In a significant development, the Supreme Court of India has ordered a stay on the implementation of the government’s newly announced Fact Check Unit (FCU), designed to scrutinize ‘fake’ and ‘misleading’ content about the government on social media platforms.
The apex court’s decision came in response to several petitions, including one from stand-up comedian Kunal Kamra, which sought an interim stay on the operation of Fact-Check Units established under the IT Amendment Rules.
Senior Advocate Darius Khambata, representing Kamra, argued that the FCU, notified just a day prior, represented a significant rewrite of existing rules, potentially endangering the principle of free speech by incentivizing content intermediaries to preemptively remove content to avoid falling afoul of the law.
Khambata highlighted the ambiguity and potential for misuse inherent in the newly amended IT rules, emphasizing the chilling effect they could have on free expression online.
The hearing in court also touched upon the high court proceedings following a split verdict and the implications of the new rules on the safe harbor protections traditionally afforded to intermediaries.
Advocates for the petitioners argued that the rules disproportionately focused on protecting the government’s narrative, potentially at the expense of public discourse and the dissemination of information, especially crucial during election periods. The absence of a malice clause and the broad, undefined mandate given to the FCU raised concerns about the potential for overreach and censorship.
The Solicitor General, representing the government, defended the establishment of the FCU, arguing that it was necessary to combat the spread of false information that could cause public harm or undermine government efforts. He emphasized that the rules were designed not to mandate the removal of flagged content but to ensure that such content is accompanied by a disclaimer if deemed false by the FCU.
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However, the Supreme Court, after deliberation, decided to stay the notification of the FCU, citing the need for a thorough examination of its constitutional implications, particularly concerning Article 19(1)(a), which guarantees the right to free speech.
The court set aside an earlier order declining interim relief and stayed the operation of the FCU until further notice, marking a crucial moment in the ongoing debate over digital rights and government regulation of online platforms in India.
