SC puts Centre's fact-checking unit on hold

In a jolt to the Centre, the Supreme Court on Thursday stayed the notification setting up a fact-checking unit under the Press Information Bureau (PIB) to identify fake news about the Union government.

The fact check unit was notified on March 20 under Information Technology Rules, 2021, by the Ministry of Electronics and IT, amid concerns voiced by civil society groups and media outlets about the possibility of its misuse for potential censorship.

A bench headed by Chief Justice D Y Chandrachud set aside the March 11 order of the Bombay high court which had refused to grant an interim stay on setting up the FCU under the amended IT Rules to identify fake and false content on digital media about the Union government.

"We are of the considered view that questions before the HC deal with core questions on Article 19(1)(a) of the Constitution," the bench said, adding the stay shall operate till the Bombay High Court finally decides the challenge to the IT Amendment Rules, 2023.

"We are of the view that notification dated March 20, 2024, after rejection of application of interim relief, needs to be stayed. The challenge to the validity of 3(1)(b)(5) (of IT Intermediary Guidelines and Digital Media Ethics Code Rules 2021) involves serious constitutional question and the impact of the rule on free speech and expression would need to be analysed by the high court," the bench, also comprising Justices J B Pardiwala and Manoj Misra, said.

The top court was hearing an appeal filed by stand-up comedian Kunal Kamra and the Editors Guild of India challenging the order of the Bombay high court.

At the outset, senior advocate Darius Khambata, appearing for Kamra, submitted that a fact-checking unit only for the Union government and not for others is arbitrary and it will mean that only the central government's version will be allowed.

Khambata argued as the general elections are round the corner, the fact-checking unit would become a tool for the Union of India to control what information goes out to the voters.

"If the objective is to prevent fake news, then everybody is affected by fake news. It affects individuals more than government. Elections are coming. This is the time when the public should have access to all information relating to Central government and not just filtered facts," he submitted.

Khambata told the apex court that fact-checking unit under PIB was 'hastily' notified on March 20 despite the fact that the matter is listed for hearing before the high court on April 15.

He said internet intermediaries are only worried about their commercial interests and they will be happy to take down contents flagged by the fact-checking unit.

Appearing for the Editor's Guild, Advocate Shadan Farasat, contended a government-controlled fact-checking unit attacks the fundamental right of free speech and expression under Article 19(1)(a) of the Constitution.

Solicitor General Tushar Mehta, appearing for the Centre, submitted that the fact-checking unit would only flag fake news regarding government business to the intermediaries. He said FCU aims to prevent 'public havoc and hysteria'.

He submitted that the present FCU rules have not been challenged by any of the intermediaries.

The FCU will be the nodal agency to tackle or alert about all fake news or misinformation related to the central government.

The notification came days after the Bombay High Court declined to restrain the Centre from notifying the unit.

The high court had on March 11 refused to grant an interim stay on setting up a fact-checking unit (FCU) under the recently amended Information Technology (IT) Rules to identify fake and false content on social media against the government, noting that no grave and irreparable loss would be caused.

A single bench of Justice A S Chandurkar had said no case was made out to direct the government to continue its earlier statement that it would not notify the FCU pending hearing of the petitions against the IT Rules.

The pleas against the IT Rules were referred to Justice Chandurkar after a division bench of Justices Gautam Patel and Neela Gokhale delivered a split verdict in January.

While Justice Patel struck down the impugned rules, terming them unconstitutional, Justice Gokhale upheld them and dismissed the petitions.

Justice Patel had said the rules amount to censorship, but Justice Gokhale opined they do not have any chilling effect on free speech.

On April 6, 2023, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for an FCU to flag fake, false or misleading online content related to the government.

Under the IT Rules, if the FCU comes across or is informed about any posts that are fake, false, and contain misleading facts about the business of the government, it would flag the same to social media intermediaries.

Once such a post is flagged, the intermediary has the option of either taking down the post or putting a disclaimer on it.

In taking the second option, the intermediary loses its safe harbour and immunity and stands liable for legal action.