Tl;dr
In a small win for press freedom in the country, the Supreme Court has stayed the notification of the Union Government operationalising the Fact-Check Unit under Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules 2021”) till the constitutionality of the same is finally decided by the Bombay High Court. In appeals filed by the Association of Indian Magazines, Kunal Kamra and others, the Supreme Court set aside the March 11 order of the Bombay High Court whereby the interim applications filed by the Petitioners had been dismissed, thereby paving the way for the constitution of the Fact-Check Unit under the IT Rules, 2021, as amended on April 6, 2023. The 2023 Amendment to the IT Rules 2021 permits an FCU notified by the Union Government to identify “fake or false or misleading” online content “related to the business of the Central Government” and demand intermediaries to remove it from the internet.
Why should you care?
The proposed FCU established as per the 2023 Amendment to the IT Rules 2021, would hold the authority to determine the accuracy of information online and decide whether it should remain accessible or be removed. Failure by intermediaries to take down content flagged by the fact-check unit may result in the loss of their safe harbor protections under Section 79 of the IT Act read with Rule 7 of the IT Rules 2021. This potential outcome raises concerns about the impact on the autonomy of the free press within the realm of the Indian internet.
History of the case before the Bombay High Court
The Association of Indian Magazines, Kunal Kamra and others filed writ petitions challenging the constitutionality of provisions relating to the FCU before the Bombay High Court. In April 2023, as a result of the petitions, the Union Government provided an undertaking not to constitute its FCU. The undertaking, having been accepted by the Bombay HC, has been operating as an effective stay against the amendment.
In June 2023, the Bombay High Court directed that all these petitions be scheduled for final hearing on July 6 and 7, 2023. Thereafter, arguments in the matter took place, and the judgment was finally reserved on September 29, 2023, with the Order recording that the Solicitor-General had fairly stated that the undertaking would continue until the judgment was delivered. However, on 31.01.2024, a split verdict was delivered and the matter was directed to be placed before the Hon’ble Chief Justice of the High Court of Bombay for reference to a third Judge.
It was observed then that the learned Solicitor-General did not have instructions to continue the undertaking indefinitely. Consequently, by way of Order dated 08.02.2024, the Division Bench noted that they were also at odds on the issue of whether the undertaking in the form of interim relief should continue during the pendency of the petitions challenging the constitutionality of the 2023 Amendment. They stated that this should also be taken up by the third Judge.
The question of interim relief was thereafter taken up by the third Judge, to whom it had been referred. After hearing the matter conclusively, by Order dated 11.03.2024, the learned Single Judge rejected the interim relief sought by the Petitioners and refused to stay the formation of the FCU during the pendency of the batch of petitions before the Bombay High Court. Accordingly, the Division Bench, passed the Order dated 13.03.2024 in favour of the majority view and rejected the interim relief sought by the Petitioner. Challenging the denial of interim relief, the Petitioners approached the Supreme Court and argued that a strong prima facie case arose in favour of the Petitioners, which was strengthened by the opinion of the learned Judge who had struck down the constitutionality of the FCU.
Further, not only was the balance of convenience in favour of the Petitioners as the Union Government had failed to demonstrate how a stay on the FCU would cause them grievance, but it was clear that irreparable harm would be caused to the Petitioners if the FCU was allowed to be constituted during the pendency of the petitions challenging the constitutionality of the FCU.
However, though the matter was listed for March 21, 2024, the Union Government, in the absence of a stay, notified the Press Information Bureau (PIB) as the FCU at 6:12 PM on March 20, 2024.
What happened on March 21, 2024?
The matter was taken up by Bench headed by Chief Justice of India DY Chandrachud and comprising Justices J.B. Pardiwala and Manoj Misra. Sr. Adv. Darius Khambata appeared for Kunal Kamra and argued that the FCU would inevitably become a tool to control the narrative of the information that would be available to the public at large. Adv. Shadan Farasat, appearing for Editors Guild of India, emphasised that the FCU would strike at the core of Article 19(1)(a).
Adv. Gautam Bhatia made submissions on behalf of Association of Indian Magazines, highlighting that the meat of the matter was the safe harbour protection guaranteed by Section 79 of the IT Act, 2000, to the intermediaries, and that any provision which dilutes the same should not be taken lightly.
Counter arguments were made by the Solicitor-General appearing on behalf of the Union of India that the FCU was the least restrictive measure, and given the nature of fake news pertaining to the business of the Central Government that did the rounds on social media, it was necessary to constitute a designated FCU to check the same. He further argued that the safe harbour protection would not be diluted and that intermediaries could protect themselves if they took “reasonable efforts” to ensure that content identified by the FCU was flagged on the internet.
The Supreme Court, without making any observations on the merits of the constitutional challenge pending before the Bombay High Court, stayed the notification of the Union Government operationalising the FCU under PIB. They expressed the view that there indeed was a prima facie case in favour of the Petitioner that warranted the staying of the notification till the Bombay High Court finally decides the batch of petitions challenging the validity of the 2023 Amendment to the IT Rules 2021.
We are still awaiting a copy of the final order, and we shall update this post once it is out!
The arguments before the third Judge of the Bombay High Court are slated to begin on April 15, 2024. We will be present in Court and shall keep you updated on what happens next!
We are grateful to the Association for Indian Magazines for their support and confidence in us for taking up this important matter that goes to the root of online free speech for all Indians.
We are grateful to Senior Advocate Arvind P. Datar and Advocate Gautam Bhatia who led the arguments for AIM, and to the IFF Legal Team of Advocates Vrinda Bhandari, Abhinav Sekhri, Radhika Roy and Gayatri Malhotra. We are also grateful to Senior Advocates Darius Khambata and Navroz Seervai for their leadership and guidance, and to Advocates Arti Raghavan and Meenaz Kakalia.
Important Documents:
1. Previous blog post on split verdict in the challenge to the constitutionality of the 2023 Amendment titled, “Bombay HC Delivers Split Verdict in Challenge to IT (Amendment) Rules, 2023. (link)
2. Order dated March 21, 2024. (link)
3. Copy of the appeal. (link)