The Supreme Court has issued a notice to comedian Kunal Kamra among other petitioners as it prepares to review the Centre’s appeal against a 2024 judgment from the Bombay High Court. This earlier ruling invalidated rules that would permit the establishment of a Fact Check Unit (FCU) tasked with identifying and flagging “fake or misleading” content related to government activities on social media.

A three-judge bench, led by Chief Justice Surya Kant and accompanied by Justices R Mahadevan and Joymalya Bagchi, has instructed the respondents, which include Kamra, the Editors Guild of India, and the Association of Indian Magazines, to submit their responses within four weeks.

Background of the Case

This case is centered around the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. These rules aimed to authorize the Centre to create a Fact Check Unit to identify content deemed “fake, false, or misleading” concerning the government’s functions on social media platforms.

If the FCU flagged any content, social media companies could face mandates to remove it in order to maintain their legal protections, often referred to as “safe harbour,” which safeguards platforms against liability for user-generated content.

Balancing Free Speech and Misinformation

During the proceedings, Chief Justice Surya Kant indicated the court’s need to take a nuanced approach to the challenge of misinformation while safeguarding free speech rights. He remarked on the potential serious repercussions of misleading information in the digital landscape, noting that such content can significantly impact individuals’ lives.

The Chief Justice also pointed out the necessity for clear guidelines that outline the scope of addressing misinformation while examining whether the proposed framework places disproportionate responsibility on the government and minimal obligations on social media platforms.

Centre’s Justification for the Rules

Representing the Centre, Solicitor General Tushar Mehta defended the amendment as a vital measure against misinformation, assuring that it was not intended to suppress criticism, satire, or comedy. According to Mehta, the government’s goal is not to restrict online content but rather to develop a reliable mechanism for identifying misinformation concerning its operations.

Respondents Challenge the Delay and Framework

Senior advocate Arvind Datar, speaking for part of the respondents, contested the appeal from the Centre, highlighting that it was filed over 400 days after the original ruling. He emphasized the High Court’s recommendation for a comprehensive regulatory framework if the government intended to launch a fact-checking system, rather than just modifying a singular clause within the existing IT Rules.

Datar further noted that social media intermediaries already adhere to multiple compliance requirements under the current regulations and can address problematic content within a 24-hour timeframe. Respondents expressed concerns that labeling content as “fake” by the government could pressure platforms into removing it, potentially undermining free speech online.

Bombay High Court’s Decision

In its September 2024 ruling, the Bombay High Court declared the amended rule as vague and excessively broad. The court expressed that the provision could impose a “chilling effect” on free speech and have adverse repercussions for social media platforms. This decision followed petitions filed by Kunal Kamra, the Editors Guild of India, the News Broadcasters and Digital Association, among others.

Future Proceedings

The Supreme Court has denied the Centre’s request to impose a temporary stay on the High Court’s judgement but has indicated its intention to resolve the matter in due course. The Chief Justice mentioned that efforts would be made to finalize the principal case, scheduling further hearings after a four-week period.

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