The Madras High Court has observed that certain rules of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 impinge upon the freedom of press and pose a threat to democracy. While refraining from passing an independent order, the bench of Chief Justice Sanjib Banerjee and Justice PD Audikesavalu referred to the Bombay High Court’s order which has stayed the operation of sub-rules (1) and (3) of Rule 9 and observed that the same has pan-India effect.
The IT Rules, 2021 were challenged by Digital News Publishers Association which is a grouping of 13 leading media companies in the country — ABP Network Private Limited, Amar Ujala Limited, DB Corp Limited, Express Network Pvt Ltd, HT Digital Streams Ltd, IE Online Media Services Pvt Ltd, Jagran Prakashan Limited, Lokmat Media Private Limited, NDTV Convergence Limited, TV Today Network Limited, The Malayala Manorama Co (P) Ltd, Times Internet Limited and the Ushodaya Enterprises Private Limited.
The petitioner particularly challenged Rule 9 of the IT Rules. Rule 9 (3) provides for ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India as laid down in the Appendix to the Rules. It requires a publisher to have self-regulation as well as an oversight mechanism by the central government and also states that any publisher 2021 Rules, a publisher referred to in rule 8 who contravenes any law for the time being in force, shall also be liable for consequential action as provided in such law, which has so been contravened.
The court raised concerns that the said oversight mechanism by the central government could endanger democracy as it would rob the media of its independence.
“For understandable reasons, the petitioners are wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation. Prima facie, there is substance in the petitioners’ grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there,” the court said.
The court mainly relied upon the Bombay High Court order passed on August 14 which in effect stayed the operation of sub-rules (1) and (3) of Rule 9. The petitioners stressed upon the fact that the Bombay High Court’s order ought to have a pan-India effect yet, they have received notices seeking compliance of the said rules.
The court also observed that transfer petition has been filed before the Supreme Court by the Union government, however since no order has been passed in the matter, there is no legal impediment for this court to take up this petition.
The Bombay High Court order
In separate petitions filed by The Leaflet, Nikhil Wagle, senior journalist among others, the Bombay High Court granted interim stay on operation of sub-rules (1) and (3) of Rule 9 of the IT Rules for infringing Freedom of Speech and Expression as conferred by Article 19(1)(a) of the Constitution. The bench headed by Chief Justice Dipankar Datta and also comprising Justice GS Kulkarni also opined that prima facie Rule 9 is ultra vires the provisions of the Information Technology Act, 2000 (IT Act) being beyond the delegated power.
The court observed that Rule 9 suffers from two illegalities firstly, it imposes an obligation on the publishers of news and current affairs content and publishers of online curated content to observe the Code of Ethics under a completely different statutory regime alien to the IT Act, namely, by applying norms of Journalistic Conduct of the Press Council of India under the PC Act and Programme Code under Section 5 of the CTVN Act.
Challenge to Rules 3 and 7
Further, the petitioner has also challenged Rules 3 and 7 of the IT Rules, which have not been challenged before the Bombay High Court. The petitioner raised contentions against sub-clause (x) of Rule 3 (1) (b) that provides as follows:
“(x) is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person;”
The petitioners point out that along with the obligation imposed on the intermediary under Rule 3 (1) (c) to terminate the access or usage rights of users for non-compliance with the provisions of Rule 3 (1) (b), the provisions for grievance redressal have been made stringent and, finally, Rule 7 has been incorporated making an intermediary liable for punishment upon the intermediary failing to observe the said Rules. The court observed, “Any host of a website or platform would be an intermediary and an ordinary person may be denied access to the platform on the ipse dixit of the intermediary or on the intermediary’s apprehension that such intermediary may be proceeded against.”
The court then cited the Supreme Court judgement in Shreya Singhal v. UOI (2015) 5 SCC 1 wherein Section 79(3)(b) of the IT Act has been read down. Section 79 of the Information Technology Act, 2000 grants exemption from liability to intermediaries in certain cases. However, by virtue of Section 79 (2) (c), the exemption would not apply if the intermediary is found not to have observed “guidelines as the Central Government may prescribe in this behalf.”
Section 79(3)(b) of the IT Act states:
The provisions of sub-section (1) shall not apply if-
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
This provision was read by the apex court and observed that the “unlawful act” beyond what is laid down in Article 19(2) of the Constitution “obviously cannot form any part of Section 79”. The high court, taking reference from this point, observed that “there is substantial basis to the petitioners’ assertion that Article 19 (1) (a) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries.”
The court refrained from staying the operation of rules 3 and 7 of the IT Rules, however stated that if there any action taken in terms of the said rules in the interim, the same will abide by the court’s final decision in this petition. Also, the court did not pass any order in terms of Rule 9 since Bombay High Court has already stayed the operation of sub-rules (1) and (3) of Rule 9 and the Additional Solicitor-General appearing for the Union government accepted that the same has pan-India effect.
The matter will next be heard in last week of October as the transfer petitions before the Supreme Court are likely to be heard in early October.
The complete order may be read here: