed that the amended rule, in its current form, violates the freedom of speech.

Courtroom Exchange

Today, SG Mehta highlighted challenges posed by social media platforms, such as their unlimited reach, anonymity, and potential for misinformation dissemination. Mehta insisted that once FCU flags something as fake or false, the social media intermediary is not obligated to do anything. If they put a disclaimer on the flagged content that it is fake as per government FCU, their safe harbour under section 79 of the Information Technology Act will continue, he said.

Mehta provided various examples of misleading posts circulating on social media, such as deepfakes on Ukraine President Volodymyr Zelensky and Hollywood actor Morgan Freeman, and said that FCU is the least restrictive way to address misinformation effectively. He argued that the amended rule does not impose any obligation to remove content.

He further said that safe harbour granted to intermediaries is not unconditional, and pointed out that no intermediary has approached the court against the amendment.

Justice Chandurkar pointed out the petitioners' contentions that FCU has not been notified till now and no prejudice has been caused by that. Mehta responded that as there is no FCU, no one has come to the government with any grievance. Thus, no data regarding any prejudice caused is available. However, all the cited examples of fake information occurred during this period, he said.

In rejoinder, Senior Advocate Navroz Seervai for Kunal Kamra pointed out that at least one judge (Justice GS Patel) has held that the amendment is a direct infringement of Articles 19(1)(a), is not saved by Article 19(2), and its language is vague and indeterminate. He said that many of the examples of fake information cited by Mehta were effectively countered by the Press Information Bureau, without any FCU.

Seervai contended that Mehta's contention on public interest implies that government is the sole repository of public good and ensuring public safety and well-being. This is called “nanny state”, he said. “The erroneous belief that government knows best, that only government can look after the interest and well-being of citizens who cannot be trusted to be intelligent, mature, discerning. Now my respectful submission is that such a theory has to be rejected”, he said.

Seervai further said that the amendment does not contemplate a disclaimer by the intermediary in case something is flagged by FCU.

Advocate Shadan Farasat submitted that even if a disclaimer is possible, it is still a restriction on freedom of speech, though not as extreme as banning or removing content. He said that this restriction does not fall under the eight grounds of reasonable restrictions under Article 19(2).

Advocate Gautam Bhatia argued that the balance of convenience is in favour of staying the amendment, as there are other tools such as PIB, Twitter community notes, etc. which can effectively counter false information. He further argued that not everything can be neatly categorized as factual or non-factual content, and there are many statements about the government whose nature of being factual or non-factual is in dispute.

After hearing arguments of both sides, the court reserved order on the interim application.

Case Title – Kunal Kamra v. Union of India with connected cases

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