Bombay HC gives split verdict on plea against fact check unit rule, CJ to send case to third judge

MUMBAI: A two-judge bench of Bombay high court on Wednesday delivered a split verdict on the validity of a rule under the amended Information Technology Act that empowers the Centre to have a fact-checking unit to identify any fake, false or misleading information about its business on social media platforms.
The matter will now be referred to a third judge by Chief Justice Devendra Kumar Upadhyaya.Solicitor general Tushar Mehta said the rule will not be notified for 10 days.
Such fact check cannot be unilateral by the Centre, said Justice Gautam Patel, accepting the petitioners' argument that such a rule will have a chilling effect. Justice Neela Gokhale differed and said the Centre is best placed to know what the facts are about its business.
After political satirist Kunal Kamra, Editors Guild of India, News Broadcasters & Digital Association and Association of Indian Magazines moved Bombay HC questioning the constitutional validity of an IT rule that governs social media intermediaries, Justice Gautan Patel struck down the rule in a detailed 148-page ruling. The petitioners had challenged, through defence counsel Navroz Seervai, the validity of rule 3 (1) (b) (V) of the Intermediary Guidelines and Digital Media Ethics Code) Rules, under the IT Act which was amended last April.
Justice Neela Gokhale, on the other hand, in a 92-page separate judgment dismissed the petitions and said the “un-amended rule already dealt with information which is patently false and untrue, which the user knows to be such and yet intentionally posts it online... Culled out of this is a category of information relatable to ‘business of government’ which is available for scrutiny by the FCU. Since it is government which is in the best position to provide correct facts on any aspect related to the conduct of its own business, the vagueness of the term by itself is not sufficient to strike down the entire Rule”.
“The 2023 amendment’s prohibition is independent of any user knowledge or intent,” said Justice Gautam Patel on Wednesday, saying it is “unthinkable that any one entity—be it the government or anyone else” can unilaterally “identify” content to be “fake, false or misleading”. He added: “That surely cannot be the sole preserve of the government. The argument that the government is ‘best placed’ to know the ‘truth’ abo ut its affairs is equally true of every citizen and every entity. Paradoxically, complaints of a grievous nature (pornography, child abuse, intellectual property violations) can only be taken down after following a grievance redressal procedure; yet anything relating to the business of the central government can be identified as fake, false or misleading by the FCU—and cannot be hosted.”
Justice Gokhale held the words ‘fake’, ‘false’ or ‘misleading’ are to be understood in the ordinary sense of their meaning. “The qualification to the said words is that the content must be known to be false, fake, or misleading and yet shared with malicious intent to attract the applicability of the Rule” and hence the rule is not vague and cannot be struck down on that ground, she said. Justice Patel, however, said “the entire argument of the Union has more or less proceeded on the basis that all users are individuals.” He said, “But… that is entirely incorrect. Users are also entities such as news outlets and journals. Not only do they have their own factchecking systems, but they and their individual writers publish in print and online. The decisive test must surely be that if the material in print cannot be subjected to FCU checking and compelled deletion, there is no reason why, merely because the exact same material also appears online it is susceptible to unilateral determination of fakeness, falsity or being misleading.”
Tushar Mehta justified the rule as a “balancing mechanism” brought in as guidelines for due diligence after a meeting with intermediaries themselves to deal with rights of all five stakeholders, including the rights of recipients to get true information and to deal with the rising threat of ‘deepfakes.’ Since the case has to be assigned to a third judge now, Justice Patel requested the SG to continue the undertaking against notifying the FCU rule be continued for four more weeks. Mehta was not keen, but once the HC said it was a courtesy to the CJ, he consented to extending the undertaking for 10 days.