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This month we deep-dive into the recent strike down of the government’s fact-checking unit (FCU) under the IT Rules; share updates on emerging competition issues; the recent smoking warning for OTT platforms; surrogate ads; and the long-on-the-horizon DPDP rules. Finally, take a look at some of the articles and pieces we found interesting over the last few weeks.
Deep dive: The Kunal Kamra case
What are FCUs?
FCUs are conceptualized under the amended Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules). They are empowered to identify any content concerning any ‘business of the Central Government’ and flag it as fake or false or misleading. Such content needs to be removed or flagged by social media intermediaries. The rules mandate intermediaries to make reasonable efforts to keep from hosting such content. Failure to comply would potentially jeopardize their default safe harbor protections under the Information Technology Act, 2000 (IT Act).
The government has been scrutinizing fake news for a long time, and this amendment is a clear reflection of that commitment (the now-withdrawn 2024 broadcasting bill is another). However, the amendment drew immediate concern from journalists, activists, and opposition parties, leading to….
…the Writ
Popular comedian Kunal Kamra and others, challenged the constitutionality of FCUs, before the Bombay High Court. A Division Bench (bench of two judges) delivered a split verdict first, then it was referred to a third judge. The deciding judge rendered his opinion striking down the 2023 amendment, and declared FCUs unconstitutional.
Quick look at the verdict
In a tie-breaker matter like this, the third judge only considers points of disagreement in the split verdict. Some of the key points highlighted are:
Transgressing Article 19: Freedom of speech can only be restricted under the grounds set out in Article 19(2) of the Constitution — such as defamation, public order, friendly relations with foreign states, and the security and integrity of India. Falsity of information isn’t a valid ground, so the state needn’t be involved in flagging information through its FCUs.
Violating principles of natural justice: Noting that the FCU’s responsibility was unilateral — since it would be appointed by the executive and be responsible for judging veracity of information about the executive and government — having courts to appeal would not be sufficient safeguard to ensure fairness. The judge also raised concerns about turning digital media into a separate class — since print media wouldn’t be in purview. Information about state governments would also be out of FCUs’ remit.
Fails to pass the proportionality test: The provisions regarding the FCU are vague and have a potential chilling effect on the free flow of information, especially without robust safeguards. There also seemed to be less restrictive alternatives to achieve the same objective.
After this verdict, the amended rule was formally declared unconstitutional.