Supreme Court to Examine Fact-Check Units for Social Media After Bombay HC Ruling

The Supreme Court agreed Tuesday to review a Bombay High Court judgment that struck down amendments to Information Technology Rules which would have allowed the Centre to establish fact-check units (FCUs) to identify fake content on social media platforms.

The controversial amendments would have required intermediaries to remove flagged content or risk losing their “safe harbour” protection, which shields platforms from legal liability for user-generated content.

Solicitor General Tushar Mehta, representing the Centre, clarified that the government’s intention is not to block social media platforms but to mitigate harm caused by false information. The government’s primary concern, Mehta argued, is protecting individuals, institutions, and national reputation from damage inflicted by fake posts circulating online.

Senior advocate Arvind Datar, opposing the Centre’s position, reminded the court that the government already possesses the authority to issue takedown orders, which social media platforms must comply with within 48 hours of notification.

Chief Justice Surya Kant, who led the bench alongside Justices R. Mahadevan and Joymalya Bagchi, expressed concern about the existing 48-hour window for content removal. He noted that even this relatively short period could permanently damage an individual’s reputation and dignity if false information remains accessible during that time.

“Look at the way some of these platforms are behaving. Some of the illustrations put on record by the government shows how dangerous these are. Such fake news can damage the reputation of the nation and institutions as well. We will examine all these issues,” the Chief Justice stated.

The bench has requested responses from the original petitioners who challenged the amendments before the Bombay High Court, including comedian Kunal Kamra, Editors Guild, News Broadcasters and Digital Association, and Association of Indian Magazines. These parties have four weeks to respond to the Centre’s appeal.

Despite Mehta’s request, the Supreme Court declined to stay the Bombay High Court judgment, which would have temporarily reinstated the FCUs while the appeal is heard. “There is no question of staying the judgment. It is better to hear the petition and decide the matter once for all,” the bench remarked, indicating their preference for a comprehensive resolution.

The case originated from a split verdict in the Bombay High Court where Justice Gautam Patel struck down the FCU provisions while Justice Neela Gokhale upheld them. The matter was subsequently referred to Justice A.S. Chandurkar (now a Supreme Court judge) who concurred with Justice Patel’s position against the amendments.

In its appeal to the Supreme Court, the Centre defended the amendments as compliant with Article 19 of the Constitution, arguing they actually “reinforce the right of the public to have access to true and accurate information about the functioning of central government.” The government further contended that Article 19, which guarantees freedom of speech and expression, “confers no right to engage in deliberate spreading of misinformation.”

The case highlights the tension between combating misinformation and protecting free speech in the digital age. Critics of the amendments worry about potential government overreach in determining what constitutes “fake” news, while supporters emphasize the need for mechanisms to counter deliberate misinformation campaigns that can cause public harm.

The Supreme Court’s eventual ruling will likely establish important precedents regarding the balance between government oversight of digital platforms and the constitutional protections for free expression in India’s rapidly evolving information landscape.