On March 22, 2024, the Supreme Court of India issued stay orders against the proposed Fact Check Unit under the Press Information Bureau (PIB), which was instituted by the Central Government to certify the veracity of any news about any work done by the Central Government. The need for a Fact Check Unit is reasonable, but the manner in which it has been implemented leaves ambiguity with respect to some aspects that we seek to examine in the present article.
The Ministry of Electronics and Information Technology (MeitY) has been actively issuing advisories, particularly in light of the upcoming General elections in India in April-May 2024. These advisories aim to curb the potential use of Generative AI to spread fake news on social media platforms.
The Fact Check Unit, operating under the Press Information Bureau (PIB), was established as a crucial step to verify the accuracy of news published on social media platforms. Its mandate includes certifying the veracity of news concerning government departments and the work done by the central government. Any news deemed fake by the Fact Check Unit must either be removed from the platform or marked as of doubtful authenticity. However, if the platform continues to display the content marked to be of doubtful authenticity, the platform cannot take the benefit of safe harbour available to the platform as an intermediary.
This issue arose when Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 were notified. In Rule 3(1)(b) (v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023, there was a provision for a Fact Check Unit to be set up. This Rule was challenged by the Editors Guild of India and Kunal Kamra before the Bombay High Court as they were of the view that the central government should not be allowed to decide the veracity of any news where there can be a conflict of interest as free speech and news reporting will get impaired if the Fact Check Unit is not independent of Government Control. The matter was sub judice, and the Central Government had relented in its submissions before the Bombay High Court to not set up a Fact Check Unit till the disposal of the case. However, with the upcoming general elections, there was a need to mark fake news to avoid the use of digital media platforms for wrongful dissemination of information that may create bias in the minds of the electorate. On March 11, 2024, the Bombay High Court refused to grant a stay order against the Fact Check Unit, which was proposed to be notified by the Central Government.
Consequently, on March 20, 2024, by a fresh Notification, the Fact Check Unit under PIB was announced by the Central Government will review all news pertaining to any work done by the Central Government. Aggrieved by this sudden turn of events and refusal to grant a stay against the Fact Check Unit by the Bombay High Court, the Editors Guild of India, News Broadcasters and Digital Association and Association of Indian Magazines and Kunal Kamra have approached the Supreme Court challenging the Fact Check Unit under the proposed amendments to IT Rules, calling it arbitrary, unconstitutional, and in violation of fundamental rights.
The petitioner highlighted the unfortunate situation in which the government was giving itself the power to decide which news articles should be seen on social media by using the Fact Check Unit agency. "It was a question of Ceaser judging Ceaser", as only the central government could verify the news reports. It was questioned why it was being treated as a separate category and why all others were being discriminated against without any justification. It was further highlighted that there should be an independent body that operates the Fact Check Unit for the benefit of all sections of social media users, media persons, news reporters, editors, publishers, platforms, as well as the governments of states, centres and departments.
The matter was heard by the three-judge bench, which opined that the manner in which the Fact Check Unit was notified while the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 was still being examined by the Bombay High Court was likely to affect the freedom of expression guaranteed as a Fundamental Right under the Constitution.
Significantly, the Supreme Court, without delving into the merits of the case, has issued a Stay Order against the operation of the Fact Check Unit under PIB. This order will remain in effect until the case pertaining to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 is decided by the Bombay High Court.
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