In a pivotal decision, the Supreme Court has decided to stay the implementation of Fact Check Units (FCUs) under the 2023 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules (IT Amendment Rules 2023). 

This move comes in response to petitions challenging the constitutionality of the rules, highlighting concerns over their potential impact on free speech and expression.

The IT Amendment Rules of 2023 empower the Ministry of Electronics and Information Technology to establish FCUs tasked with identifying and tagging online content deemed false or fake, particularly concerning the activities of the Central government. However, the recent notification of the FCU under the Press Information Bureau by the Union Information and Broadcasting Ministry has sparked legal contention.

A bench led by Chief Justice of India DY Chandrachud, along with Justices JB Pardiwala and Manoj Misra, acknowledged the gravity of the constitutional questions raised by the challenge to the IT Rules.

Recognizing the fundamental importance of free speech and expression enshrined in Article 19(1)(a) of the Indian Constitution, the Court deemed it imperative for the Bombay High Court to conduct a thorough analysis of the rules' implications.

The petitions before the Supreme Court, filed by various parties including stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines, argue that the FCU regime could potentially lead to censorship of online content related to the Central government. 

They contend that granting the government authority to determine the veracity of information online poses a threat to citizens' right to information and undermines the principle of a free and open marketplace of ideas.

Senior Advocate Darius Khambata, representing Kunal Kamra, raised concerns about the chilling effect the rules could have on intermediaries, who may opt to remove content flagged by FCUs to avoid legal repercussions. Khambata emphasized that the rules' binary approach to fake news fails to account for the complexities of information dissemination and the role of differing perspectives in public discourse.

Similarly, Advocate Shadan Farasat, speaking on behalf of the Editors Guild of India, highlighted the inherent conflict of interest in allowing the government to dictate the truthfulness of information, particularly during sensitive periods such as elections. He argued that the FCU's existence could stifle investigative journalism and undermine the diversity of voices essential for a vibrant democracy.

In response, Solicitor General Tushar Mehta defended the government's rationale behind the rules, citing the need to combat the spread of false information, especially in times of crisis such as the COVID-19 pandemic. Mehta clarified that the regulations require intermediaries to display disclaimers on content flagged by FCUs rather than mandating its removal, with legal recourse available for disputing the accuracy of such determinations.

The Supreme Court's decision to stay the formation of FCUs pending further examination by the Bombay High Court underscores the significance of the constitutional issues at stake.

Case: Kunal Kamra vs. Union of India.