The Union government on Wednesday told the Bombay High Court that it would not notify till July 10, a fact-checking unit to identify fake news against the government on social media under the recently amended Information Technology (IT) Rules. The announcement came in an affidavit filed by the Ministry of Electronics and Information Technology (MeitY).

The ministry filed the affidavit in response to the petition by stand-up comic Kunal Kamra challenging the recent amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021). The ministry, in the affidavit, also said that the courts will be the final arbiters of what is true content and what is false.

"Under Rule 3(1)(b)(v) the identification of the Fact Checking Unit of the Central Government will have no binding effect on the intermediary nor would it have any effect in the nature of direction to block the said information/content as contemplated under section 69A of the IT Act", the affidavit underscored.

A division bench of Justices Gautam Patel and Neela Gokhale noted that the government extended this undertaking until July 10.

The court decided to hear all three petitions starting from July 6, with the petitioners' counsels completing their arguments on July 7. "The petitioners’ counsels shall complete their arguments on July 7 after which we shall set a date for the Union government to put forth their arguments," the court said.

Kamra, in his petition, claimed the new rules could potentially lead to his content being arbitrarily blocked or his social media accounts being suspended or deactivated, thus harming him professionally.

He has sought that the court declares the amended rules unconstitutional and give a direction to the government to restrain from acting against any individual under the rules.

The amendments to the IT Rules, specifically to Rule 3, provides that the Central government 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.

In the latest affidavit, the government said the Rules do not give power to the fact-checking unit to order the removal of any information on an intermediary’s platform. "The only change the Rules make is to hold the intermediary preliminarily responsible to check the information/content, without any obligation to either take it down or block the information/ content," it said.

The government is not supposed to be the final arbiter or decision-maker as to whether any information/content is patently false, untrue or misleading, the affidavit said, adding that the obligation to exercise due diligence lies with an intermediary. If any person is aggrieved by false content/information, he or she can either approach the concerned intermediary or a court, the affidavit said.

The final arbiter for adjudicating whether any information is false and misleading is a court, the government said.

Social media has the potential to facilitate public good but it can also be used for "devastating public mischief, creating law and order problems, and spreading chaos in the country," it said.

"Just like knowingly and intentionally communicating patently false, untrue and misleading information/ content is an anathema to the right of free speech, passing the same content as true information through deceptive and delusory means is the biggest abuse of free speech," it said.

Meanwhile, the Editors Guild of India and Association of Indian Magazines also filed separate petitions challenging the amendments on the ground that they are unconstitutional and arbitrary. They said that they were deeply concerned with the suggestions of the new IT Rules.

According to the government's affidavit, the government has an obligation to protect the rights of both content creators and consumers on social media platforms. It clarified that any content identified as false and misleading by the fact-checking unit under the IT rules would not automatically be taken down. So far, no directions have been issued to any intermediary to remove content under the amended rules.

The government asserted that the right to get true information is also a fundamental right, and that it has a constitutional obligation to ensure that citizens receive accurate and correct information.

"The government is under a constitutional obligation to ensure that through a regulatory mechanism, the citizens of this country get information and content which is true and correct and are protected from receiving deceptive and intentionally propagated and peddled information,” the affidavit said.

In April, the government had told the High Court that the fact-checking unit would not be notified until July 5 and had posted the petition filed by Kamra, challenging the constitutional validity of the rules, for hearing on June 8.

On April 6, 2023, the Union government promulgated amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for a fact-checking unit to flag fake or false or misleading online content related to the government.

As per the amendments, intermediaries such as social media companies will have to act against content identified by the fact-checking unit or risk losing their 'safe harbour protection' under Section 79 of the Information Technology Act. The safe harbour protection allows intermediaries to avoid liability for anything that third parties (users) post.

(Edited by : Anushka Sharma)