Supreme Court stays Centre’s Notification of “Fact Check Unit” under IT Rules Till Decision by Bombay High Court

Introduction

In a recent judgment of the Hon’ble Supreme Court pronounced by a 3 – judge bench consisting of Hon’ble Justice Dy Chandrachud, Justice JB Pardiwala and Justice Manoj Misra have stayed the Union Government’s notification of the Fact Check Unit (FCU) which was created under the Information Technology Amendment Rules, 2023 and has laid down that such stay would be effective till the Hon’ble Bombay High Court completely adjudicates upon the challenges to the IT Amendment Rules, 2023.

The Ministry of Electronics and Information Technology (MEITY), on 20^th March, 2024 issued a notification in reference to the fact check unit and stated that such unit would function under the Press Information Bureau (PIB) and shall also act as a monitoring agency for Central Government’s news and allied business. Moreover, information which pertains to the business and functions of the Central Government which has been posted on social media and has been identified as fake by the Fact Checker Unit is mandatorily required to be struck down by the intermediaries operating in the social media sector and failure to do so would result in the loss of “safe harbour immunity” on their part which would later expose them to an array of legal proceedings.

In the present – day legal system wherein social media intermediaries play an important role in the dissemination of information through their portals, an impartial and unbiased system of information scrutiny assumes a pivotal role in governing the social media regulations and ensuring the credibility of the information that reaches the public at large. Additionally, the Supreme Court has also instructed the telecom operators to immediately and effectively strike down any information which is false and may lead to the spread of misinformation to the general public at large along with directing strengthening of compliance mechanisms for social media players such as Facebook, Instagram, Twitter and others.

According to the 3 – judge bench of the Hon’ble Supreme Court consisting of the Chief Justice of India, it was noted that any challenge posed to Rule 3(1)(b)(v) of the Rules poses a huge challenge to the freedom of speech and expression in the country and it would be the responsibility of the Bombay High Court to consider the merits of the case and analyse the severity of the impact posed by the Rule upon the fundamental rights of the citizens.

According to the petitioners i.e., the Editors Guild of India and the Association of Magazines, it was argued in support of the stay order that the government should not be the only judge and arbiter in its own decisions and since the general elections are lined up in the country, there is a pressing need to promote the freedoms of press in the economy at large.

Moreover, posing a question on the timing of the issuance of notification by the Central Government, it was also argued on behalf of the petitioners that establishment of a Fact Check Unit is in itself an ironical step on behalf of the government since it would have a chilling impact on the freedom of media houses who shall be coerced to take down information not in consonance with the government’s policies due to the fear of losing their safe harbour immunity which would amount to pseudo – censorship of media houses.

However, it was argued on behalf of the government that the pressing need to create such a unit arose due to the inadequacy of the statutory mandates for combating the dissemination of viral, fake and false content. The role of the intermediaries in the framework is limited to merely displaying a disclaimer for the false content rather than completely striking it down or taking punitive actions. Additionally, such steps have been taken only for the interest of the public at large and the objective of such unit is to merely keep a check on the dissemination of fake news in the country and protect individuals from making their decisions based on untrue facts.

Conclusion

In the present case, the Hon’ble Supreme Court has rightly stayed the Central Government’s notification pertaining to the Fact Check Unit based upon the decision which the Hon’ble Bombay High Court is yet to announce since any decisive step may lead to an interference in the adjudication by the latter and derail the entire judicial process which every petition ought to follow.

Secondly, the Supreme Court inherently has the jurisdiction to adjudicate upon any matter pertaining to the infringement of fundamental rights of the citizens or deciding upon validity of any statute, notification or other steps taken by the government and therefore can also hear the same matter in case of any appeal arising out of this present judgment by the Hon’ble High Court.

In the context of intermediaries and safe harbour protection which has assumed a pivotal role in the present case, the Supreme Court has rightly remarked in the landmark judgment of Shreya Singhal V. Union of India that any action of the Government which takes away the safe harbour protection of the intermediaries must conform to the subject matters which have been laid down under Article 19(2) of the Constitution of India or Section 69A of the Information Technology Act, 2000.

Lastly, the orders passed by the Hon’ble Supreme Court of India have also provided a guiding light to the various other High Courts including the Bombay High Court for adjudication of the dispute and passing appropriate orders to balance the scales of fundamental rights and legislative powers.

King Stubb & Kasiva,
Advocates & Attorneys

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