NEW DELHI: The Bombay High Court has struck down the amended Information Technology (IT) Rules, which aimed to allow the central government to establish a fact-check unit to combat misinformation about the government, deeming them “unconstitutional” in the case of Kunal Kamra vs. Union of India & Others.
The ruling was made by Justice A.S. Chandurkar, who served as the tie-breaker after a split verdict from a division bench in January 2023. “I have considered the matter extensively. The impugned rules violate Article 14 (right to equality), Article 19 (freedom of speech and expression), and Article 19(1)(g) (freedom and right to profession) of the Constitution of India,” he stated. He also criticized the terms “fake, false, and misleading” in the rules as “vague and therefore problematic” due to the lack of clear definitions.
The case was escalated to Justice Chandurkar after Justices Gautam Patel and Neela Gokhale delivered conflicting opinions in January—Justice Patel striking down the rules while Justice Gokhale upheld them.
The IT Amendment Rules, 2023, made changes to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. A significant provision under Rule 3 empowered the central government to create Fact-Check Units (FCUs) responsible for identifying and flagging false or misleading news about the government on social media and online platforms.
On April 6, 2023, the Union government introduced amendments to the IT Rules, which included provisions for an FCU to monitor online content related to the government. If the FCU identified any posts as fake or misleading, it would alert social media intermediaries. These intermediaries then faced a choice: either remove the flagged post or place a disclaimer on it. Opting for the latter would forfeit their safe harbor protections, exposing them to potential legal liability.
