Fact Check Unit Amendment Invalidated – Intermediaries In The Line

Introduction

On 20 September 2024, the Bombay High Court ('BHC') delivered a landmark judgment in Kunal Kamra and Ors. v. Union of India¹, striking down the amendment to Rule 3(1)(b)(v) ('Impugned Rule' or 'Rule') of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 ('2023 Amendment'), by a 2:1 majority. The Impugned Rule required intermediaries to exercise due diligence to inform users and make 'reasonable efforts' to prevent the publication or transmission of information, inter alia, that was identified as 'fake, false or misleading' by a Fact Check Unit (FCU) designated by the Central Government. Non-observance of such due diligence prescribed under the Information Technology Act, 2000 ('IT Act') and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ('IT Rules') may render 'safe harbour' immunity (provided under Section 79 of the IT Act) non-applicable and