The Bombay High Court will continue hearing the state's submissions in the case filed by Kunal Kamra and others on Tuesday. These petitions challenge the 2021 amendments to the IT Act, which provide for the formation of fact-check units.
Currently, the case is being heard by a tie-breaker judge, Justice AS Chandurkar. The state is now presenting its side, with Solicitor General Tushar Mehta making submissions.
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Solicitor General Tushar Mehta explained that if the fact-check unit identifies content as fake and the intermediary doesn't remove it, they can add a disclaimer to inform users. If neither action is taken, the aggrieved party can go to court, where the defence can argue the content's accuracy. Mehta emphasised that fact-checking is common in private companies and should be allowed by the government as well.
The government can only label content as fake or misleading about government business, but the final decision to act lies with the intermediary, he said.
The state submitted that users should have remedies for defamatory content. Due to safe harbour protections, individuals cannot easily sue intermediaries and often don't know the identity of the account holders. The grievance officer mechanism is meant to resolve complaints. If the officer decides not to act, they must justify this decision in court. The court, not the government, will determine the validity of the allegations. Balancing freedom of speech with others' rights is essential.
The Bombay High Court previously declined to halt the establishment of fact-checking units while it assessed the constitutionality of the amendments to the Information Technology Rules. The court stated there wasn't a conclusive argument against the amendment. This was a temporary order after a preliminary review of the issues raised in the case.
Earlier, a division bench had given a split verdict on this challenge on Jan. 31, adding complexity to the ongoing legal debate.
The petitioners had earlier argued that the amendment had a chilling effect on users' expression rights, prompting intermediaries to remove content to protect themselves, even if it didn't align with user interests.
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