No protection for misinfo: Govt in fact check unit plea

The central government has filed an appeal against the Bombay high court’s September 2024 judgment that struck down the fact check amendment of Information Technology Rules, 2021, as unconstitutional. The Centre has argued that the amendment — which allowed it to notify a fact check unit (FCU) — does not violate Articles 14 and 19 of the Constitution, and applies only to “intentional misinformation”.

Urging the Supreme Court to quash the judgment, it has sought an interim relief through an ex parte stay (without hearing other side) on the judgment dated September 26 and the division bench’s opinions dated January 31, 2024.

In its challenge, the Centre argues that the rule complies with Article 19 and “reinforces” the public’s right to access “true and accurate information about the functioning of the Central Government”. It maintains that since Article 19 doesn’t protect deliberately spreading misinformation, regulating it “does not result in any chilling effect on free speech”.

The special leave petition was filed in the Supreme Court on December 24, 2024, and is yet to be admitted. HT has seen a copy of the SLP.

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The issue relates to the April 2023 amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The changes empowered the government to establish a “fact check unit of the Central Government” to identify “fake or false or misleading” information “in respect of any business of the Central Government”.

Multiple petitioners, including comedian Kunal Kamra, Editors Guild of India, News Broadcasters and Digital Association, and Association of Indian Magazines, challenged the amendment to rule 3(1)(b)(v), highlighting concerns about freedom of speech and expression, journalistic freedom, the inadequacy of a government-appointed body to “fact check” news related to itself, and other issues.

On January 31, 2024, a division bench of the Bombay high court comprising justices GS Patel and Neela Gokhale delivered a split verdict on the constitutionality of the fact check amendment, referring it to a third judge, justice AS Chandurkar, for opinion.

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Justice Chandurkar concurred with justice Patel, ruling the amendment unconstitutional and the expression “fake or false or misleading,” without definition, as vague and overboard. He stated that the rule could not be read down and failed to meet the proportionality test. He added that the amendment would have a “chilling effect” on intermediaries.

Thus, the amendment to Rule 3(1)(b)(v) was declared unconstitutional and struck down.

While the third judge was hearing the matter, on March 20, 2024, Meity notified the Press Information Bureau’s Fact Check Unit as the official fact check unit under the rule. The Supreme Court subsequently stayed the notification, citing “serious constitutional questions” raised by the petitions and the rule’s impact on the fundamental right to freedom of speech and expression.

‘Does not violate free speech’

The government has now contended that “there is no protection to misinformation and falsehood” under Article 19.

The Centre contends that just because words like “fake,” “false,” and “misleading” cover various situations and cannot be defined with “mathematical exactness” doesn’t mean they are “hit by the vice of vagueness.”

The Centre added that “the principle of subjective truth and interpretation” cannot protect “intentionally spread falsehood” meant to disturb public order.

The government noted that courts, not the government, remain the ultimate arbiter of truth.

The government also argued that American judgments should not be used to interpret free speech rights under Article 19, as the Supreme Court has “repeatedly” held that free speech jurisprudence in India and the US are “materially different.”

The government contended that the amendment was introduced “to tackle the increase in misinformation being spread and circulated with regard to the programs and policies of the Central Government.” It stated that existing fact-check mechanisms were insufficient and the amendment is “proportional to the object sought to be achieved.”

It claimed that misinformation threatens free speech “by drowning out legitimate discourse with false information.”

“The Rule is both necessary and proportional to the object sought to be achieved by it since it restricts only intentional false speech and does not cover criticism, satire, commentary or other forms of expression,” the SLP stated.

The petition argues that government appointment of FCU members cannot be “sufficient ground to presume that the FCU would be biased.”

The SLP clarifies that when the FCU identifies information as fake, false, or misleading, intermediaries aren’t mandated to remove it. The FCU would only “notify” intermediaries upon detecting fake information.

“The only standard of action expected from the intermediary is to take ‘reasonable efforts’ to cause this information not be hosted on the website. Whether the effort made by the intermediary qualifies as ‘reasonable effort’ would ultimately be determined by the competent court,” the petition stated.

The government argued that the Shreya Singhal judgment of 2015 doesn’t apply here, as it addressed penal law while the fact check rule has no penal consequences.

The Centre maintains that the rule doesn’t violate Article 14 as the terms “fake,” “false,” and “misleading” aren’t vague but have specific meanings and “must be interpreted in their literal sense as applying to ‘non-existent’ facts.”

It contends the rule “is clear and specific in its operation” targeting only “intentional misinformation,” thereby complying with Article 14, and that the Bombay HC had “erroneously severed the requirement of ‘knowledge’ and intention’” from the rule.

The SLP was filed within the period of limitations of 90 days. On January 4, the registry identified defects in the petition that haven’t yet been cured.

Divyam Nandrajog, a Delhi-based lawyer, explained that such delays in curing defects are normal. “There is a period of 28 days within which defects may be cured as per the Supreme Court Rules. If they are not cured within this time period, a suitable application for condonation of delay needs to be filed to explain the delay. State matters sometimes exceed the time period on account of coordination between the department and the counsel, and a delay of 2-3 months is regrettable but not unusual,” he said.

The “Business of the Central Government” isn’t vague or overbroad and should be read with Article 73 (defining the central government’s executive power) and the Allocation of Business Rules, 1961, it argues, adding that creating a specific class of information about central government business isn’t discriminatory under Article 14, as the government “ought to be presumed to know accurate information as to its functioning.”

The Bombay HC, the petition states, hadn’t considered that the rule doesn’t apply to all information but “is specifically aimed at the subcategory of ‘fact’” – targeting “fake, false, and misleading facts.”

The SLP raises eleven questions, including whether the third judge “erred” by holding that the rule fails the proportionality test due to lack of safeguards “when multiple safeguards such as requirement of intent, grievance redressal mechanism and ultimate adjudication” by courts are provided in the rules. It also questions whether the Bombay HC petitioners challenged the rule “in a vacuum without any proof of actual harm,” and whether the court “had not appreciated the fact that the requirement of knowledge and intent is to be read into the Impugned Rule.”