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Madras HC to Wait for Bombay HC Call in Fact Check Unit Challenge Before Deciding on Similar Case Down South

Filed by the All India Dravida Munnetra Kazhagam’s IT Joint Secrary R. Nirmal Kumar earlier this month, the Madras High Court challenge argued that Tamil Nadu’s proposed unit hurts the online free speech rights of opposition parties and citizens.

The Madras High Court will decide on challenges against Tamil Nadu’s proposed fact check unit after the Bombay High Court delivers its verdict in a challenge against a similar unit proposed by the Indian government, The Hindu reported yesterday. The Bombay High Court will likely pronounce its verdict on December 1st.

Reports suggest that the Tamil Nadu government’s unit will respond to complaints about government-related fake news, misinformation, disinformation, and hate speech on media platforms (like X/Twitter, Facebook), although it has suo motu powers too. If the content is ‘fake’, the unit will “place” fact-checked information across platforms.

Filed by the All India Dravida Munnetra Kazhagam’s IT Joint Secretary R. Nirmal Kumar earlier this month, the Madras High Court challenge argued that Tamil Nadu’s proposed unit hurts the online free speech rights of opposition parties and citizens. Kumar additionally sought a stay order against the unit’s Mission Director continuing his work. The case will be heard next on December 6th.

Why it matters: The southern state’s proposal comes hot off the heels of multiple attempts across India to regulate government-related ‘misinformation’ online through state-appointed fact check units, the first of which was proposed by the Indian government earlier this year. That unit was immediately challenged by satirist Kunal Kamra (and others) before the Bombay High Court on free speech grounds, with his lawyers adding that the unit would give the government powers to become the judge, jury, and executioner of what constitutes the ‘truth’ online. Such broad powers could lead to censorship of online speech, an issue of particular concern in the run-up to the 2024 general elections. The Bombay High Court’s verdict may shine light on the legitimacy of similar units, whether in Tamil Nadu, or Karnataka. On a separate note: despite party differences, restricting free speech online in the guise of misinformation regulation appears to increasingly be a non-partisan issue for governments across India.

What happened in court?: Appearing for Kumar, advocate Vijay Narayan argued that the Tamil Nadu government had initially announced in the state assembly that they would set up a “social media cell”, The Hindu reported. By creating a fact check unit, it breached the Indian government’s exclusive powers to do so, under the Information and Technology Act, 2000, and further delegated rules. Echoing the sentiments in the Kamra case up north, Narayan added that Tamil Nadu’s fact check unit may also be used to censor government criticism online. Narayan also questioned the allegedly largely closed-door recruiting process for the unit.

Representing the Tamil Nadu government, Senior Advocate P.S. Raman and Additional Advocate General J. Ravindran said the unit was needed to counter fake news spreading on social media, including the “mass killing” of Bihari migrants in Tamil Nadu.

Keeping up with the legal arguments against the Indian government’s unit: We’ve reported extensively on the fact check amendment, the challenges to it, and the in-court proceedings. Here’s a list of our top reads:

  • April 2023: Our breakdown of the government’s plans to fact-check government-related information online. [Read]
  • April 2023: The amendment faces its first legal challenge with political satirist Kunal Kamra’s Bombay High Court petition. [Read]
  • June 2023: The IT Ministry informs the Bombay High Court that the amendment won’t go into force before July 5th, 2023. [Read] The IT Ministry later extends the stay until July 10th. [Read]
  • June 2023: The Association of Indian Magazines files its challenge against the amendment at the Bombay High Court. [Read]
  • June 2023: The Editors Guild of India files its challenge against the amendment at the Bombay High Court. [Read]
  • June 2023: Government defends fact check amendment in affidavit filed before Bombay High Court, says fake speech adversely impacts society and requires regulation. [Read]
  • The hearings:
    • July 2023: Senior Advocate Navroz Seervai appearing for Kunal Kamra questions the government’s ‘nanny state’ approach to dealing with misinformation. [Read]
    • July 2023: Justice G.S. Patel raises questions on the authority being conferred to the fact check unit. [Read]
    • July 2023: Justice G.S. Patel asks whether the offline printed versions of online information will also be censored. [Read]
    • July 2023: Petitioners critique the lack of definitions in the amendment, including of ‘fake’, ‘false’, ‘misleading’, and ‘business of the Central government’. [Read]
    • July 2023: Petitioners argue that the fact check amendment violates proportionality tests, which measure infringements on fundamental rights like free speech. [Read]
    • July 2023: Petitioners critique the multiple free speech concerns raised by the fact check amendment, including on dissent, journalism, and more. [Read]
    • September 2023: Solicitor General Tushar Mehta opens the government’s defence of the provision, argues that it is ultimately the courts who decide on the validity of an intermediary’s decision on a fact check notice. [Read]
    • September 2023: Petitioners respond to Mehta’s defence, arguing that it implies that choosing to keep up content will lead to loss of safe harbour. [Read]

Note: this piece was updated at 2:27 pm on 28/11/2023 to correct a typographical error.

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I'm interested in stories that explore how countries use the law to govern technology—and what this tells us about how they perceive tech and its impacts on society. To chat, for feedback, or to leave a tip: aarathi@medianama.com

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