Won't notify fact-checking unit till July 10, Centre tells HC, says courts will be final arbiters of truth

Mumbai: The Union government on Wednesday told the Bombay High Court that it would not notify the fact-checking unit for identifying fake news against the government on social media till July 10.

The Union Ministry of Electronics and Information Technology in its affidavit in response to stand-up comic Kunal Kamra's petition challenging the amended IT rules also said that the courts will be the final arbiters of what is true content and what is false.

While the government defended the Rules, Editors Guild of India and Association of Indian Magazines also filed separate petitions challenging them on the ground that they are unconstitutional and arbitrary.

The government's affidavit said the government has the obligation to not just protect the rights of those who post content on social media but also the rights of those who are consuming content.

Any information identified as false and misleading by the fact-checking unit under the IT Rules would not result in automatic take-down of such content, and to date no directions have been issued to any intermediary to remove any content under the amended Rules, it added.

The right to get true information is also a fundamental right, the government said.

“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 HC that the fact-checking unit would not be notified till July 5.

On Wednesday, division bench of Justices Gautam Patel and Neela Gokhale noted that Additional Solicitor General Anil Singh had stated that this undertaking stood extended till July 10.

The court said it would hear all three petitions from July 6.

"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.

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.

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.

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.