Challenge to IT Rules, 2023: Bombay High Court tie-breaker judge reserves verdict on fact-check units

The Bombay High Court on Thursday reserved its verdict on pleas challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules 2023) . .Justice AS Chandurkar reserved his verdict following a split verdict passed on the issue in January this year..The IT Amendment Rules 2023 amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).The validity of Rule 3, which gives power to the Central government to form Fact Check Units (FCUs) for identifying false online news, was specifically challenged before the High Court through a clutch of petitions.The petitioners have said that the amendments were ultra vires Section 79 of the Information Technology Act and Article 14 (right to equality) and 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 in the matter.While Justice Patel ruled in favour of the petitioners and struck down Rule 3, Justice Gokhale dismissed the petitions and upheld the validity of the Rule..Thereafter, the High Court Chief Justice appointed Justice Chandurkar to give his tie-breaking opinion in the case..The petitioners concluded their arguments in April, largely contending that the FCUs are meant to bring in total State censorship on anything the government does not want people discussing. They have also argued that there in no provision for the FCUs to fulfil their purported intent of keeping the citizens informed.The Central government argued that the FCUs do not intend to curb criticism, satire, fun or even an insult, but are limited to only governmental business."The impugned rule applies only in context of information which finds its place in official files of the government of India under business rules," Solicitor General Tushar Mehta stated.Responding to the argument that Rule 3 would have a chilling effect on free speech, Mehta stated,"If there is chilling effect for fake and false news, it should be a chilling effect...Everyone should be warned they can't put fake or false news."His argument was that there is no chilling effect, as the government will not be the final arbiter. He explained that the first arbiter would be the intermediary and the final one will be a court.He further argued that the right to have correct information is also a fundamental right of the recipient of news..In the rejoinder submissions, the petitioners stressed on the redundance of FCUs that would ask intermediaries to take down content from their platforms. They argued that false and incorrect speech can be countered without unnecessary action being taken against flagged content.Further, it was argued that the right to correct information, if at all it exists, is a right of citizens as opposed to a right of the State to assert on citizens, under the garb of protecting free speech.The petitioners argued that it did not matter that the court was the final arbiter, as the government could pre-emptively declare what was true or false. They submitted that intermediaries would take the content down to avoid commercially harmful lawsuits and questioned the government's ability to deprive intermediaries of safe harbour protection..On Thursday, SG Mehta underscored the significance of FCUs and discussed the risks posed by social networking platforms if a fact-checking system isn't in place. He highlighted the potential for individuals based abroad to incite violence within the country.