New Delhi: Responding to a question raised by the Bombay high court bench, Solicitor General Tushar Mehta – appearing for the Union government – said that an intermediary (such as a social media platform) must either pull down or add a disclaimer to any information flagged as ‘fake’ by the Press Information Bureau’s Fact-Check Unit. The intermediary was not at liberty to do nothing about such posts, Mehta said, according to LiveLaw.A division bench of Justices G.S. Patel and Neela Gokhale is hearing petitions challenging Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, filed by comedian Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines and the New Broadcast and Digital Association.The rules empower the government to form fact-checking units which, through Rule 3, can identify news it deems is “fake, false or misleading information”. This is the Rule being challenged by the petitioners.The SG submitted said on Wednesday that the court was the final arbiter of the truth and not the government, and only the court could decide if the intermediary had lost safe harbor defined under section 79 of the IT Act. However, advocate Gautam Bhatia, appearing for the petitioner, said that intermediaries only have an “illusion” of choice once something is flagged by the government. Any other action, he argued, even adding a disclaimer, would leave the intermediary open to being sued.Senior advocate Nawroz Seervai, appearing for Kamra, said that ‘safe harbour’ was actually meant for users of social media platforms and not the intermediaries themselves. Earlier on Tuesday, the Bombay high court bench had questioned the Union government’s intentions behind the new guidelines. The court asked the government why this amendment was required at all, if the government was not going to ask intermediaries to abide by the fact-checking unit’s suggestions.“On one hand, there is a larger public interest and on the other hand there is a statute that has words that are ambiguous. Will it ever allow us to insert words of qualification that do not exist? How do we read information as fact and how can ‘shall’ (mentioned in the rule 3) be given a different colour to save the safe harbour provision? Is it permissible to interpret provisions like this?” the court had asked.The court is likely to complete arguments in the case on Friday.