The Centre on Wednesday (7 June) informed the Bombay High Court that they will not be setting up a fact-check unit (FCU) through 10 July.
This comes as a response to a petition filed by comedian Kunal Kamra, which challenges the constitutional validity of the new rule under the Information Technology Act.
The rule aims to create an FCU that identifies any fake or false online content that is related to the Central government.
The FCU will apply to intermediaries, including social media platforms, via Intermediary Guidelines and Digital Media Ethics Code.
Initially, Anil Singh, the additional solicitor general, had stated in April that the FCU would not be established until 5 July.
During a recent hearing, the high court was informed that two additional petitions regarding the FCU have been filed by the Editors Guild of India and the Association of Indian Magazines. Both organisations criticise the FCU as being arbitrary and unconstitutional.
The court will be hearing all three petitions on 6 and 7 July, and the Centre will be seeking a reply to the new petitions as well.
The Centre's fresh affidavit explains that the government is not meant to be the final arbiter or decision-maker when it comes to identifying whether online content is patently untrue, false, or misleading.
The affidavit states that the obligation first rests on intermediaries to exercise due diligence, based on identification by the FCU. If the intermediary fails to do so, however, the final arbiter will be the court of law in determining whether the content is false, intentionally posted, and needs to be removed.
Intermediaries risk losing 'safe harbour' protection under the IT Act from liability of prosecution over what third parties post on their platforms if content flagged by the FCU is not checked for veracity.
If the content is found to be untrue, there is no consequence except for making a widely disseminated public announcement that the content is either fake or false.
The new rule makes the intermediary preliminarily responsible for checking what is stated, without any obligation to either take it down or block it.
Essentially, the intermediary would not be permitted to use the protective shield of Section 79 of the IT Act.
The Centre's reply also explains that the rule is meant to protect the fundamental rights and interests of those who receive untrue information.
The rule aims to harmoniously balance the interests of both content creators and recipients.
Recipients are allowed to approach the grievance redressal mechanism of an intermediary first and the court later to have such content removed.
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