The Union government informed the Bombay High Court on Thursday that it will not notify till July 5, the formation of the fact-checking unit (FCU) which will be empowered under the Information Technology Rules to identify and tag contents which it considers false or fake online news with respect to any activity of the Union government.
Additional Solicitor General Anil Singh made the statement before a division bench of Justices Gautam Patel and Neela Gokhale which is hearing a plea by standup comedian Kunal Kamra challenging the recent amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).
Singh sought that the court keep the plea for final hearing in June.
Kunal Kamra's advocate opposes adjournment
Senior Advocate Darius Khambata and Arti Raghavan, appearing for Kamra, opposed the adjournment raising apprehension that once the notification comes out, it will apply to content retrospectively.
However, the bench felt that there was no reason for immediate hearing of the plea for stay or suspension of operation of the amended Rules.
Court's observations
“We believe this (apprehension that it will be effective retrospectively) is not reason to immediately go into the question of stay or suspension of operation of the said Rule.. Without the fact-checking unit being notified, the Rules will not be operational,” said the bench.
The judges expressed that the draft Rules were not operational and if the petitioner had apprehension that it would be effective retrospectively then he should wait till it was finalised before putting out fresh posts online.
“We are concerned with the draft rules which is yet to be made operational… If you say, between now and June, I will put out posts which are satire or parody because you don't know when it (Rules) will be effective and it can affect me, then take a holiday…”
Kamra's advocate urged court to hear arguments for interim relief
Khambata had urged the court to hear the arguments for interim relief and then it can be kept for final hearing later. However, the bench felt that there was no need for the same and it can be heard finally in June.
“The rule will not be operable for the fact check unit till it is notified. Even if matter is heard for ad-interim, it will require full hearing, covering all ground and that is likely to be heard for final disposal. We do not see why the same material has to be heard twice when it can be disposed of at the stage of admission,” the bench said in its order.
The court questioned whether the petitioner was questioning the competence of the executive to frame these rules. To this, Khambata replied in affirmative.
The HC has kept the petition for hearing on June 8.
Kamra's plea against amendment
Kamra contended in his plea that the amendment to the rule will lead to telecom service providers and social media intermediaries to take action against content flagged by the fact checking unit. Failing this, they would lose the safe harbour protection under Section 79 of the Information Technology Act.
Updates in the case
The Ministry of Electronics and Information Technology (MeitY) had filed an affidavit last week stating that the Union government’s impending Fact Checking Unit may only direct removal of false or misleading information pertaining to Government policies and programs, not satire or artist impression. It stated that the false and misleading information could impact electoral democracy and weaken the trust of citizens in democratic institutions.
The bench however expressed its prima facie opinion that as opposed to the affidavit, the rules did not seem to offer protection to fair criticism of the government like parody and satire.
