New Delhi, Mar 21: The Supreme Court has intervened by staying the notification issued by the Central government to establish Fact Check Units (FCUs) under the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules (IT Amendment Rules 2023), following a petition by stand-up comedian Kunal Kamra, the Editors Guild of India and others.
The IT Amendment Rules of 2023 empower the Ministry of Electronics and Information Technology to establish FCUs, tasked with identifying and tagging what they deem to be false or fake online news related to any activities of the Central government. The Press Information Bureau’s FCU, operating under the Union Information and Broadcasting Ministry, was recently notified.
A bench led by Chief Justice of India (CJI) DY Chandrachud expressed concerns about the constitutional implications and potential impact on free speech and expression, deciding that the matter requires a thorough examination by the Bombay High Court. Consequently, the Court stayed the notification setting up FCUs.
Senior Advocate Darius Khambata, representing Kunal Kamra, argued that despite the safe harbour provisions under Section 79 of the Information Technology Act protecting intermediaries, they might opt to remove flagged content rather than risk legal repercussions. He emphasised the chilling effect on free speech, questioning why intermediaries had not challenged these rules and highlighting the inherent bias in the system.
Khambata contended that the rules unfairly prioritize protecting the Central government’s interests and overlook the diverse perspectives inherent in a marketplace of ideas. He criticized the timing of FCU notification, particularly during election periods, and warned of its potential to suppress dissenting voices.
Shadan Farasat, representing the Editors Guild of India, echoed concerns about governmental oversight of truth, asserting that it undermines the essence of freedom of speech and expression. He cautioned against the FCU’s ability to monopolize the narrative, especially during sensitive periods like elections, hindering investigative journalism and perpetuating governmental control over information dissemination.