Fact-Check Units: Unchecked Fact Checkers

• Published date: 03 April 2024
• Law Firm: Majmudar & Partners
• Author: Sinjini Majumdar and Bhavya Solanki

Introduction

In the case of Kunal Kamra v. Union of India, on January 31, 2024, the petitioners challenged the constitutional validity of the 2023 amendment (the "2023 Amendment") made to Rule 3(1)(b)(v) (pertaining to due diligence by an intermediary) (the "Impugned Rule") of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the "Intermediary Rules"). This update discusses the judgment and analyses its ramifications.

The Intermediary Rules

The Information Technology Act, 2000 (the "IT Act") defines an "intermediary" as any person that, on behalf of another, receives, stores, transmits, or provides services related to electronic records. This includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online auction sites, online marketplaces, and cyber cafes.

Following the 2023 Amendment, the Impugned Rule requires intermediaries, including social media intermediaries, significant social media intermediaries, and online gaming intermediaries, to make reasonable efforts by themselves, and to ensure that users of their computer resources do not host, display, upload, modify, publish, transmit, store, update, or share any information that, among other things, knowingly and intentionally communicates misinformation or information that is patently false, untrue, or misleading in nature, or, in respect of any business of the Central Government, is identified as fake or false or misleading by a designated fact-check unit ("FCU") of the Central Government. In other words, the 2023 Amendment grants the government, the authority to institute a FCU tasked with identifying any fake, false, or misleading information concerning its businesses across online platforms.

Further, as per Section 79(1) and (2) (exemption from liability of intermediary in certain cases) of the IT Act, read with Rule 7 (non-observance of Rules) of the Intermediary Rules, if an intermediary fails to observe the rules, it loses its immunity from liability for any third-party content made available or hosted by the intermediary ("Safe Harbor"), and is liable for punishment under any law for the time being in force including the provisions of the IT Act and the Indian Penal Code, 1860.

The ruling

Justice GS Patel's judgment invalidated the 2023 Amendment, stating that it goes against Article 14 (equality before law), Article 19(1)(a) (protection of freedom of speech), Article 19(2) (restrictions on freedom of speech), Article 19(1)(g) (right to practice any profession, etc.)...