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Flagging dangers of social media, SC to hear Centre plea on fact-check units

March 10, 2026 5 min read Polity & Governance Science & Technology GS Paper 2 (Polity Governance Fundamental Rights) and GS Paper 3 (Cybersecurity Technology)
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What Happened

  • The Supreme Court agreed to hear the Centre's plea challenging the Bombay High Court's September 2024 judgment that struck down the government's Fact-Check Unit (FCU) provisions in the IT Rules 2021
  • The Bombay HC had formally quashed the 2023 amendments to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, holding they violated Articles 14, 19(1)(a), 19(1)(g), and Section 79 of the IT Act
  • The SC noted that questions of "paramount importance" were involved and constituted a three-judge Bench to hear the matter
  • The SC declined to stay the Bombay HC judgment — meaning the FCU notification remains stayed and fact-check units cannot currently operate
  • The case has implications for the balance between regulating digital misinformation and protecting free speech online

Static Topic Bridges

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and Fact-Check Units

The IT Rules 2021 (Rule 3(1)(b)(v) as amended in 2023) allowed the Central Government to establish a Fact Checking Unit (FCU) to identify information about the government's business on social media as "fake, false, or misleading" — triggering the loss of safe harbour protection for platforms that did not remove such flagged content.

  • Original IT Rules 2021: Issued under Sections 79(2) and 87(2) of the IT Act, 2000; created a three-tier grievance redressal for social media intermediaries; classified significant social media intermediaries (SSMIs — those with 50 lakh+ registered users in India) with additional compliance duties
  • 2023 Amendment to Rule 3(1)(b)(v): Added that SSMIs must ensure no "fake or false or misleading" information about the Central Government's business is hosted — and established the FCU as the arbiter of what is fake
  • Section 79 (Safe Harbour): Intermediaries are protected from liability for third-party content if they (a) do not initiate transmission, (b) do not select recipients, and (c) observe due diligence guidelines. FCU flagging would trigger due diligence obligation to remove content — making non-removal a basis for safe harbour loss
  • Bombay HC ruling (September 2024): Struck down the FCU amendment as ultra vires Articles 14 (manifestly arbitrary — government as judge of its own cause), 19(1)(a) (chilling effect on free speech), 19(1)(g) (disproportionate impact on media), and Section 79 (exceeded the parent Act's scope)
  • Supreme Court's earlier stay (March 2024): SC had stayed the FCU notification even before the Bombay HC delivered its final verdict

Connection to this news: The SC's agreement to hear the Centre's appeal in March 2026 signals that the constitutional questions about government-run fact-checking of information about itself will receive definitive Supreme Court ruling — with major implications for platform regulation and press freedom.

Section 79 of the IT Act, 2000: Safe Harbour for Intermediaries

Section 79 is the foundational provision that exempts online intermediaries (platforms, social media companies, search engines) from liability for user-generated content, subject to conditions. It is modelled on US Communications Decency Act Section 230 but with important differences.

  • Section 79(1): An intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by it, if conditions in 79(2) and 79(3) are met
  • Section 79(2): Intermediary must not initiate transmission, select receivers, or modify the information; must observe "due diligence" prescribed by guidelines
  • Section 79(3): Safe harbour is lost if the intermediary: (a) has actual knowledge of unlawful content and fails to remove it, or (b) conspires, abets, or induces the unlawful act
  • "Actual knowledge" standard: Post-Shreya Singhal v. Union of India (2015), the SC held that "actual knowledge" means receipt of a court order or government direction under Section 79(3)(b) — not mere notice from private parties. This prevented abuse of notice-and-takedown by private actors to suppress speech
  • FCU as a Section 79(3)(b) mechanism: By designating government-identified "fake news" as a trigger for due diligence, the 2023 amendment effectively made the government a private arbiter of speech without judicial oversight — hence Bombay HC's Article 14 concern

Connection to this news: The SC's hearing of the Centre's plea will determine whether the government can constitutionally use Section 79's safe harbour mechanism as leverage to compel social media platforms to remove content the government itself classifies as misinformation.

Regulating Misinformation: Comparative and Constitutional Dimensions

The fact-check unit controversy sits at the intersection of free speech, platform accountability, and government overreach — a globally contested regulatory space.

  • Article 19(1)(a): Freedom of speech and expression — includes the right to receive and disseminate information; press freedom is derived from this
  • Article 19(2): Reasonable restrictions permissible: sovereignty, security, public order, decency, contempt of court, defamation, incitement — "misinformation about government business" is not an enumerated ground under Article 19(2)
  • Press Council of India Act, 1978: Regulates print media through the Press Council; no equivalent statutory body for digital news media (OTT/social media regulated under IT Rules 2021)
  • The Press and Registration of Periodicals Act, 2023: Replaced the Press and Registration of Books Act, 1867; modernises print media registration but does not regulate digital platforms
  • Comparative approaches: EU's Digital Services Act (DSA) requires platforms to assess systemic risks including disinformation — but does not allow governments to be sole arbiters of what is misinformation; independent fact-checkers and auditors are used instead

Connection to this news: The constitutional deficiency identified by the Bombay HC — and potentially to be examined by the SC — is structural: the 2023 FCU amendment made the government both the generator of information and the sole judge of what criticism about it is "fake", which is inherently incompatible with Article 19(1)(a)'s guarantee of free speech.

Key Facts & Data

  • IT Rules 2021: Issued under Sections 79(2) and 87(2) of the IT Act, 2000
  • Significant Social Media Intermediary threshold: 50 lakh (5 million) registered users in India
  • Bombay HC judgment (September 2024): Struck down FCU amendment as ultra vires Articles 14, 19(1)(a), 19(1)(g), and Section 79
  • SC stay on FCU notification: March 2024 (before final HC verdict)
  • Shreya Singhal v. Union of India (2015): SC struck down Section 66A of IT Act; defined "actual knowledge" under Section 79(3)
  • Article 19(2) grounds for speech restriction: sovereignty, security, public order, decency, morality, contempt of court, defamation, incitement — "fake government news" not listed
  • EU Digital Services Act (DSA): Requires platform risk assessment but uses independent fact-checkers, not government FCUs
  • Section 79(1): Safe harbour for intermediaries for third-party content — central provision at stake