The recently adopted Information Technology Rules (Guidelines for Intermediaries and Code of Ethics for Digital Media), 2021 (“IT rules, 2021“) found itself in troubled waters with various Indian high courts. After years of discussion and debate, the Indian government’s Department of Electronics and Information Technology had notified the 2021 IT rules to monitor digital media platforms of social media. IT rules, 2021, among others, aim to serve a dual purpose: (1) to increase the accountability of social media platforms (such as Facebook, Instagram, Twitter, etc.); and (2) empower social media users by establishing a three-tier redress mechanism for effective grievance resolution (see our previous article on IT Rules, 2021 below1). However, compliance with the provisions of the IT rules of 2021 is being questioned by digital media platforms as part of an attempt to restrict freedom of speech and expression and various petitions have been filed across India for challenge the legal validity of the IT rules of 2021.
Challenge before the Bombay High Court
In an application to the Bombay High Court in the matter of
Agij Promotion of Nineteenonea Media Pvt. Ltd. & Ors., V Union of India [W.P. (L.) No. 14172 of 2021], the IT rules of 2021 were challenged on the grounds that the IT rules of 2021 are “ex facie draconian, arbitrary and clearly ultra vires“the provisions of the Information Technology Act 2000 (“IT law“) and the provisions of Articles 14, 19 (1) (a) and 19 (1) (g) of the Indian Constitution, which guarantee the fundamental rights of applicants.
The Hon’ble High Court voids its order dated August 14, 20212, while evaluating the constitutionality of certain provisions of the IT Regulations of 2021, observed that rule 9 of the IT Regulations of 20213 (which provide for a three-tier structure to deal with grievances against publishers), at first glance, suffers from two illegalities first, “it requires publishers of news and current affairs content and publishers of content organized online to observe the Code of Ethics under a statutory regime totally different from the IT law, namely, by applying the journalistic standards of conduct of the Press Council of India under the Press Council and Program Code Act 1978 under Section 5 of the Cable Television (Network) Regulatory Act 1995. Furthermore, Article 87 does not confer any power on the central government to make rules providing for such provisions under clauses (z) and (zg) of subsection (2). “ The Court suspended Rule 9 (1) and Rule 9 (3) of the IT Rules of 2021 and observed that Rule 9 of the IT Rules of 2021 appears to be ultra vires, with the provisions of the IT Law being in effect. -beyond the delegated power and infringes the constitutional guarantee of freedom of speech and expression conferred by Article 19 (1) (a).
Challenge before the High Court of Madras
The public interest dispute was brought by Carnatic musician TM Krishna and a second petition was filed by the Digital News Publishers Association (DNPA), made up of thirteen media outlets, as well as journalist Mukund Padmanabhan.4in which the petitioners argued that the IT rules of 2021 are ultra vires, among others, Articles 14 and 19 of the Constitution of India.
In particular, the petitioners referred to Rule 9 of the IT Rules 2021, which relates to publishers’ compliance with and adherence to the Code of Ethics in India as outlined in the Annex to the IT Rules of 2021.. The petitioners argued that they are “beware of the central government oversight mechanism indicated as the last level of the regulatory process“and also pointed out that in addition to the obligation imposed on the intermediary under Rule 3 (1) (c) of the IT rules, 2021 to terminate the rights of access or use of users for not -compliance with the provisions of Rule 3 (1) (b) thereof, the provisions relating to the resolution of grievances have been made strict. In addition, Rule 7 of the IT Rules of 2021 has been incorporated, making an intermediary liable sanctions in the event of non-compliance with the IT Regulations of 2021 by the intermediary.
Order: The Court of Honor empties its order dated September 16, 2021, among others, considered that:
- At first glance, the petitioners’ grievance is based on the fact that a mechanism for government oversight of the media might deprive the media of their independence and that the fourth pillar, so to speak, of democracy might not be at all the.
- The Bombay High Court order suspending the application of Rule 9 (1) and Rule 9 (3) of the Computer Rules, 2021 “should have a pan-Indian effect“and the Court noted that the additional Attorney General, representing the Union, accepted that the order issued by the Bombay High Court would have pan-Indian effect.
- The other ground for immediate challenge, which is not covered by the Bombay High Court order, concerns rules 3 and 7 of the IT Regulation 2021. In light of the Supreme Court ruling5, in which Article 79 (3) (b) of the IT Law was read and it found that illegal acts going beyond what is provided for in Article 19 (2) of the Constitution “obviously cannot be part of article 79“of the Computer Law, there is a substantial basis for the claimants’ contention that Article 19 (1) (a) of the Constitution may be violated in the manner in which the rules can be coercively applied to intermediaries.
It is interesting to note that the two Hautes Cours voted for freedom of expression. The Bombay High Court suspended certain provisions of the widely discussed and controversial 2021 IT Rules, including the requirement for digital media to adhere to a “Code of Ethics” prescribed under the 2021 IT Rules. declared that the indeterminate and broad terms of IT Regulation 2021 lead to a “dissuasive effect as the right to freedom of speech and expression of writers / editors / publishers“as they can be”transported“under the IT Rules of 2021 for anything if the committee so wishes. However, the Bombay High Court did not uphold rules 7, 14 and 16 of the IT Rules of 2021.
The Madras High Court, in its ordinance (as detailed above), observed that the central government oversight mechanism as provided for in the last level of the Code of Ethics mechanism (as stipulated in Rule 9 (3 ) IT rules, 2021) is likely to jeopardize the independence of the media. The Madras High Court, after considering the applicants’ complaints, also held that “if there is any action taken under rule 3 of said rules read together with rule 7 thereof during the interregnum, he will comply with the result of the petitions and other ordinances hereof.“. The Madras High Court has agreed that there is”substantial basis“to the petitioners’ claim that Article 19 (1) (a) of the Constitution can be infringed due to the way in which IT rules 2021 can be coercively applied to intermediaries.
The impact of the aforementioned recent High Courts ordinances is significant and highlights the struggle for government control and its resistance by the editors. The case is now set for a new hearing on October 27, 2021, after the Madras High Court was informed that the Supreme Court of India is due to consider the transfer request preferred by the central government in the first week. October 2021 to transfer all pending IT rule cases, 2021 to the Supreme Court. It is likely that the Supreme Court will be able to accept the petition and rule on all pending challenges against the IT rules of 2021.
2 Agij Promotion of Nineteenonea Media Pvt. Ltd. & Ors. vs. Union of India [W.P. (L.)
No. 14172 of 2021] and Nikhil Mangesh Wagle vs Union of India [PIL (L.) No. 14204 of 2021].
3 Rule 9 (1) and Rule 9 (3) of IT Regulation 2021 state:
“Rule 9 (1) Observation and adherence to the Code- (1) A publisher referred to in rule 8 must observe and adhere to the Code of ethics set out in the appendix attached to this regulation.
Rule 9 (3) To ensure compliance with and adherence to the Code of Ethics by publishers operating in the territory of India, and to respond to complaints made against publishers under this Part, there shall be a three-level structure such as: (a) Level I – Self-regulation by publishers; (b) Level II – Self-regulation by the self-regulatory bodies of publishers; (c) Level III – Mechanism of control by the central government “.
4 The question of Association of digital news publishers and Mukund Padmanabhan vs. Union of India and other related matters [W.P.Nos.13055 and 12515 of
5 Shreya Singhal v. Indian Union ((2015) 5 SCC 1).
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