The story so far: The Bombay High Court on September 29 reserved its verdict in a batch of petitions challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules). The Rules permit a fact check unit of the Union Government to identify “fake or false or misleading” online content “related to the business of the Central Government” and demand its removal.
In April this year, the Ministry of Electronics and IT (MEiTY) promulgated the 2023 Rules, which amended the Information Technology Rules, 2021, and allowed the ministry to appoint such a fact-checking unit. Subsequently, Kunal Kamra, a political satirist and standup artist, the Editors Guild of India, and the Association of Indian Magazines filed writ petitions before the Bombay High Court challenging Rule 3(1)(b)(v) of the IT Rules that permit the constitution of such a Fact-Check Unit (FCU).
The petitioners contend that the provision would enable government-led censorship online and empower the government to be the “prosecutor, the judge, and in that loose sense, the executioner” of what constitutes the ‘truth’ online. Defending this provision, the government has argued that the FCU will only notify intermediaries or online platforms that the content they are hosting is fake, false, or misleading, and the intermediaries can choose to take it down or leave it up with a disclaimer. Highlighting that the FCU’s notice is merely advisory, the government submitted that in case a user is aggrieved by the intermediary’s decision, they can avail of a remedy before a court of law, which will be the final arbiter on the matter.
