Update on the Challenge to the IT Rules’ Fact-Check Mechanism

On April 6, 2023, The Ministry of Electronics and Information Technology (MeITY), Government of India, notified the amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code), Rules, 2021 (hereinafter referred to as the “IT Rules”).

In this amendment, the due-diligence requirement of intermediaries under Rule 3(1)(b)(v) was amended to introduce a provision that would result in partial censorship of the media. According to this amendment, intermediaries are not allowed to host any such information relating to the Central Government, that is categorized as false, fake, or misleading by a fact-checking authority that is established by the Central Government itself.

On April 11, 2023, this amendment was challenged before the Bombay High Court on the ground that it is violative of Article 19(1)(a), as it fails to define what ‘fake, false, and misleading is’ and ‘any business of the Central Government’. He contended that the law fails to fall under any of the reasonable exceptions under Article 19(2) and has the potential to create a chilling effect on freedom of speech and expression. He further contended that the usage of broad terms such as fake, false, and misleading makes political satirists’ accounts prone to suspension, which would be violative of the fundamental right under Article 19(1)(g) (Freedom to trade and profession). A bench comprising Justice Gautam Patel and Justice Neela Gokhale in the Bombay High Court demanded the Central government show the reasons why such a clause was implemented, and the Central government was directed to file an affidavit for the same.

On April 24, 2023, the Bombay High Court commented that the IT Rules prima facie lack the necessary safeguards against satire, despite the Central government stating that satire will be exempted from the fact check under Rule 3(1)(b)(v). The Central government thereafter comfirmed on the 27^th of April that the provision under Rule 3(1)(b)(v) will not be notified until July 5, 2023. The Central Government was further directed to file a compilation of materials relied upon for the passage of the amendment on fact-checking by June 6, 2023. The next date of the hearing is June 8 for final arguments and directions.