The Bombay High Court quashed the amended Information Technology rules aimed at identifying through a Fact Checking Unit (FCU) “fake and false” content against the government on social media platforms, holding it as unconstitutional. 

What is the case about?

• Stand-up comedian Kunal Kamra, Editors Guild of India, News Broadcast and Digital Association, and Association of Indian Magazines had filed petitions before the Bombay High Court challenging the new regulations.

• These rules allow a Fact Checking Unit (FCU) of the Union government to identify and demand the removal of online content deemed “fake, false, or misleading” in relation to the business of the Central Government.

• The ruling was passed by Justice A.S. Chandurkar who served as ‘tie-breaker judge’ after a division bench in January 2024 delivered a split verdict. Justice Chandurkar’s opinion will now be formally placed before a division bench for a final verdict.

Key points of the HC verdict:

• Observing that the amended rules infringed the right to equality and freedom of speech, the court also said the rules being vague and broad could cause a “chilling effect” not only on an individual but also social media intermediaries.

• The amended rules provided for the establishment of FCU with powers to flag misleading or false online content concerning the government.

• Among others, the rules violated Article 14 (right to equality), Article 19 (freedom of speech and expression) and Article 19(1)(g) (freedom to practice any profession) of the Constitution, the third judge held. 

• Rule 3(1)(b)(5) — the controversial provision dealing with the establishment of an FCU —was ultra vires of the Constitution. 

• The single judge in his judgment said rule 3(1)(b)(5) sought to restrict the fundamental right guaranteed under Article 19(1)(a) by seeking to place restrictions that are not in consonance with Article 19(2) of the Constitution.

• The judge further said there was no rationale for undertaking the exercise of determining whether any information in relation to the business of the Centre is either fake or false or misleading when in digital form, but not doing the same when such information is in the print form.

PIB’s Fact Check Unit

• The Fact Check Unit under PIB was established in November 2019 with a stated objective of acting as a deterrent to creators and disseminators of fake news and misinformation. 

• It also provides people with an easy avenue to report suspicious and questionable information pertaining to the government of India.

• The FCU is mandated to counter misinformation on government policies, initiatives and schemes either suo motu or under a reference via complaints.

• The FCU actively monitors, detects, and counters disinformation campaigns, ensuring that false information about the government is promptly exposed and corrected.

What is the government’s stand?

• Right to Correct Information: The Union government argues that the right to know factually correct information and the right not to be misled are equally important as the right to freedom of speech and expression under Article 19(1)(a) of the Constitution.

• Least Restrictive Means: Solicitor-General Tushar Mehta stated that the FCU represents the least restrictive method to counteract fake, false, and misleading information.

• Role of the FCU: The FCU’s role is to identify and highlight instances of falsehood or misinformation related to the central government's business. It is not to adjudicate but to provide accurate information to the public.

• Comparative Justification: The government compares its FCU to similar units maintained by private companies and individuals, arguing that it is justified in fact-checking to prevent misinformation and ensure the dissemination of accurate information.

• Prevention of Misinformation: Mehta highlighted the need for fact-checking, citing multiple examples of fake news and misinformation on social media. He argued that without government fact-checking, it would be a dereliction of duty.

• No Chilling Effect: The government refutes the petitioners’ argument that the FCU would create a “chilling effect” on free speech. Mehta asserted that intermediaries can be summoned to court for adjudication, and the ultimate arbiter would be a court of law.

• Judicial Oversight: The government emphasized that it is not the final arbiter of truth. The first arbiter is the intermediary, and the final arbiter is a court of competent jurisdiction.

• Article 21: Mehta argued that the right to be informed correctly is inherent in Article 21 of the Constitution, as misinformation that incites violence or threatens public order directly infringes on this right.

(The author is a trainer for Civil Services aspirants.)