The Union government told the Bombay High Court on Thursday that it will not notify till July 5, 2023 a fact checking unit to identify fake news against the government on social media under the recently amended Information Technology Rules. A division bench of Justices Gautam Patel and Neela Gokhale accepted the statement and said since the amended rules would be inoperable in the absence of a fact checking unit, no urgent hearing was required on stay of the rules as sought by stand-up comic Kunal Kamra. The bench posted the petition filed by Kamra, challenging the constitutional validity of the rules, for hearing on June 8.
Additional Solicitor General Anil Singh, appearing for the Union government, told the HC that the fact checking unit would not be notified till July 5, 2023 so that the court could hear the matter in June when it reopens after the summer vacation. Kamra's counsel Darius Khambata insisted the court hear the matter for interim relief on Thursday itself and argued that the rules would continue to have a chilling effect irrespective of whether the fact checking unit was notified or not. The bench, however, said the rules would not be operable till the unit was set up or notified. “The rules, as it currently stands, are sterile or inoperable without this fact checking unit or committee. Whether once the unit is notified it would have a retrospective effect or not is something that needs to be seen at that stage,” the high court said.
Justice Patel in a lighter vein said if it is Kamra's contention that he is going to be putting up some remark or comments or satire and may face action later then he should probably “take a holiday”. “Take the summer off. If somebody chooses to be chilled then that is up to them,” Justice Patel quipped. The bench also permitted Kamra to amend his petition to challenge the competence of the executive on the issue. On April 6, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision of a fact check unit to identify fake or false or misleading online content related to the government.
Kamra, in his petition, claimed the new rules could potentially lead to his content being arbitrarily blocked or his social media accounts being suspended or deactivated, thus harming him professionally. He has sought that the court declare the amended rules as unconstitutional and give a direction to the government to restrain from acting against any individual under the rules. The Union government in its affidavit filed in court last week reiterated that the "role of the fact check unit is restricted to any business of the central government, which may include information about policies, programmes, notifications, rules, regulations, implementation thereof, etc".
"The fact check unit may only identify fake or false or misleading information and not any opinion, satire or artistic impression. Therefore, the aim of the government regarding the introduction of the impugned provision is explicitly clear and suffers from no purported arbitrariness or unreasonableness as alleged by the petitioner (Kamra)," the Centre's affidavit had said. As per the amendments, intermediaries such as social media companies will have to act against content identified by the fact check unit or risk losing their safe harbour protections under Section 79 of the IT Act. "Safe harbour" protections allow intermediaries to avoid liabilities for what third parties post on their websites.
