The Bombay High Court (HC) on Friday, September 20, held that the 2023 amendment to Rule 3(1)(b)(v) of the Information Technology Rules, 2021, which enables the Union government to set up Fact Checking Units and empowers them to remove content they deem as “fake, false or misleading,” as “unconstitutional.” However, the Tamil Nadu government's Fact Checking Unit stated that they remain unaffected by this ruling.
The 2023 amendment allowed for the union government to set up Fact Checking Units (FCUs) which can deem news as “fake, false or misleading,” following which intermediaries (social media platforms like X or Meta) should place disclaimers on such content and also remove them. If intermediaries fail to comply, they would risk their safe harbour status, which is a legal protection offered to them to ensure that they aren’t liable for third party information published on their platforms.
Justice AS Chandurkar was appointed as a ‘tie-breaker’ judge by the Chief Justice of Bombay after a split verdict on the amendment’s constitutionality was delivered in January 2023. Justice Chandurkar on Friday held that the amendment violates the provisions of Article 14 (Right to Equality), Article 19(1)(a) (Right to Freedom of Speech and Expression) and Article 19(1)(g) (Right to practise any profession) of the Indian Constitution.
Sources in the Tamil Nadu government said that the Tamil Nadu Fact Checking Unit remains unaffected by the Bombay HC’s verdict since the state does not ask intermediaries to remove content. While there were speculations that the TN FCU will have to be shut if the HC struck down the amendment, it may be noted that the state’s unit was not established based on the IT Act 2021, sources said.
The Tamil Nadu fact-checking unit was set up in October 2023 following a Government Order (GO) issued by the Tamil Development and Information (Advertisement) department. The order stated that the main aim of the unit was to identify fake news, misinformation and hate speech against the state government. The FCU, after verifying information based on “various fact checking tools” would declare information as fake or misleading, the GO said. The information that is declared as false or fake will further be categorised as “actionable” or “non-actionable.”
Legal action will be initiated against those categorised as “actionable.”
There are several petitions pending before the Madras HC, challenging the constitutionality of the Tamil Nadu FCU. It may be noted that the Supreme Court had stayed the Union government’s notification to establish a fact checking unit within the Press Information Bureau (PIB) to identify fake news and misinformation in March.