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Introduction
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.
Analysis
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.
Footnotes
1 https://www.mondaq.com/india/social-media/1063198/the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-impact-on-digital-media-
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).
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