Supreme Court Stays Centre's Notification Of 'Fact Check Unit' Under IT Rules Till Final Decision By Bombay HC

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. 

" Why is the FCU is only for the Central Govt? Why isn't there some independent body for everybody and not jut for the Central Govt..,If the objective is to prevent fake news, then everybody is affected by fake news. It affects individuals more than govt. Elections are coming. This is the time when the public should have access to all information relating to Central Govt and not just filtered facts." 

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. 

" The rules make Central Govt the arbiter of truth regarding facts relating to itself."

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' 

FCU was notified yesterday. Interestingly, the Press Information Bureau was notified as the FCU. It is 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.  

"For 9-10 months this position has continued. Why the haste(in notifying the FCU)? The third judge is hearing from April 15. We can wait for the judgment."

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). 

" There can't be truth in the absence of exercise of rights under Article 19(1)(a). If the Govt says this is the truth which everyone must follow, it strikes at the core of Article 19. The very core of Article 19 is the right of the citizen to speak against the State. This Rule attacks the very core of Article 19." 

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.  

"In an electoral cycle, two versions exist and it is for the citizens to choose. This is the worst time to introduce this Rule when the public has to determine the truth on the govt performance of last 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 contended, " This is only restricted to the Governmental business as understood in the Constitutional sense. So if somebody criticises the Prime Minister, it will not fall within this. It will only relate to Governmental 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. 

There was a Facebook post that the Chief Justice asked people to come to the streets and protest. Fake post. They will have to put a disclaimer that as per the Fact Check Unit, this information is false.

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. 

The rule says they have to take "reasonable efforts" to take down. Suppose I am Facebook. And if I feel that this is not false and I don't put a disclaimer, what is the consequence? If another person has suffered because of the post, and he approaches the Court of law, then the intermediary will not be able to plead that it has safe harbour immunity. But it can continue to defend that the post is true.

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.