IT rules on fake news: Bombay High Court split

A division bench of the Bombay High Court on Wednesday, 31 January, delivered a split verdict on a bunch of petitions challenging the amended Information Technology (IT) Rules dealing with fake news on the government posted on social media.

Stand-up comedian Kunal Kamra, the Editors' Guild of India and the Association of Indian Magazines had filed petitions against the new Rules, terming them arbitrary and unconstitutional, and claimed that they would have a chilling effect on the fundamental rights of citizens.

While Justice Gautam Patel agreed with the petitioners' contentions, Justice Neela Gokhale upheld the government's side.

"There is a disagreement between us. I have held for the petitions and Justice Gokhale has held for the government. So now the matter will be heard afresh by a third judge," Justice Patel said in the courtroom.

The matter will be placed before the chief justice of the high court, who will assign it to a third judge.

Solicitor General Tushar Mehta agreed to extend for 10 days an earlier assurance given to the court that until the judgement was delivered, the government would not notify the Fact Checking Unit (FCU) to be set up under the amended IT Rules. The FCU is to be tasked with identifying and flagging fake, false and misleading facts on social media.

The bench accepted this statement.

On 6 April 2023, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

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

Once such a post is flagged, 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.

The Centre, however, said it was not against any kind of opinion, criticism, satire or humour targeting the government, and the Rules were meant to only proscribe or prohibit peddling of fake, false and misleading facts on social media.