Bombay HC strikes down provisions for setting up FCU to monitor social media

Mumbai: The Bombay High Court on Friday struck down provisions for setting up a Fact Checking Unit (FCU) to monitor content on social media, as the third judge in his referral verdict ruled against the 2023 amendments to the Information Technology Rules.
The matter was referred to a third judge after a division bench of Justice Gautam Patel and Justice Neela Gokhale delivered a split verdict on January 31. Justice Patel struck down the 2023 amendments to the IT Rules, holding them to infringe constitutional principles, whilst Justice Gokhale upheld their validity and dismissed the petitions.
Justice AS Chandurkar on Friday concurred with Justice Patel’s view that the Rules were unconstitutional.
Satirist Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines had filed petitions challenging the validity of amended Rules 3(i)(II)(A) and (C) of the Information Technology Rules, 2023. They argued these were ultra vires to Section 79 of the Information Technology Act, 2000 and violated principles enshrined in Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India.
The petitioners contended that the rules obligated intermediaries to make “reasonable efforts to cause users to not publish, display, upload or share information in respect of business of the Central Government that is identified as fake, false or misleading by such fact check unit of the Central Government as the Ministry may specify.”
They argued the Rules infringed on freedom of speech and expression, as the term “business of the central government” was broad and vague. These vague terms, they claimed, were used to “create a chilling effect where intermediaries will resort to take down any information flagged by the Central Government’s fact-checking unit, rather than risk losing safe harbour.”
During the pendency of the petitions, the central government had stated they would not notify the FCU and maintained this stance until the split verdict. After the split verdict, when the Central government refused to continue this statement, Kamra and the associations applied to Justice AS Chandurkar, to whom the matter was referred for final decision, for a stay on notifying FCU.
Justice Chandurkar on March 11 rejected these pleas, observing that the petitioners’ apprehension of being targeted for their political discourse, comments, or satire on social media if FCU was notified, was addressed by the Solicitor General of India’s statement. The Solicitor General had stated that “the rule intends only to deal with government business in its strict sense and that it did not aim or attempt to prevent satire, sarcasm or political comments. Political views are not sought to be muzzled.”
The judge also referred to an Apex Court ruling, holding that passing of legislation would give rise to a cause of action only when the provisions, upon implementation, give rise to civil or evil consequences. “The challenge raised must be based on certain and definite set of facts and not on an apprehension,” the judge said.