The recently enacted Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules, 2021") has run into troubled waters with various High Courts of India. After years of discussions and debates, the Ministry of Electronics and Information Technology, Government of India had notified the IT Rules, 2021 for monitoring social media digital media platforms. The IT Rules, 2021, inter alia, aim to serve a dual-purpose: (1) increasing the accountability of the social media platforms (such as Facebook, Instagram, Twitter etc.); and (2) empowering the users of social media by establishing a three-tier redressal mechanism for efficient grievance resolution (refer to our previous article on IT Rules, 2021 below1). However, compliance with the provisions of the IT Rules, 2021 is being questioned by digital media platforms as an attempt to restrict the freedom of speech and expression and various petitions have been filed across India challenging the legal validity of the IT Rules, 2021.
Challenge before the High Court of Bombay
In a petition before the High Court of Bombay in the matter of Agij Promotion of Nineteenonea Media Pvt. Ltd. & Ors., vs. Union of India [W.P. (L.) No. 14172 of 2021], the IT Rules, 2021 were challenged on the ground that the IT Rules, 2021 are "ex facie draconian, arbitrary and patently ultra vires" the provisions of the Information Technology Act, 2000 ("IT Act") and the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the Indian Constitution, which guarantees fundamental rights to the petitioners.
The Hon'ble High Court vide its order dated August 14, 20212, while assessing the constitutional validity of certain provisions of the IT Rules, 2021, observed that Rule 9 of the IT Rules, 20213 (which provide for a three-tier structure for addressing the grievances made in relation to publishers), prima facie, 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 Press Council Act, 1978 and Programme Code under Section 5 of the Cable TV (Network) Regulation Act, 1995. Further, Section 87 does not confer any power on the Central Government to frame rules contemplating such provisions under clauses (z) and (zg) of sub section (2)." The Court stayed Rule 9(1) and Rule 9(3) of the IT Rules, 2021 and observed that Rule 9 of the IT Rules, 2021 appears to be ultra vires the provisions of the IT Act being beyond the delegated power and infringing the constitutional guarantee of Freedom of Speech and Expression as conferred by Article 19(1)(a).
Challenge before the High Court of Madras
The public interest litigation was moved by the Carnatic musician TM Krishna and a second petition was filed by the Digital News Publishers Association (DNPA), comprising of thirteen media outlets, as well as journalist Mukund Padmanabhan4 wherein the petitioners contended that the IT Rules, 2021 are ultra vires, inter alia, to Articles 14 and 19 of the Constitution of India.
In particular, the petitioners referred to Rule 9 of the IT Rules, 2021 which pertains to observance and adherence to the Code of Ethics by publishers in India as laid down in the Appendix to the IT Rules, 2021. The petitioners contended that they are "wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation" and also pointed out that along with the obligation imposed on the intermediary under Rule 3(1)(c) of IT Rules, 2021 to terminate the access or usage rights of users for non-compliance with the provisions of Rule 3(1)(b) thereof, the provisions for grievance redressal have been made stringent. Furthermore, Rule 7 of the IT Rules, 2021 has been incorporated making an intermediary liable for punishment upon the intermediary failing to observe the IT Rules, 2021.
Order: The Hon'ble Court vide its order dated September 16, 2021, inter alia, held that:
- 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 order passed by the High Court of Bombay staying the operation of Rule 9(1) and Rule 9(3) of the IT Rules, 2021 "ought to have a pan-India effect" and the Court noted that the Additional Solicitor-General, representing the Union, accepted that the order passed by the High Court of Bombay would have pan-India effect.
- The other ground of immediate challenge, which is not covered by the order of the High Court of Bombay, pertains to Rules 3 and 7 of the IT Rules, 2021. In light of the Supreme Court judgment5, wherein Section 79(3)(b) of the IT Act has been read down and it has observed therein that unlawful acts beyond what is laid down in Article 19(2) of the Constitution "obviously cannot form any part of Section 79" of the IT Act, 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.
It is interesting that both the High Courts voted for the freedom of speech. The Bombay High Court stayed certain provisions of the widely discussed and controversial IT Rules, 2021 including the requirement of the digital news media outlets to adhere to a "Code of Ethics" prescribed under the IT Rules, 2021. The Court was vocal that the indeterminate and wide terms of the IT Rules, 2021 bring about a "chilling effect qua the right to freedom of speech and expression of writer/editors/publishers" as they can be "hauled" up under the IT Rules, 2021 for anything if the committee so wishes. However, the Bombay High Court did not stay Rules 7, 14 and 16 of the IT Rules, 2021.
The Madras High Court, through its order (as detailed above), observed that the oversight mechanism of the Central Government as provided in the final tier of the Code of Ethics mechanism (as stipulated under Rule 9(3) of the IT Rules, 2021) has the potential to jeopardize the independence of the media. The Madras High Court after considering the grievances of the petitioners also held that "if there is any action taken in terms of Rule 3 of the said Rules read with Rule 7 thereof during the interregnum, it will abide by the result of the petitions and further orders herein". The Madras High Court agreed that there is "substantial basis" to the petitioners' assertion that Article 19(1)(a) of the Constitution may be infringed based on how the IT Rules, 2021 may be coercively applied to intermediaries.
The impact of the above recent orders of the High Courts is significant and highlights the tussle for control by the government and its resistance by the publishers. The matter is now listed for further hearing on October 27, 2021, after the Madras High Court was informed that the Supreme Court of India is due to take up the transfer petition preferred by the central government in the first week of October 2021 to transfer all the pending petitions against the IT Rules, 2021 to the Supreme Court. It is likely that the Supreme Court may accept the petition and adjudicate all the pending challenges against the IT Rules, 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 the IT Rules, 2021 stipulate:
"Rule 9(1) Observance and adherence to the Code-(1) A publisher referred to in rule 8 shall observe and adhere to the Code of Ethics laid down in the Appendix annexed to these rules.
Rule 9(3) For ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India, and for addressing the grievances made in relation to publishers under this Part, there shall be a three-tier structure as under— (a) Level I - Self-regulation by the publishers; (b) Level II – Self-regulation by the self-regulating bodies of the publishers; (c) Level III - Oversight mechanism by the Central Government".
4 The matter of Digital News Publishers Association and Mukund Padmanabhan vs. Union of India and Other Connected Matters [W.P.Nos.13055 and 12515 of 2021].
5 Shreya Singhal v. Union of India ((2015) 5 SCC 1).
LexCounsel provides this e-update on a complimentary basis solely for informational purposes. It is not intended to constitute, and should not be taken as, legal advice, or a communication intended to solicit or establish any attorney-client relationship between LexCounsel and the reader(s). LexCounsel shall not have any obligations or liabilities towards any acts or omission of any reader(s) consequent to any information contained in this e-newsletter. The readers are advised to consult competent professionals in their own judgment before acting on the basis of any information provided hereby.