Bombay HC has refused to grant an interim stay on setting up a fact-checking unit

The Bombay High Court on Monday refused to grant an interim stay on setting up a fact-checking unit (FCU) under the recently amended Information Technology (IT) Rules to counter fake and false content on social media. government to identify. and irreparable losses would be caused.

A single bench of Justice AS Chandurkar said no case had been filed directing the government to continue with its earlier statement that it would not issue notice to the FCU pending hearing of petitions challenging the IT rules.

The order was passed on a number of petitions filed by stand-up comedian Kunal Kamra and others seeking a stay on FCU notification pending final disposal of their pleas against the IT rules.

The court said the balance of convenience tilts in favor of the government as Solicitor General Tushar Mehta has categorically argued that political views, satire and comedy are aspects that do not want to be associated with the affairs of the central government.

Notifying the FCU would not result in an irreversible situation as any action taken after the notice would always be subject to the final orders of this court on the validity of the IT Rules, the Supreme Court said.

“The situation, when contrary to the larger public interest, leads me to the opinion that serious and irreparable damage will not occur if the FCU is informed, which justifies the adoption of an interim instruction not to inform the FCU until the challenge to the rules has finally been decided,” Justice Chandurkar said.

The court noted that the petitioners understand that this exchange of information in the form of political treatises or commentaries, political satire, etc. may be targeted if the FCU is notified.

However, the Advocate General has said that the FCU only intends to engage in government affairs in the strict sense and that it has not aimed or attempted to prevent or muzzle political views, satire, sarcasm or political commentary, he noted.

“At this stage, the position of the non-applicant (Centre) in my view alleviates the fears expressed by the applicants that the FCU, under the guise of ‘central government business’, would prevent the expression of political views or comments. , sarcasm, political satire or dissent,” Justice Chandurkar said.

The pleas against the IT rules were referred to Justice Chandurkar after a division bench of Justices Gautam Patel and Neela Gokhale delivered a split verdict in January.

While Justice Patel struck down the challenged rules and termed them unconstitutional, Justice Gokhale upheld them and dismissed the petitions.

Justice Patel had said the rules amount to censorship, but Justice Gokhale was of the view that they do not have any chilling effect on freedom of expression.

The division bench also disagreed on whether a stay should be granted in setting up the FCU pending a hearing on the pleas by the third judge.

Justice Patel had said that the FCU should not be informed, and Justice Gokhale believed otherwise.

Justice Chandurkar said on Monday that the interim applications would now be placed before the referral division of Justices Patel and Gokhale for orders on the matter.

Justice Chandurkar’s opinion would allow the Center to issue notices to the FCU under the IT rules.

Last year, the Center gave an oral assurance to the court that it would not issue notices to the FCU under IT rules until the final judgment on the matter was pronounced.

However, after the division bench’s split judgment, Advocate General Tushar Mehta submitted to the court that the oral assurance could only be extended until the third judge took up the matter for consideration.

After notifying the FCU, the petitioners subsequently submitted an interim request for a postponement.

On April 6, 2023, the Union Government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for an FCU to prevent false, false or misleading online content relating to the government to mark.

According to the IT rules, if the FCU comes across or comes to the notice of messages that are fake or false and contain misleading facts about the affairs of the government, it would report it to social media intermediaries.

Once such a message is flagged, the intermediary has the option to delete the message or place a disclaimer on it.

By choosing the second option, the intermediary loses his safe harbor/immunity and is liable for legal action.

First print: March 12, 2024 | 1:28 hours IST