Source: The Indian Express

Introduction

The Supreme Court has temporarily stopped the government from using its new "fact-checking" power for social media content. This decision came after comedians, journalists, and media groups challenged a rule that would let the government label information about its work as "fake news," forcing social media platforms to either remove such content or risk losing legal protections.

What is the Background and Court Observation of Editors Guild of India v. Union of India & Ors?

Background:

• The case concerns Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2022, which was notified on 6^th April, 2023.
• The Rule stipulates that intermediaries must make reasonable efforts to prevent users from hosting, displaying, or sharing information that "in respect of any business of the Central Government is identified as fake or false or misleading by such Fact Check Unit of the Central government as the Ministry may by notification publish in the Official Gazette specify."
• Multiple petitions challenging the constitutional validity of this Rule were filed before the Bombay High Court, including by the Editors Guild of India and comedian Kunal Kamra.
• During the pendency of these petitions, the Union Government had given assurances that the Fact Check Unit (FCU) would not be notified until final judgment was delivered.
• A Division Bench of the Bombay High Court delivered a split verdict on 31st January, 2024:
  • Justice GS Patel held the Rule unconstitutional in its entirety
  • Justice Neela Gokhale upheld the Rule subject to certain safeguards
• The matter was referred to a third judge, Justice AS Chandurkar, who on 11th March, 2024, rejected the application for interim relief.
• Subsequently, on 20^th March 2024, the Union Government notified the Press Information Bureau as the FCU.

Observations

• The Supreme Court acknowledged that the challenge pending before the Bombay High Court "implicates core values impinging on the freedom of speech which is protected by Article 19(1)(a) of the Constitution."
• The Court found that there exist "serious constitutional questions" regarding the validity of Rule 3(1)(b)(v).
• The Court observed that "the impact of Rule 3(1)(b)(v) on the fundamental right to the freedom of speech and expression would fall for analysis by the High Court."
• Without expressing an opinion on the merits to avoid foreclosing "a full and fair consideration by the third Judge of the High Court," the Supreme Court nevertheless found sufficient grounds to stay the 20^th March, 2024 notification.
• The Court set aside:
  • The opinion of the third judge dated 11^th March, 2024, declining interim relief
  • The consequential orders passed by the Division Bench on 13^th March, 2024
• The Court directed that pending the disposal of the proceedings before the High Court, the notification of the Union Government dated 20th March, 2024, shall remain stayed.

Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021

This rule states that a deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

• Statutory Framework:
  • The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified under Section 87(2) of the Information Technology Act, 2000, superseding the previous Information Technology (Intermediary Guidelines) Rules, 2011.
• Scope and Application:
  • These Rules apply to:
    • Intermediaries, including social media intermediaries and significant social media intermediaries
    • Publishers of news and current affairs content
    • Publishers of online curated content
• Key Provisions:
  • Due Diligence Requirements:
    • Intermediaries must:
    • Publish rules, regulations, and user agreement for access
    • Inform users about prohibited content
    • Remove content within 36 hours upon receiving court order or government notification
    • Provide information for verification of identity when required by legally authorized government agencies
  • Additional Requirements for Significant Social Media Intermediaries:
    • Appointment of key personnel: -
      • Chief Compliance Officer - Nodal Contact Person - Resident Grievance Officer
      • Implementation of automated tools to identify and remove unlawful content
      • Monthly compliance reports
• Grievance Redressal Mechanism:
  • Intermediaries must:
    • Appoint a Grievance Officer
    • Acknowledge complaints within 24 hours
    • Resolve complaints within 15 days
• Code of Ethics:
  • Publishers must adhere to:
    • Norms of Journalistic Conduct of the Press Council of India
    • Programme Code under the Cable Television Networks Regulation Act
    • Content classification and parental locks for online curated content
• Oversight Mechanism: Establishes a three-tier structure:
  • Level I: Self-regulation by publishers
  • Level II: Self-regulation by publishers' self-regulating bodies
  • Level III: Oversight mechanism by the Central Government
• Legal Implications:
  • Non-compliance may result in:
    • Loss of intermediary status and consequent liability for hosted content
    • Penal provisions under the Information Technology Act, 2000
• Constitutional Context:
  • The Rules must be interpreted and applied in a manner consistent with:
    • Article 19(1)(a) of the Constitution guaranteeing freedom of speech and expression
    • Reasonable restrictions permissible under Article 19(2)

What are the Concerns of Amendments,2023 ?

• Definitional Ambiguity
  • The amendment suffers from vagueness and overbreadth:
    • Fails to provide a precise definition of "fake news"
    • Employs undefined terminology, particularly "any business" of the Central Government
  • Legal Precedent:
    • Shreya Singhal v. Union of India (2015), the Supreme Court held that any law restricting speech must meet the test of definiteness and narrow tailoring
• Procedural Deficiencies
  • The Rules lack specificity regarding:
    • Qualifications required for members of the Fact Check Unit (FCU)
    • Standard operating procedures for determining false or misleading information
  • Absence of:
    • Clear guidelines for classification of information as false or misleading
    • Appellate mechanisms for challenging FCU determinations
• Constitutional Concerns
  • Potential infringement of Article 19(1)(a):
    • Grants unilateral
    • May result in prior restraint on speech and expression
  • Doctrine of Proportionality: The measures appear to be disproportionate to the stated objective of combating misinformation
• Impact on Intermediaries
  • Coercive Compliance Mechanism:
    • Intermediaries face loss of safe harbor protection under Section 79 of IT Act
    • May lead to over-censorship due to fear of liability
  • Absence of:
    • Due process for intermediaries to contest FCU determinations
    • Safeguards against potential misuse of power
• Judicial Scrutiny
  • The amendment raises several justiciable issues:
    • Whether it satisfies the test of reasonableness under Article 19(2) b)
    • Whether it adheres to principles of natural justice
  • Potential violation of:
    • The principle of separation of powers
    • The doctrine of excessive delegation
• Democratic Implications
  • The Rules may impede:
    • Free flow of information in public discourse
    • Ability of citizens to critically evaluate government actions
  • Concerns regarding:
    • Centralization of truth determination
    • Impact on investigative journalism and public accountability

Conclusion

The Court's decision puts this controversial rule on hold until the Bombay High Court can fully examine whether it violates free speech rights. This temporary pause is significant because it comes just before national elections, when public debate about government performance is crucial. The case highlights the ongoing tension between government control of information and freedom of expression in the digital age.