Bombay HC refuses to stay on Centre setting up fact-checking unit to identify fake news

Mumbai: The Bombay High Court has refused to grant interim stay on setting up a fact-checking unit (FCU) under the recently amended Information Technology Rules to identify fake and false content on social media concerning the business of the Union government.

In an order issued by the single bench of Justice A S Chandurkar, the court 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 petitions against the IT Rules.

"In my opinion, no case is made out to direct the respondent (Centre) to continue its statement that the fact-checking unit would not be notified pending proceedings on the petitions," Justice Chandurkar said.

The order was passed on a bunch of applications filed by standup comedian Kunal Kamra and others seeking a stay on the notification of the FCU pending the final disposal of their pleas 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 the same and dismissed the petitions.

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

The division bench had also differed on whether a stay should be granted on setting up the FCU pending a hearing on the pleas by the third judge.

Justice Patel had said the FCU should not be notified, and Justice Gokhale opined otherwise.

Justice Chandurkar on Monday said the interim applications would now be placed before the referral division bench of Justices Patel and Gokhale for orders on the same.

With Justice Chandurkar's opinion, the Centre would get clearance to notify the FCU under the IT Rules.

Last year, the Centre gave an oral assurance to the court that it would not notify the FCU under the IT Rules until the final verdict was delivered on the issue.

However, after the division bench's split verdict, Solicitor General Tushar Mehta submitted to the court that the oral assurance could be extended only until the third judge took up the matter for consideration.

The petitioners then filed interim applications seeking a stay on notification of the FCU.

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 off the same to social media intermediaries.

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

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