Supreme Court Halts Government’s Fact-Checking Units Amid Free Speech Concerns

New Delhi, March 21, 2024: The Supreme Court has intervened by staying the notification issued by the Central government to establish Fact Check Units (FCUs) under the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules (IT Amendment Rules 2023), following a petition by stand-up comedian Kunal Kamra, the Editors Guild of India and others.

The IT Amendment Rules of 2023 empower the Ministry of Electronics and Information Technology to establish FCUs, tasked with identifying and tagging what they deem to be false or fake online news related to any activities of the Central government. The Press Information Bureau's FCU, operating under the Union Information and Broadcasting Ministry, was recently notified.

A bench led by Chief Justice of India (CJI) DY Chandrachud expressed concerns about the constitutional implications and potential impact on free speech and expression, deciding that the matter requires a thorough examination by the Bombay High Court. Consequently, the Court stayed the notification setting up FCUs.

Senior Advocate Darius Khambata, representing Kunal Kamra, argued that despite the safe harbour provisions under Section 79 of the Information Technology Act protecting intermediaries, they might opt to remove flagged content rather than risk legal repercussions. He emphasized the chilling effect on free speech, questioning why intermediaries had not challenged these rules and highlighting the inherent bias in the system.

Khambata contended that the rules unfairly prioritize protecting the Central government's interests and overlook the diverse perspectives inherent in a marketplace of ideas. He criticized the timing of FCU notification, particularly during election periods, and warned of its potential to suppress dissenting voices.

Shadan Farasat, representing the Editors Guild of India, echoed concerns about governmental oversight of truth, asserting that it undermines the essence of freedom of speech and expression. He cautioned against the FCU's ability to monopolize the narrative, especially during sensitive periods like elections, hindering investigative journalism and perpetuating governmental control over information dissemination.

Solicitor General Tushar Mehta defended the government's stance, citing the challenge of combating misinformation in an uncontrollable digital landscape. He clarified that intermediaries are only required to display disclaimers for flagged content and are not obligated to remove it, except for government-related matters.

The Court noted the serious constitutional questions raised by the challenge to the IT Amendment Rules and the impending hearing before the Bombay High Court. Given the potential ramifications for free speech, it deemed necessary to halt FCU implementation until further legal scrutiny.

The IT Amendment Rules 2023, particularly Rule 3, are already subject to legal challenge before the High Court, with a tie-breaker judge yet to render a decision. Despite earlier rejections for a stay, the Supreme Court's intervention underscores the gravity of the issue and the need for comprehensive judicial review.