Bombay High Court Strikes Down Centre’s Fact Check Unit (FCU)

The Bombay High Court has struck down the Centre’s amended Information Technology (IT) rules, 2023 that established a Fact Check Unit (FCU) under the Press Information Bureau (PIB) to flag social media content about its functioning as fake, false or misleading. 

• The Court found the unit unconstitutional due to its vagueness and potential effect on free speech and trade.

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023

• Amendment to IT Rules, 2021: The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023, amended the IT Rules, 2021.

• Amendment changed FCU Status: An official fact-checking unit has operated under the PIB for over four years. 
  • However, this amendment granted the FCU legal authority and the power to enforce a legal obligation on online platforms like Facebook and Twitter to remove any content labeled as “fake” by the FCU.
  • The government designated the Fact Checking Unit (FCU) of the Press Information Bureau (PIB) of the Ministry of Information and Broadcasting (MIB) as the fact check unit of the Central Government.
• Safe Harbour Condition: The content marked by the Fact Check Unit (FCU) as “fake or misleading” will have to be taken down by online intermediaries if they wish to retain their “safe harbor” (legal immunity against third-party content).

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Reasons cited by the Court for striking down FCU

• Ultra vires the IT Act: The rule was “ultra vires”, or beyond the powers, of the Information Technology (IT) Act. 
  • The amendment was ultra vires as it did not comply with the IT Act, 2000, nor was it laid before Parliament according to Section 87 of the 2000 Act. 
  • The Amendment was a delegated legislation.
• Violation of Article 14 and 19: Rule 3(1)(b)(v) of the Information Technology (IT) Rules, 2023 violated key provisions of the Indian Constitution specifically, Article 14 (equality before the law), Article 19(1)(a) (freedom of speech and expression), and Article 19(1)(g) (freedom to practise any profession or business).
• Violation of Reasonable Restrictions under Article 19(2): The amendment placed restrictions on free speech that were not aligned with the reasonable restrictions permitted under Article 19(2).
• Vagueness of “Fake, False, or Misleading”: The expressions “fake, false, or misleading” in the amended IT Rules are too vague and overbroad, leading to uncertainty in their application.
• Failure to Meet the Test of Proportionality: The rule failed the test of proportionality, meaning it imposed excessive restrictions on free speech and expression that were not justified or balanced.
• No Right to the Truth Under Article 19(1)(a): There is no constitutional “right to the truth” under freedom of speech and expression (Article 19(1)(a)).
  • It was also “not a responsibility of the state to ensure that the citizens are entitled only to ‘information’ that was not fake, false or misleading as identified by FCU”.
• Inconsistent Treatment of Digital and Print Media: There was no basis or rationale for treating information in digital form differently from print media, creating inconsistencies in how information related to the Central Government is assessed.
• Chilling Effect on Intermediaries: The rule resulted in a “chilling effect” on intermediaries due to the threat of losing “safe harbour”, or their legal immunity, for hosting third-party content.
• Inadequate Safeguards: The Centre’s argument that decisions by the FCU could be challenged in a constitutional court was deemed an inadequate safeguard.

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