Bombay High Court strikes down IT Rules Amendment 2023 on fact check units

The Bombay High Court on Friday struck down the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, specifically Rule 3, which empowers the Central government to form Fact-Check Units (FCUs) for identifying false or fake news against the government on social media and online platforms [Kunal Kamra v. Union of India & Ors and connected petitions].Tie-breaker judge Justice AS Chandurkar delivered his opinion today after the matter was referred to him following a split verdict in the matter by a Division Bench in January this year. "I am of the opinion that it violates Articles 14 and Article 19 of the Constitution," the single-judge said while reading out the verdict..The IT Amendment Rules, 2023 amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).The petitions, including one filed by stand-up comedian Kunal Kamra, had specifically challenged Rule 3, which grants the Centre the authority to form FCUs for identifying false online news..The petitioners argued that the amendments were ultra vires Section 79 of the Information Technology Act and violated Article 14 (right to equality) and Article 19(1)(a)(g) (freedom to practise any profession, or to carry on any occupation, trade or business) of the Constitution..On January 31, Justices GS Patel and Neela Gokhale delivered a split verdict on the matter. Justice Patel ruled in favour of the petitioners and struck down Rule 3, citing concerns about the potential for censorship of user content and the shifting of responsibility for content accuracy from creators to intermediaries. He emphasised the need for clear guidelines and criticised the imbalance in addressing grievances related to government information versus other sensitive issues..Justice Patel highlighted issues related to Article 14, asserting that there was no justification for granting "high value" speech recognition to information concerning the central government over other entities. In contrast, Justice Gokhale upheld the validity of the amended rules, arguing that they target misinformation with malicious intent while protecting freedom of speech. She stated that a rule cannot be invalidated based solely on concerns of potential abuse, affirming that petitioners and users can approach the court if any intermediary actions infringe upon their fundamental rights..Following this, High Court Chief Justice DK Upadhyay appointed Justice Chandurkar to provide a tie-breaking opinion on the case.The petitioners represented by Senior Advocates Navroz Seervai and Arvind Datar contended that the FCUs are intended to impose total state censorship on discussions which the government wishes to suppress. They also pointed out the lack of provisions for the FCUs to fulfil their stated purpose of keeping citizens informed..The Central government argued that the FCUs do not seek to curb criticism or satire but are focused solely on government-related content. Solicitor General Tushar Mehta emphasized that the impugned rule applies only to information found in official government files.In response to claims that Rule 3 could chill free speech, Mehta maintained that any chilling effect should only pertain to fake and false news, asserting that everyone should be cautious about disseminating misleading information. He argued that the government would not be the final arbiter; instead, intermediaries would initially evaluate content, with courts serving as the ultimate decision-makers. He also asserted that the right to accurate information is a fundamental right for news recipients..The petitioners insisted that the right to accurate information belongs to citizens, not the State, and warned that the government could preemptively declare what is true or false. They also questioned the government's ability to deprive intermediaries of safe harbour protections.