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Deep Dive: Unpacking the Bombay High Court verdict on the Indian government’s proposed Fact Checking Unit

A lowdown on the split verdict delivered by the Bombay HC in petitions challenging the Indian government’s proposal to notify a state-appointed unit for fact-checking government-related information online.

On January 31st, the Bombay High Court bench, comprising Justices Neela Gokhale and G.S. Patel, delivered a split verdict in petitions challenging the Indian government’s proposal to notify a state-appointed unit to fact-check government-related information online. This key free-speech case will now be heard by a third judge of the High Court.  Justice Gokhale upheld the fact check unit proposal as constitutionally permissible in her 92-page judgement, while Justice Patel’s 148-page judgement ruled in favour of the petitioners, and moved to strike down the proposal on various constitutional grounds.  The fact check unit proposal was introduced through an amendment to India’s IT Rules, 2021, which are enacted under Section 79 of India’s Information and Technology Act, 2000 (IT Act), which ensures safe harbour protections for intermediaries (including social media platforms), provided that they comply with certain due diligence provisions. Section 69A  of the Act empowers the government to block public access to information online on various grounds. The main petitioners are comedian and satirist Kunal Kamra, the Editors Guild of India, and the Association of India Magazines, with interim applications filed by the News Broadcasters & Digital Association. Do platforms risk losing safe harbour protections for not removing fact-checked information? The petitioners argued that platforms will have to remove content flagged by this unit to avoid losing safe harbour protections, equating this to censorship with serious consequences for online free speech. The Indian government, the respondent in the case, argued that the unit only sought to curb government-related misinformation online…

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