Jahanvi Agarwal
Justice Gautam Patel of the Bombay High Court has struck down the 2023 Information Technology Rules Amendment, which introduced a Fact Check Unit (FCU), questioning the government’s entitlement to more protection from deep fakes than celebrities or cricketers.
In response to petitions challenging Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, the Judge, in a split verdict, emphasized the inadmissibility of class legislation favoring the government in the context of deepfakes.
Notably, the amended rule created an FCU tasked with identifying and ordering the removal of fake, false, and misleading content concerning the Central Government on social media. Justice Patel voiced skepticism about the need for the government’s extra protection, given its significant influence and the inherent authenticity of its voice.
He remarked, “If there is one entity that does not need such protection, it is the government. It already has an ‘authentic’ voice; possibly, the most authentic voice. And it has so far been unafraid to use it.” The judgment underscored the circular reasoning behind the assumption that government-related information deserves extra safeguarding and raised questions about fact-checking mechanisms.
Justice Patel emphasized that online content should not be treated differently from print material, which is not subjected to FCU scrutiny. Furthermore, Justice Patel expressed concerns about the accountability of the FCU, highlighting the need to question the fact-checkers themselves.
He quoted, “Who, after all, is to fact check the fact checker? Who is to say if the view of the FCU is fake, false or misleading? Quis custodiet ipsos custodes?”
The judgment advocated for a robust defence against any attempt to curtail fundamental rights, emphasizing that any such attempt must conform strictly to the permissible limits within Articles 19(2) to 19(6) of the Constitution.
Case Name: Kunal Kamra & Ors. v. Union of India
Diary Number: 9792/2023
Bench: Justice Gautam Patel