The Delhi High Court has issued notice in the plea challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 that regulate digital news media. The plea filed by Foundation for Independent Journalism (owner of The Wire), Founder and Editor-in-chief of ‘The News Minute’ Dhanya Rajendran and Founding Editor of The Wire MK Venu, states that the Rules are ultra vires the parent Act, the Information Technology Act, 2000 (IT Act) since it deals with matters nowhere within the contemplation of the parent Act.
The Petition challenges the IT Rules, 2021 only insofar as they affect digital news portals, and is not with reference to ‘publishers of online curated content’, i.e., OTT media platforms or any other entities. The petitioners point out that the parent Act provides for offences of a specific kind committed in the form of electronic data related to cyber terrorism, child pornography and so on and under section 69A of the IT Act which is limited to a well-defined class of entities called ‘intermediaries’, and ‘Government agencies’, with no scope to dictate content to news media portals.
“The IT Rules, 2021 go far beyond the remit of the parent Act and seek to regulate digital news media by imposing a ‘Code of Ethics’, with all manner of stipulations as to ‘half-truths’, ‘good taste’, ‘decency’ etc., and vest the power of interference ultimately with the Central Government as the chief regulator, at the highest of three tiers,” the petition reads. The petition stated that the Rules bring back some elements of section 66A of the IT Act which were struck down by the Supreme Court in Shreya Singhal v. UOI (2015) for being vague, thus the rules also are in contravention of the said precedent.
Oversight and over reach
“The Rules introduce a special class of entities, obligate a Code of Ethics and further, obligate digital news portals and other entities to set up a ‘grievance’ redressal mechanism that deals with simply ‘any’ person’s complaint, wherein every which decision is subject to scrutiny of a higher regulatory tier, and non-compliance may be escalated to a still higher tier that is headed by a serving Central Government Officer and a Committee of other serving officers,” said the petitioners.
The petitioners also state that the question is not whether news portals should be subjected to a Code of Ethics but whether oversight by the government can be prescribed by the Rules when not contemplated by the parent Act. The petition underscores that there is no unlimited right of delegation, and that subordinate legislation cannot go beyond the object and the scope of the parent Act.
“Allowing a regulatory regime to be established in respect of the digital media industry is like allowing power looms to be regulated under the Electricity Act merely because they employ and use electric power in the course of their business; or allowing the practice and profession of plumbing to be regulated under the Water Act,” the petition states.
The petitioners pray that the impugned Rules be declared void an inoperative insofar as they define and apply to publishers of news and current affairs content and regulate publishers of news and current affairs content, on the ground of being ultra vires the parent Act, i.e. the IT Act, 2000.