FCU Notification: Kunal Kamra Moves Supreme Court Seeking Suspension of Central Government’s Fact-Checking Units as Per 2023 IT Rules

(Judicial Quest News Network)

The Supreme Court on Thursday will hear the a batch of petitions challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (IT Amendment Rules 2023), which has given the powers to Central Government to create a Fact-Chek Unit (FCU).

This move by Kamra comes after Bombay High Court refused to stay the notification by Centre to forme FCUs till the final verdict is out on the constitutionality of IT Amendment Rules 2023.

Kamra submits that the FCUs regime will in effect coerce social media companies to implement self-inerested censorship of online content about the Central government.

The principal ground of challenge to the impugned Rule in all these petitions is the loss of safe harbor by the intermediaries on account of failure to observe due diligence as provided in Part-II of the Rules.

The loss of immunity under Section 79(1) and 79 (2)(c) of the Act is a consequence of the failure of the intermediary to exercise due diligence to make reasonable efforts [by itself, and to cause the users of its computer recourse] to not host, display,upload, modify, publish, translate, store, update or share any information that, knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or, in respect of any business of the Central Government, is identified as fake or false or misleading by such FCU of the Central Government as the Ministry may, by notification published in the official gazette specify.

Challenging these rules, satn-up comedian Kunal Kamra, Editors Guild of India approached the Bombay High Court. A dvision Bench of the High Court deliverd a split verdict, with Justice GS Patel striking down the amendment and Justice Neela Gokhale upholding the same.The thisd judge to whom the matter was reffered to, Justice Chandukar refused to saty the amendment.

The Bombay High Court on March 11 rejected the plea for stay promoting Kamra to move the apex court.

During the pendency of the petition before High Court, the Union government had agreed to notify the FCU. However, last week, with the third judge refusting to saty the amendment, the High Court allowed the centre to proceed with the notification of the FCU.

This led the petitioners to knock the doors of the Supreme Court seeking a stay on the FCU.

The Petitioners express their fear of the impugned Rule having a chilling effect on a citizen’s right to circulate information in the form of news, opinion, political satire, political parody, political sarcasm, political criticism, etc.

The argument is that as soon as the FCU of the Central Government flags any information to be offensive of the impugned Rule, the intermediary fearing a loss of its safe harbor or for any other reasons, commercial or otherwise, is compelled to take down the content.

Further the petitioner submits that the FCU was kept in abeyance for nearly 10 months during which the matterwas pending in the High Court and argue the Union has not demonstrated that any prejudice has been caused to it due to the absence of the FCU. They also submit that the union government already has an effective mechanism, the Press Information Bureau, to give alerts about fake social media posts.

The Petition is filedthrough AoR Prita Srikuma Iyer and drafted by Advocate Arti Raghavan stated By threatening intermediaries with the loss of their statutory safe harbour should they fail to take down content that the Central Government’s FCU identifies as fake, false or misleading, the Impugned Rule coerces intermediaries to execute a regime of selfinterested censorship of online content relating to the business of the Central Government. Intermediaries – as profit making, commercial enterprises – would naturally choose to avoid civil or criminal liability for third-party content, and would invariably remove it.

Kamra has further stated that the impact of the Rule is actually on the users as they are not given any prior notice before the information posted by them are taken down. There is no effective remedy for a user against the potenetial suspension or deactivation of a user’s account by the intermediary.

He further submitted that the entire amendment is overbroad, vague and without controlling guidelines. It does not even provide for an opportunity for the propounder of any information to defend its correctness, and the government becomes a judge in its own cause (hence another dimension of violation of principles of natural justice).

Seeking an immediate stay of the FCU, Kamra argued that the balance of convenience is in the petitioners’ favour and against the Union, as there exists less restrictive measures at the disposal of the Union.

The petition is set to be heared tomorrow by a bench comprising Chief Justice of India DY Chandrachud with Justices JB Pardiwala and Manoj Mishra.

The petition by the Editors Guild of India is filed through advocate Shadan Firasath.