The Bombay High Court, by its interim order dated 14th August 2021, has stayed the operation of Rules 9(1) and 9(3) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The two rules required publishers of news on the internet and publishers of online curated content to comply with a Code of Ethics and also prescribed a three-tier grievance redressal mechanism headed by the government. The Court found these rules to be prima facie violative of Article 19(1)(a) and beyond the rule-making power conferred by the Parliament on the Government.
On 25th February 2021, the Ministry of Electronics and Information Technology (MEITY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the Rules) under the Information Technology Act, 2000 (IT Act, 2000). Back then, we provided a detailed explainer on the Rules, which pointed out that they change the way Indians experience the internet, suffer from unconstitutionality and undermine the freedom of speech and expression of Indians.
As a recap, Part-I of the Rules provides the definition clause. Part-II regulates intermediaries such as Facebook, WhatsApp and Twitter and imposes upon them the due diligence obligations such as the obligation to identify the ‘originator’ of a message or the obligation to deploy technology-based measures to identify and flag unlawful information proactively. Rule 7, which is contained in Part-II, ordains that if an intermediary fails to comply with its obligations, it shall be liable for punishment under any law in force, including the provisions of the Indian Penal Code, 1860.
Part-III of the Rules regulates publishers of news and current affairs content (digital news media) and publishers of online curated content (OTT platforms). Rule 9(1), which is contained in Part-III of the Rules, requires digital news media and OTT platforms to adhere to a Code of Ethics laid down in the Appendix annexed to the Rules. Amongst other things, the Code of Ethics requires digital news media not to publish content prohibited under any law and to comply with the Norms of Journalistic Conduct of the Press Council of India and the Programme Code under Section 5 of the Cable Television Network (Regulation) Act, 1995 (CTN Act). Rule 9(3) provides a three-tier grievance redressal mechanism that allows anyone to raise a complaint if digital news media/OTT platforms do not comply with the Code of Ethics. In the first instance, publishers have to address the complaints themselves (Rule 11). The publishers’ decisions may be appealed to a self-regulatory body of publishers which has to register itself with the government (Rule 12). The decisions of the publishers or of the self-regulatory body may in-turn be appealed to an Inter-Departmental Committee that consists only of bureaucrats working for the central government. The Committee may also entertain complaints regarding violations of the Code of Ethics which are referred to it by the Ministry of Information and Broadcasting (MIB). If the Committee finds that a publisher has violated the Code of Ethics, it may recommend MIB to, amongst other things, warn, censure, admonish or reprimand the publisher, and delete or modify content.
The challenges to IT Rules, 2021
Considering the vast powers conferred on the government to regulate publishers on the internet, several digital news media entities, users, artists and organisations have challenged the validity of the Rules. IFF has provided legal support to LiveLaw Media Pvt. Ltd.’s challenge before the Kerala High Court and Mr T.M. Krishna’s challenge before the Madras High Court. On 10.03.2021, the Kerala High Court had directed the government to not take any coercive action against LiveLaw Media Pvt. Ltd. under Part-III of the Rules. The Madras High Court has issued notice and directed the Government to reply to the petition filed by Mr T.M Krishna.
In the Bombay High Court, the Rules have been challenged by Agij Promotion of Nineteenonea Media Pvt. Ltd., which owns the web portal, the Leaflet, and Mr Nikhil Wagle, a journalist. They have contended that the Rules are ex-facie draconian, arbitrary, beyond the rule-making power conferred by the Parliament on the Government and violative of the right to freedom of speech and expression. Over the past week, the Bombay High Court extensively heard the counsel for the two petitioners and the government on whether the Court should issue an interim order staying the operation of the Rules. The Court pronounced its order on 14th August 2021.
The decision of the Bombay High Court
The Bombay High Court, in its order dated 14th August 2021, found that Rules 9(1) and 9(3) suffer from the following illegalities -
- Rule 9(1) prima facie violates the constitutional guarantee of freedom of speech and expression conferred by Article 19(1)(a) because it subjects publishers to comply with the Norms of Journalistic Conduct and the Programme Code under the CTN Act, both of which provide for an independent mechanism for any violation. (Paragraph 32)
- The obligation on publishers to comply with the Code of Ethics is not envisaged under the IT Act, 2000. The Act does not empower the government to impose Norms of Journalistic Conduct of the Press Council of India and the Programme Code upon the publishers. The IT Act, 2000 does not seek to censor content on the internet except to the extent permitted by Section 69A. (Paragraph 25)
- The Norms of Journalistic Conduct are guidelines framed by the Press Council of India. The sanction of the Norms is moral and not statutory. However, the Code of Ethics has exalted the Norms to the status of mandatory compliance. On the other hand, the Programme Code regulates cable services but cannot mind writers/editors/publishers of content on the internet. (Paragraphs 27, 28)
Based on the above, the Court stayed the operation of Rules 9(1) and 9(3). Since the Rules have been notified by the Central Government, the decision is applicable throughout the territory of India and is not confined to the territorial jurisdiction of the Bombay High Court in accordance with the observation of the Supreme Court in Kusum Ingots & Alloys Ltd. vs Union of India & Anr. Hence, the much-criticised Code of Ethics cannot be enforced anywhere across the country.
Notably, the Court also made important observations on the importance of dissent in a democracy. The court noted that “for proper administration of the State, it is healthy to invite criticism of all those who are in public service for the nation to have structured growth but with the 2021 Rules in place, one would have to think twice before criticizing any such personality, even if the writer/editor/publisher may have good reasons to do so without resorting to defamation and without inviting action under any provision of law” (Paragraph 29). The Court also stated that “people would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.” (Paragraph 30)
Apart from Rules 9(1) and 9(3), the Court also examined Rules 14 and 16. On Rule 14, the Court stated that there was no immediate urgency as the Government had not constituted the interdepartmental committee. Thus, the oversight mechanism has not taken effect. Accordingly, the Court granted the petitioners to seek relief on this rule when a committee is established (Paragraph 19). The Court found Rule 16, which permits blocking of information in case of emergency, to be traceable to Section 69A(1) of the IT Act, 2000, which complies with Article 19(2) of the Constitution (Paragraph 20). Thus, the Court did not stay its operation (Paragraph 30). The Court has now listed these petitions for final hearing on 27th September 2021.
IFF’s Executive Director, Apar Gupta, made the following statement on this decision:
“We welcome the decision of the Bombay High Court. It provides much-needed relief to news writers, editors, publishers and content creators across the country. Here, we commend the work and leadership of the lawyers, litigants and the High Court. We will continue to support further action on the IT Rules, as further work is needed for social media users and online streaming services for relief from the anti-democratic IT Rules. IFF will continue to provide legal support to LiveLaw Media Pvt. Ltd. and Mr T.M. Krishna in their efforts to protect the right to speech and privacy of Indians on the internet. “
- Bombay High Court order dated 14th August 2021. (link)
- Table summarising challenges to IT Rules, 2021. (link)
- Previous post titled “Kerala HC restrains coercive action on the operation of Part III of the Intermediaries Rules, 2021 for LiveLaw” dated 10th March 2021. (link)
- Previous post titled ‘Madras High Court issues notice in petition challenging the Intermediary Rules 2021 by T. M. Krishna’ dated 10th June 2021(link)
- Previous post titled 'Deep dive : How the intermediaries rules are anti-democratic and unconstitutional' dated 27th February 2021 (link)