Bombay HC Rules Against Government's Fact-Check Unit, Upholds Free Speech

The Bombay High Court has issued a 2:1 decision that overturned the amended Information Technology Rules, which allowed the government to set up a Fact Check Unit. The announcement came on Thursday, September 26, where the court ruled the amendment unconstitutional.

The case was first reviewed in January, when the division bench of Justices Gautam Patel and Justice Neela Gokhale delivered a split decision. Justice Gautam Patel, who has since retired, had objected to the rules, arguing they amounted to censorship. On the other hand, Justice Neela Gokhale had supported the rules, claiming they did not threaten free speech.

Following this 1:1 opinion, the Chief Justice of the Bombay High Court appointed Justice Chandurkar as the tiebreaker in February. On September 20, Justice Chandurkar provided the final decision. Justice Chandurkar sided with Justice Patel’s earlier opinion. He ruled that the amended rules violated free speech and should be repealed.

After this, petitions against the rules have been accepted. On September 29, the bench of Justices AS Gadkari and Neela Gokhale announced that rule 3(1)(v) of IT rules is now illegal. The petition was filed by the Association of Indian Magazines, Editors Guild of India, News Broadcast and Digital Association, and stand-up comedian Kunal Kamra.

The case was based on changes made by the Centre in 2021 to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules. It also proposed to set up a Fact-Checking Unit (FCU) to monitor content related to government activities on social media and flag any content deemed false.

Once flagged, social media platforms had to either take down the content or add a disclaimer. Not complying could lead to legal action.

The petitioners argued that this posed a threat to freedom of speech. They believed it could have a chilling effect on the content they produce. Kunal Kamra, who is a comedian, said the rules would allow his content to be taken down arbitrarily or even result in his accounts being blocked or suspended.

The government defended the rules by saying they were designed to protect the public from false information about government activities. It argued that the Fact-Check Unit would help prevent harm caused by misleading content.

The ruling by the High Court is expected to be challenged in the Supreme Court.