Bombay HC Bench Defers On Striking Down Certain Provisions Of The IT Amendment Act, 2023

(JANUARY 31, 2024) A bench of Justices Gautam Patel and Neela Gokhale delivered a split verdict in the case of Kunal Kamra v. UOI, which challenged the constitutional validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, as amended by Rules 3 (i) (II) (A) and (C) of the IT Amendment Rules, 2023. This amendment permits the Central Government to establish Fact Checking Units (‘FCU’) to identify fake, false or misleading information on social media platforms. The judgment, currently under review by a larger bench of the Bombay HC, will have a significant impact on social media intermediaries and their ‘safe harbour’ immunity under Section 79 of the IT Act. This is particularly pertinent in instances where social media platforms fail to comply with government orders to remove or block specific content flagged as misleading or fake by the FCU. Furthermore, such intermediaries will need to update their rules, regulations, privacy policies and user agreements to incorporate provisions for content removal and/or disabling user accounts.