SC stays notification on launch of government fact checking unit

In a significant development, the Supreme Court stayed on Thursday, March 21, an official notification on the launch of a fact checking unit (FCU) to identify fake news about the Central government, saying the issue involved a “serious Constitutional question and the impact…on free speech and expression”.

The electronics and IT ministry notified the FCU under the Press Information Bureau (PIB) in line with the Information Technology Rules, 2021 to identify fake news about the Union government.

Setting aside HC order

An apex court bench headed by Chief Justice DY Chandrachud set aside a March 11 Bombay high court order refusing to grant interim stay on setting up the FCU under the amended IT Rules to identify fake and false content on social media about the government.

"We are of the considered view that questions before the HC deal with core questions on Article 19(1)(a) of the Constitution," said the bench that also included justices JB Pardiwala and Manoj Mishra.

Serious issues

"We are of the view that notification dated March 20, after rejection of application of interim relief, needs to be stayed.

“The challenge to the validity of 3(1)(b)(5) 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 judges said.

The stay will operate till the high court finally decides the challenges to the IT Rules amendment 2023. The notification came days after the high court declined to restrain the Centre from notifying the unit.

Petitioners argument

The Supreme Court was responding to Special Leave Petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines challenging the refusal of the Bombay high court to stay the implementation of the IT Rules 2023.

The Supreme Court, without expressing the merits of the pending challenge on the Rules before the Bombay high court, felt that there exist prima facie grounds for staying the notification of March 20.

FCU’s task

Under the notification, any information posted in social media in relation to the business of the Union government, flagged as fake or false by the FCU, has to be taken down by the social media intermediaries.

If they fail, they will lose the 'safe harbour' immunity against legal proceedings arising out of such information posted.

Appearing for Kamra, senior advocate Darius Khambata submitted that the absence of any independent FCU for everybody except the Central government was arbitrary.

Gagging public?

With the Lok Sabha elections around the corner, the FCU could become a tool for the Union government to control what information goes out to the voters, he argued.

He also pointed out that the users or consumers of such social media intermediaries do not have any remedy to challenge such a takedown of content by the PIB.

Government view

Solicitor General Tushar Mehta submitted that the FCU would only flag fake news regarding government business to the intermediaries.

"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."