Supreme Court Puts Govt Fact-Checking Unit Notified Under IT Rules on Hold

The FCU has been stayed until the Bombay High Court takes a final decision on the validity of the IT Rules, 2023.

The Supreme Court on Thursday, 21 March, stayed Centre's notification of PIB Fact-Check Unit, a day after it was issued by the Ministry of Electronics and Information Technology.

(Photo: Altered by The Quint)

The Supreme Court on Thursday, 21 March, stayed the Centre's notification that set up a fact-check unit under the Press Information Bureau (PIB) ahead of the Lok Sabha elections.

The temporary stay has been granted by the apex court until the Bombay High Court delivers its final ruling on a batch of petitions that have challenged the constitutional validity of the underpinning Information Technology (IT) Amendment Rules, 2023.

The interim order was delivered by a three-judge bench led by Chief Justice of India DY Chandrachud.

The Supreme Court's intervention comes just a day after the Union Ministry of Electronics and Information Technology (MeitY) published a Gazette notification establishing a fact-check unit that would be allowed to identify and flag online content relating to "any business of the central government" as fake.

"We are of the considered view that the challenge pending before HC implicates four values protected by Article 19," the Supreme Court said.

Earlier, on 13 March, the Bombay High Court had rejected pleas for interim relief filed by the petitioners, namely standup comedian Kunal Kamra, the Editors Guild of India (EGI), and Association of Indian Magazines (AIM), who later moved the Supreme Court.

"We set aside the opinion of the third learned judge declining interim relief and direct that the pending the final disposal by the High Court, the notification dated March 20 by Meity shall remain stayed," the SC bench said.

"Since all the issues await the adjudication by HC, we are desisting from expressing any opinion on merits which may have impact of foreclosing," it added.

What Do the IT Amendment Rules, 2023, Say?

In April 2023, the legal requirements for online intermediaries (including social media platforms like WhatsApp and X) under Rule 3(1)(b)(v) of the existing IT Rules, 2021, was amended by notifying the IT Amendment Rules, 2023.

This Amendment allows the central government to set up a Fact-Check Unit that would be empowered to identify information related to "any business" of the central government as "fake”, “false”, or “misleading”.

It further requires intermediaries to “make reasonable efforts to” so that their users don't post such information.

However, terms such as “business” of the central government and “fake, false, or misleading” information is undefined throughout the IT Rules. The Amendment also does not specify what "reasonable efforts" should be undertaken by the intermediaries.

Soon after it was notified, legal experts pointed out that the Amendment would effectively let the government-notified Fact-Check Unit to request the takedown of social media content that the Unit declares as "fake”, “false”, or “misleading”.

Furthermore, platforms like WhatsApp as well as telcos such as Airtel would have to act on the content flagged by the FCU within 72 hours.

And if the platforms don't comply? Well, intermediaries that are not in compliance with provisions of the IT Rules could risk losing safe harbour protections – meaning that these platforms would become liable for the content posted by users.

Besides the fact-checking provisions, a major portion of the IT Amendment Rules, 2023, seeks to regulate the online gaming companies by requiring them to undertake KYC verification of users, establish self-regulatory bodies, etc.

What Happened in the Courtroom? Key Arguments

While, the petitioners argued that the government should have continued with its position to not notify the FCU till a final verdict, the government's counsel emphasised the menace of fake news, according to LiveLaw.

Intermediary liability: "Safe harbour immunity is very crucial for intermediaries and any rule diluting it needs to be taken seriously," said advocate Gautam Bhatia. "Otherwise unconstitutional law will not become constitutional on a promise of fair implementation," he added.

Senior advocate Darius Khambhata pointed out how the legislation compels intermediaries to take down content flagged as false or fake by the PIB Fact-Check Unit. "The impetus of all intermediaries will be to take down. They are commercial entities, why would they want to expose themselves to legal liabilities. So adding disclaimer will not save them," he said.

• However, Solicitor General of India Tushar Mehta cited Section 69A of the IT Act and argued that issuing directions to block content was the maximum that the government could do. "I am just showing the least restrictive measures we have adopted. Intermediaries like FB, Twitter, Instagram argue that they are only providing a platform. Like a notice board in a village. So they argue they can't be held responsible," he said.

• "Safe harbour protection is given to intermediaries statutorily by Section 79 of the IT Act," SG Mehta added.

"Elections are coming. This is the time when public should have access to all information relating to central government and not just filtered facts," the petitioners argued before the Supreme Court, as per LiveLaw.

Lok Sabha Elections: " In an electoral cycle, two versions exists 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," said advocate Shadan Farasat appearing on behalf of EGI.

• "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 Mehta argued.

Status quo: "The third judge differed on interim relief. It was strange. Normally, when a matter goes to third judge after a split, the status quo which was continuing is maintained," senior advocate Khambhata said.

Referring to the Bombay High Court's split verdict, he said, "When judges differ, there is no judgment, it is only opinion. SG made a statement that the undertaking to not notify FCU will continue till the judgment,"

Arguing that the centre's position had stayed the same for past 9-10 months, senior advocate Khambhata asked, "Why the haste (in notifying the FCU)? The third judge is hearing from April 15. We can wait for judgment."

"The PIB (Press Information Bureau) was supposed to put out correct information about the government. They can now issue directions to intermediaries to take content down – ultimate irony," the petitioners argued.

Press Information Bureau: "PIB is the entity which gives the Govt's version. Now the Govt's version becomes the only version. Becasue all other versions will not be in circulation," Farasat added.

• However, SG Mehta contended that content will be flagged as fake or false as per the government's records. "As per SEBI regulations, companies have to establish a fact check...every major company has their fact check unit. Every major channels have their fact check units," he added.

A Brief Timeline of the Case

April 2023: The Union Ministry of Electronics and Information notifies the 'fact-check' amendments to the IT Rules with some tweaks.

• That same month, standup comedian Kunal Kamra filed a petition before the Bombay High Court that challenged the constitutional validity of the 'fact-checking' provisions of the IT Amendment Rules, 2023.

• In response, the IT Ministry tells the High Court that it will not notify its Fact-Check Unit until 5 July 2023.

June 2023: The Editors Guild of India (EGI) and the Association of Indian Magazines (AIM) also file writ petitions before the Bombay High Court that challenge the constitutional validity of the IT Amendment Rules, 2023.

September 2023: The Bombay High Court reserves its verdict in the case after hearing closing arguments from both sides. The IT Ministry further submits to the court that it won't notify the Fact-Check Unit until the verdict is out.

December 2023: The High Court defers its verdict on the legal challenges to the IT Amendment Rules, 2023, until 15 January 2024.

January 2024: The two judge-bench of the Bombay High Court delivers a split verdict, with Justice Gautam Patel striking down the fact-checking provision and Justice Neela Gokhale upholding it. As a result, the matter is referred to a third judge for a final, majority verdict.

March 2024: The petitioners in the case suffer a setback after the Bombay High Court refuses to pre-emptorily stay the formation of the FCU, following which the petitioners move the Supreme Court in an appeal.

• Seven days later, the IT Ministry notifies the FCU without providing any details on its composition or its functioning.

• On 21 March, the Supreme Court rules in favour of the petitioners and grants an interim stay on the formation of the FCU.