Breaking | Fact Checking Unit Will Not Be Notified Till July 5: Centre To Bombay High Court In Kunal Kamra's Challenge To IT Rules Amendment

“I have instructions to make a statement that the FCU will not be notified till July 5”, Additional Solicitor General Anil Singh said.

The court was hearing comedian Kunal Kamra’s petition challenging Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 allowing the Government’s fact checking unit to identify “fake or misleading news” about government policies, etc.

A division bench of Justice GS Patel and Justice Neela Gokhale took note of Kamra’s plea that the amended rule even without the FCU notification will deter free speech.

“We believe this is not a reason to immediately go into the question of stay or suspension of the impugned rule as it stands, as without a fact check unit being notified, the rule cannot operate”, said the bench.

The court also allowed Kamra to amend his petition to challenge the Centre’s competence to amend the Rules. The amendment has to be filed by May 2.

The court directed the Centre to file a complete response to Kamra's petition including the amendment to the petition by June 6 and posted the petition for directions on June 8. The petition will be decided finally at the admission stage.

During the hearing today, the bench gave a list of relevant judgments for the final hearing and also pointed out that Kamra has not challenged executive's competence to amend the Rules.

In the previous hearing, the bench had observed that the new amendment to IT Rules 2022 prima facie lacks the necessary safeguards to protect satire and the challenge is prima facie “pressable”.

The Centre, in its affidavit seeking dismissal of Kamra's plea has stated that it would be in public interest for “authentic information” to be ascertained and disseminated after fact checking by a government agency “so that the potential harm to the public at large can be contained.” It has also said that Kamra's plea is premature as the FCU has not been notified yet and no social media intermediary has been directed to remove any content under the impugned Rule.

Kamra has alleged that the real motive behind the Rules is that the Central Government doesn’t want its actions to be scrutinized by anyone. The amendment wouldn’t be covered by any of the reasonable restrictions under Article 19 of the Constitution, he has argued.

In his written note submitted on Monday, Kamra while seeking ad-interim stay on the Rule, contended that the Rule arbitrarily discriminates between fake/false or misleading information about the Central Government as opposed to all other forms of fake/false or misleading information.

Background

According to Kamra’s plea, through the new rule Intermediaries (social media platforms) are supposed to make reasonable efforts to “cause” users not to upload or share “misinformation” or “misleading information”. This departed from the earlier IT Rules of 2021, which only required intermediaries to just “inform” users of their obligation not to upload or share “patently false or misleading information," Kamra's plea states.

Intermediaries are further meant to make reasonable efforts to cause users to not publish, or display information that "in respect of any business of the Central Government, is identified as fake or false or misleading” by the fact checking unit of government.

Kamra said he is a political satirist who relies on social media platforms to share his content and the Impugned Rules could potentially lead to his content being arbitrarily blocked, taken down, or his social media accounts being suspended or deactivated.

Additional Solicitor General Anil Singh along with Advocate Aditya Thakkar appeared for the Centre and Senior Advocate Darius Khambata along with Advocate Meenaz Kakalia, Advocates Arti Raghavan, Meenaz Kakalia, and the legal team from Internet Freedom Foundation, comprising Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh and Gayatri Malhotra. appeared for Kamra.

Case no. – WP(L)/9792/2023

Case Title – Kunal Kamra v. Union of India

(Compiled by Amisha Shrivastava)