Need To Balance Fighting Fake News, Shielding Freedom Of Speech: Top Court

The Supreme Court today said there is a need to strike a balance between protecting the country from fake online content and safeguarding the fundamental right to free speech. The court made this observation as the Centre defended its 2023 amendment to Information Technology (IT) Rules.

Observing that this is an important issue which needs to be looked at by the top court, a bench headed by Chief Justice of India Surya Kant issued a notice on the Centre's petitions challenging the Bombay High Court's 2024 judgment that struck down provisions in the law which empowered the government to establish Fact Check Units.

The court turned down Solicitor General of India Tushar Mehta's request to stay the High Court judgment.

According to the Centre's IT Rules, social media intermediaries will lose the 'safe harbour' protection if they fail to take down content flagged as fake by the Centre's Fact Check Units.

Satirist Kunal Kamra, the Editors Guild of India, the News Broadcasters and Digital Association and the Association of Indian Magazines challenged the Rules in the Bombay High Court.

In January 2024, a division bench of Justice Gautam Patel and Justice Dr Neela Gokhale delivered a split verdict, with the former striking down the rules and the latter upholding them with some changes. The matter was referred to a third judge, Justice AS Chandurkar, who agreed with Justice Patel's view. "I am of the opinion that the amendments are violative of Article 14 and Article 19 of the Constitution of India," Justice Atul Chandurkar said. Justice Chandurkar said the amendments also violate Article 21 and do not satisfy the "test of proportionality".

Justice Patel held that the proposed fact-check units under the 2023 new Rules infringed upon fundamental rights under Article 19(1)(g) due to the differential treatment between online and print content.

Article 19(1)(g) of the Constitution deals with freedom to practice one's profession or business, and Article 19 (6) enumerates the nature of restrictions that can be imposed.

The Centre has challenged the High Court order in the Supreme Court. Appearing for the Centre, Solicitor General Mehta said the new rules were not intended to curb humour, satire, or criticism. "There is no intention under the statute (Information Technology Act) or the Rules to curb any humour, satire, expression of view, critical expression of view or criticism," he told the court.

The Chief Justice expressed concern over unchecked social media posts about the Army and the police. "Look at the way some of these platforms are behaving... how dangerous are these... such fake news can damage the reputation of the institution as well. Clear demarcated guidelines are needed," the Chief Justice said. He added that even the Army and police are not spared from fake news. When the bench agreed to issue a notice, the Solicitor General sought a stay. "No, not at this stage. We will decide the main matter itself," the Chief Justice said.