Third Bombay HC judge to decide on stay on formation of Fact Checking Unit to identify fake news against govt

Mumbai: The Bombay High Court on Thursday said a third judge will decide on the issue of stay on formation of a Fact Checking Unit under the recently amended Information Technology Rules to identify fake and false content on social media concerning business of the Union government.

Solicitor General Tushar Mehta said his earlier statement that the government would not notify the FCU would continue till the third judge takes up the matter for consideration on interim relief.

On January 31, a division bench of Justices Gautam Patel and Neela Gokhale gave a split verdict on a bunch of petitions challenging the Information Technology Rules.

While Justice Patel said the Rules amount to censorship, Justice Gokhale said the Rules do not have any chilling effect on free speech. The court had then said the issue would be referred to a third judge for his opinion after which judgment would be pronounced.

Solicitor General Mehta, at the time, said his earlier statement that the government would not notify the FCU under the Rules can be continued only for ten more days.

The petitioners - stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines then filed interim applications seeking continuance of the earlier assurance by the government till the third judge renders his opinion.

On Thursday, the bench of Justices Patel and Gokhale said they had divergent views on the main issue of constitutional validity of the Rules and also on whether the interim stay needs to continue.

"Hence, the interim applications seeking continuance of the earlier statement on stay on formation of the FCU needs to be decided by the third judge," the bench said.

The court accepted Mehta's statement and noted that an order has been passed by the Chief Justice of HC on Wednesday referring the issue to a third judge.

The petitioners had said that the Rules were arbitrary and unconstitutional.

While Justice Patel struck down the impugned Rules terming it as unconstitutional, Justice Gokhale upheld the same and dismissed the petitions.

Justice Patel in his 148 page judgment struck down the amendment noting it was not just too close to but actually takes the form of censorship of user content.

Justice Gokhale, in her 92-page judgment, however, held the impugned Rules do not bring any chilling effect on the right of the user.

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 a Fact Checking Unit to flag fake, false or misleading online content related to the government.

Under the Rules, if the FCU comes across or is informed about posts pertaining to the business of the government that are fake, false, and misleading then it would flag off the same to the social media intermediaries.

Once 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.