Kunal Kamra, stand-up comedian recently moved the Supreme Court seeking an interim stay on the Central government notification for forming Fact Check Units (FCUs) under the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules (IT Amendment Rules 2023).
The aforesaid rules state that the Centre’s Ministry of Electronics and Information Technology can notify a fact-checking body which is empowered to identify and tag what it considers false or fake online news with respect to any activity of the Central government.
Notably, it is Kunal Kamra’s case that the FCU regime will in effect coerce social media companies to implement self-interested censorship of online content about the Central government.
The stand-up comedian in his plea mentioned that intermediaries, as profit making, commercial enterprises would naturally choose to avoid civil or criminal liability for third-party content, and would invariably remove it . He noted that there is already a robust, existing mechanism to address the concern of fake news about the Central Government in the form of the Press Information Bureau or the PIB.
On March 11, the Bombay High Court had rejected the plea for stay prompting Kamra to move the apex court. The IT Amendment Rules 2023 amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021). Notably, the validity of the IT Amendment Rules, 2023, specifically Rule 3, is already under challenge before the High Court through a clutch of petitions. A division bench of Justice GS Patel and Justice Neela Gokhale delivered a split verdict on the matter on January 31. The matter is now before a tie-breaker judge.
Currently, the petitioners including Kunal Kamra sought a stay on formation of FCUs till a final decision on the matter but the High Court rejected the plea for stay leading to the present appeal before the apex court. Kamra in his plea asserted that though IT Rules seem to target intermediaries, effectively it is the users (content creators) who are affected by the same.
The plea further contended that while the Impugned Rules (and the IT Rules in general) are facially directed at intermediaries, it is users and the information created and hosted by them on various platforms that are the subject of the Impugned Rules. It added that the rules are extremely broad in its sweep, and would operate to muzzle speech against the Central Government.
The plea underlined that the units would be empowered to direct social media companies to take down any content that the government deems fake, false or misleading, but without due process. It continued that the Impugned Rules do not contemplate the issuance of a notice to the user prior to the identification of information by the FCU, or prior to the takedown by the intermediary. It underlined that the rules would apply to any content hosted by intermediaries that contradict facts, figures or data of the government.
In addition, the plea pointed out that the Rules will lead to telecom service providers and social media intermediaries taking arbitrary action against content flagged by FCU. The stand-up comedian contended that the units would enable muzzling of political speech and deprive citizens of their right to information by making the former the sole arbiter of truth on information and a judge in its own cause.
The plea noted that the concept of safe harbour is not solely for the protection of intermediaries from third-party liability. It contended that the threat of suspension or deactivation of accounts will deter users from posting content in the fear of any criticism or opposition to government policy. The plea asserted that this institution of a chilling effect will greatly affect public discourse and have a negative impact on democracy as a whole as it is a direct attack on free speech, thought and expression.
Kunal Kamra’s plea was filed through advocate Pritha Srikumar Iyer and drawn by advocate Arti Raghavan. The plea is scheduled to be heard tomorrow by a bench comprising Chief Justice of India DY Chandrachud with Justices JB Pardiwala and Manoj Misra. Meanwhile, a similar appeal by the Editors Guild of India filed through advocate Shadan Farasat has also been tagged with it.