SC issues notice to Kunal Kamra, Editors Guild on Centre’s petition against Bombay HC order striking down IT rules on fake content

Terming it an issue of “paramount importance”, the Supreme Court on Tuesday issued notice on the Centre’s petition challenging a Bombay High Court verdict that struck down Rule 3 of the Information Technology (Amendment) Rules, 2023, which empowered the government to establish Fact Check Units (FCUs) to regulate ‘fake news’.

Asking comedian Kunal Kamra, Editors Guild of India, News Broadcasters and Digital Association, Association of Indian Magazines and others to respond to the Centre’s petition in four weeks, a Bench led by Chief Justice of India Surya Kant said it would lay down the law on the issue.

The Bench, however, turned down Solicitor General Tushar Mehta’s request to stay the High Court’s order that declared the FCUs unconditional.

“The way some of these platforms are acting. See some of the laid-out examples... How dangerous are these? I am not any individual but such news can damage the reputation of the institution as well. Clear demarcated guidelines are needed,” the CJI said, adding even the Army and Police were not spared from fake news.

The top court, however, said it was not an issue with print media much.

As per the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules Amendment), social media intermediaries will lose the ‘safe harbour’ protection if they fail to take down the content flagged as ‘fake’ by FCUs.

In a setback to the Centre, the Bombay High Court had in September 2024 struck down the amended information technology (IT) rules under which it wanted to set up a fact-checking unit (FCU) to identify fake and false content on social media.

Terming the IT Amendment Rules, 2023 — which amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 —“vague and unconstitutional”, the high court said the provision could have a “chilling effect” on individuals and social media intermediaries.

“The expression ‘fake or false or misleading’ in the absence of it being defined is vague and overbroad and hence liable to be struck down,” it said. The amended rules violated several constitutional provisions, including Article 14 (right to equality), Article 19 (freedom of speech and expression) and Article 19(1)(g) (freedom to practise any profession), the HC said.

The high court declared unconstitutional Rule 3(1)(b)(5) — dealing with the establishment of the FCU, which was supposed to flag misleading or false online content concerning the government.

“If it was found that the impugned (challenged) rule was also vague and broad without any guiding principle to indicate the areas it sought to encompass, the possibility of such a chilling effect being felt would be an additional ground to hold it invalid,” the HC said. It said Rule 3(1)(b)(5) sought to restrict the fundamental right guaranteed under Article 19(1)(a) by seeking to place restrictions that were not in consonance with Article 19(2) of the Constitution.

While Article 19(1)(a) grants the freedom of speech and expression, Article 19(2) allows the government or the legislature to impose “reasonable restrictions” on various grounds on this freedom.

“Under the right to freedom of speech and expression, there is no further ‘right to the truth’, nor is it the responsibility of the state to ensure that the citizens are entitled only to ‘information’ that is not fake or false or misleading as identified by the FCU,” the HC said, adding, “The same is impermissible through the mode of delegated legislation.”