Bombay HC struck down the 2023 amendment to Rule 3 of the IT Rules mandating establishment of Fact Checking Units (FCU)

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Verdict has been delivered in the Kunal Kamra vs Union of India case.

Background

The 2023 amendment [(3(1)(b)(v)] to IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 empowered the Government to identify fake news pertaining to its business on social media platforms through FCU.
- Such news was to be flagged and taken down by the intermediary.
- Failure to do so would subject the intermediaries to a legal action and losing their safe harbor (legal immunity against third-party consent).
In 2023, Supreme Court stayed the Centre’s notification establishing FCU in Press Information Bureau (PIB).

Rules are ultra vires (unconstitutional) or beyond the powers of the IT Act, 2000.
Violate the Principles of Natural Justice and Fundamental Rights under Articles:
- 14 [Equality before Law]
- 19 (1) (a) [Freedom of Speech and Expression]
- 19 (1) (g) [Freedom to practice any profession]
- 21 [Right to Life and Personal Liberty].
Vague, does not clearly define fake or misleading news.
- Also, in the absence of "right to the truth," the State is not responsible for providing citizens with only accurate information determined by the FCU.
Fail to satisfy the test of proportionality.

It requires that the measure taken to restrict a fundamental right should satisfy:
- Legitimacy: Evaluates if the law serves a valid government objective.
- Suitability: Checks if the law effectively addresses that objective.
- Necessity: Considers whether the law is essential, or if less restrictive alternatives are available.
- Balancing: Weighs the benefits of the law against the rights it may infringe upon.