Supreme Court stays Centre’s notification on fact-checking unit, says challenge involves free speech

Staying the operation of the March 20 notification on FCU by the Ministry of Electronics and Information Technology (MeitY), the bench noted that the Centre had assured the High Court on April 27, 2023 that the FCU would not be notified until petitions challenging Rule 3 (1) (b) (v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 are decided by the High Court.

The FCU has been a contentious issue with concerns about the government’s fairness to act as an arbiter in matters where it may have a conflict of interest. There are worries about its potential impact on press freedom, especially when reports critical of the government are published. With social media platforms becoming an important tool for media companies to disseminate content, flagging of a report as fake by the FCU can prompt the government to direct a platform to remove the links to that report.

The bench said it was not making any comment on merits as the matter was pending before the High Court.

“We are of the considered view that the challenge which is pending before HC implicates core values impinging on freedom of speech, which is protected by Article 19. Since all the issues await the adjudication of the HC, we are desisting from expressing any opinion on merits which may ultimately have the impact of foreclosing a full and fair consideration by the third judge of the High Court,” it said.

“However, we are clearly of the view that the notification dated March 20, 2024, which has been issued by the Union Government after the rejection of the application for interim relief, would need to be stayed,” it said.

The bench said “the challenges to Rule 3 (1) (b) (v) involves serious Constitutional questions. The impact of the Rule on the fundamental right to freedom of speech and expression would call for analysis by the HC”.

“We accordingly set aside the opinion of the third judge declining interim relief (of stay) dated March 11, 2024 and direct that pending the disposal of the proceeding before the HC, the notification of the… Ministry of Electronics and Information Technology dated March 20, 2024 shall remain stayed,” the bench ruled, hearing petitions filed by the Editors Guild of India (EGI) and stand-up comedian Kunal Kamra.

Appearing for Kamra, Senior Advocate Darius Khambata said social media intermediaries will be forced to take down content flagged by the FCU as fake. “The rules make the Central government the arbiter of truth regarding facts relating to itself,” he said.

“It is a question of Caesar judging Caesar. (The) Centre is not a separate class… Why is the FCU only for the Central government? Why isn’t there some independent body for everybody?… If the objective is to prevent fake news, then everybody is affected by fake news. It affects individuals more than the government,” he said.

Khambata said with elections approaching, “this is the time when the public should have access to all information relating to the Central government and not just filtered facts”.

He contended that “this will have a deep chilling effect on free speech”.

Appearing for the Centre, Solicitor General Tushar Mehta cited instances of fake posts on social media and said the Rules only require the intermediary to put a disclaimer that the information is false as per FCU.

He said it is “only restricted to 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”.

“We are only alerting it is fake,” Mehta said, “Can the government be prevented from doing that?” he asked.

On March 11, the Bombay High Court had rejected applications seeking an interim stay on notifying the FCU until the court decides on multiple petitions challenging the validity of the amended rules.

The petitioners, including Kamra, Editors Guild of India, News Broadcasters and Digital Association and Association of Indian Magazines, have challenged the rules calling them arbitrary, unconstitutional, and in violation of fundamental rights.

A split verdict was delivered by the division bench of Justices Gautam Patel and Neela Gokhale in January this year. Agreeing with the petitioners,, Justice Patel struck down the amendment. Justice Gokhale, on the other hand, upheld the government position. It was then referred to a third judge, Justice A S Chandurkar.

In April last year, the MeitY promulgated the 2023 Rules, which further amended the Information Technology Rules, 2021.

Under the new Rules, if the FCU comes across or is informed about any post that is “fake”, “false” or contains “misleading” facts pertaining to the business of the government, it would flag it to the social media intermediaries.

The online intermediaries would then have to take down such content if they wanted to retain their “safe harbour” (legal immunity against third-party content).