Supreme Court stays IT Ministry’s notification establishing fact check unit under PIB to identify fake news

Supreme Court’s stay will operate till third judge in the Bombay HC decides the question of validity of provisions of the Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

A view of the Supreme Court of India in New Delhi. File | Photo Credit: R.V. Moorthy

The Supreme Court on March 21 stayed a government notification of March 20 establishing the Press Information Bureau’s Fact Checking Unit (PIB FCU) to act as a “deterrent” against the creation and dissemination of fake news or misinformation regarding the “business” of the Centre.

The order was passed by a three-judge Bench headed by Chief Justice of India D.Y. Chandrachud on petitions filed by the Editors Guild of India (EGI) and stand-up comedian Kunal Kamra.

The Bench said the implementation of the March 20, 2024 notification would remain stayed until a third judge of the Bombay High Court took a final call on the validity of provisions of the Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

It is under this provision that the March 20 notification was issued.

The case had gone to the third judge of the High Court following a split verdict by a Division Bench.

The notification was issued by the Centre after the third judge found no reason to stay Rule 3 on March 11.

The Supreme Court did not comment on the merits or legality of Rule 3(1)(b)(v), saying the impact of the provision on the fundamental rights to free speech and expression would be analysed by the High Court.

Appearing for Mr. Kamra, senior advocate Darius Khambata said the establishment of the FCU would result in “every social media intermediary pulling down content for fear of consequences”.

“This will set a deep chilling effect on free speech,” he submitted.

Mr. Khambata said the Centre setting up an FCU to protect the “business” of the Centre was like “Ceasar judging Caesar”.

“Why not an independent unit? Why does only the business of the Central government need protection from misinformation and fake content,” Mr. Khambata asked.

He said individuals needed more protection from fake content than the State.

Mr. Khambata informed the Bench that the Centre had assured the High Court on April 27 last year that it would not implement Rule 3 till a final decision was taken by the court. He pointed to the timing of the issuance of the March 20 notification barely days before the Lok Sabha polls were due to start.

Advocate Shadan Farasat, for the EGI, said the implementation of the FCU run by the government would ensure that only the Centre would have monopoly over the truth.

“There will be a singularity of truth,” he said.

Solicitor General Tushar Mehta referred to several instances in the past when fake news had proliferated on social media, causing harm and even violence.

He said the statutory mechanism was found inadequate to combat the viral dissemination of false content.

He said, except for a few petitioners, the social media intermediaries had not challenged the Rule.

Mr. Kamra, in his petition, argued that the sweep of the Rule operated to “muzzle speech against the Central government”.

“By threatening intermediaries with the loss of their statutory safe harbour should they fail to take down content that the Central government’s FCU identifies as fake, false or misleading, the Rule coerces intermediaries to execute a regime of self-interested censorship of online content relating to the business of the Central government,” the petition argued.

It said the intermediaries, who were profit making commercial enterprises, would choose to bend rather than risk civil or criminal liability for third-party content on their online platforms.