Madras HC restrains action against digital news platforms under IT Rules 2021

digital news platforms
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In some relief to digital news platforms including television news channels that are part of the Indian Broadcasting and Digital Foundation (IBDF), the Madras High Court has restrained the government from taking action against them till the case is heard next on January 25, 2022.

The IBDF, that has among its members several national and regional news channels, including those owned by the Sun TV network and many online, digital and OTT streaming platforms, had challenged the Rules 8-19 of Part III of the of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. Part III pertains to Code of Ethics and Procedure and Safeguards in Relation to Digital Media.

The court granted four weeks to the Centre to file its counter-affidavit in the matter, and clearly stated in its order, “In the meanwhile, the respondents are restrained from taking any coercive action against the petitioners without seeking permission of the Court.”

The matter will be heard next on January 25, 2022.

This story will be updated with the order copy once it becomes available.

Brief Background

SabrangIndia had reported earlier on how the Government of India had notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 in February this year. The Ministry of Electronics and Information Technology (MEITy) had at that time issued a press release saying it had come up with these guidelines “amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders” and that the code has “been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.” There were rules for both social media as well as digital and OTT platforms.

These were widely criticised as a means to legalise government scrutiny and control of news media, and this challenge to freedom of press led to the Rules being challenged in different courts.

In August 2021, the Bombay High Court had granted interim stay on the operation of Rule 9 of the Information Technology Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (2021 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. This was in connection with a writ petition filed by The Leaflet against the 2021 Rules, on the ground that they are ultra vires the IT Act. The PIL was filed by journalist Nikhil Wagle. The counsels for both petitioners argued that the 2021 Rules are ex facie draconian, arbitrary and patently ultra vires the provisions of the IT Act and the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution. Read more here.

The Internet Freedom Foundation (IFF) had analysed the various Rules and raised concerns about regulating content on OTT platforms like Netflix, Amazon Prime etc. and even given examples of the ongoing Tandav controversy where the Allahabad High Court has recently denied pre-arrest bail to Amazon executives. IFF saw this as a means to enable government censorship by way of a virtual backdoor entry in the rules, calling it “grossly unconstitutional”.

In September, the Madras High Court observed that certain rules of the IT 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 had at that time 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. Read more here.