tl;dr
IFF filed an RTI application with the Ministry of Information & Broadcasting (MIB) to obtain information on notices sent to publishers of news media under Rule 18 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021). While the MIB stated that 2100 publishers have provided their details under the IT Rules, it refused to provide any other information under the RTI application, such as the number of notices sent, or the legal basis of sending the notices despite a stay on Rules 9(1) & 9(3) of the IT Rules, 2021. The MIB even refused to share the list of publishers, claiming that the publishers provided the details under a “fiduciary relationship” with MIB. Aggrieved by this, we approached the Central Information Commission (CIC), where the CPIO, MIB revealed that by then over 2,800 publishers had submitted their details to the MIB. The CIC held that MIB’s reliance on the fiduciary relationship exemption was misplaced and directed the CPIO, MIB to provide the list of publishers within 15 days.
Why should you care?
MIB issued notices to news publishers under the IT Rules, 2021 even though significant portions of the IT Rules, 2021 have been suspended by the Bombay and Madras High Courts. The Bombay and Madras High Courts ordered the stay after finding that the IT Rules, 2021 may threaten the independence of the press and the very existence of the fourth pillar of democracy. Although Rule 18, which allows the MIB to request this information, has not itself been suspended, the Rules outlining the 3-tier regulatory mechanism and the code of ethics are stayed. A holistic reading of Part III of the IT Rules, 2021 indicates that the purpose of collecting information under Rule 18 is to enable the MIB to identify news publishers and can regulate them under the IT Rules, 2021.
Background
Part III of the IT Rules, 2021 regulates digital media, by laying down a code of ethics and a 3-tier grievance redressal mechanism with the MIB. The code of ethics regulates the type of content that can be published, and how it should be classified and displayed. And the 3-tier mechanism, which puts an officer of MIB on the top tier of regulation can impose sanctions for any violations of the code, including removing news articles. Rule 18 of Part III of the Rules requires publishers to provide information about their entities in a prescribed format.
The Bombay and Madras High Courts have stayed the operation of Rules 9(1) and 9(3) due to concerns that the IT Rules, 2021 threaten the independence of the press. Despite this, it has come to our attention that digital news media publishers have received notices from the MIB requesting information about their entities.
MIB claimed it sent notices under Rule 18, but news publishers responded “voluntarily”
To find out more, we filed an RTI application on 03.01.2022 with the MIB to-
(i) confirm whether this was true;
(ii) understand the legal basis of powers of MIB to issue such notices;
iii) seek information on the total number/names of publishers to whom the notices were sent and who furnished information pursuant to the notices.
The MIB responded to our RTI application on 14.01.2022, confirming that it had sent notices to publishers on 26.05.2021 and a reminder on 09.09.2021, requesting information pursuant to Rule 18 in a specific format. The MIB stated that more than 2100 publishers had provided information in response to the notices. However, the MIB initially did not provide any information about the legal basis for sending the notices after the stay was ordered, or the list of publishers who received the notices. The MIB also did not disclose the number of notices sent, only the number of responses received.
On appeal, the appellate authority at MIB claimed that while it issued the notices under Rule 18, which require publishers to mandatorily provide their details, any details provided by the publishers were on a “voluntary basis”. The MIB revealed that 2,100 publishers had submitted their details.
The MIB also claimed that it could not tell us which publishers had submitted these details because they were submitted in “fiduciary capacity” to the MIB. In its response dated 03.02.2022, the MIB stated that 2100 publishers furnished information on a “voluntary basis” and that the information was submitted in a “fiduciary capacity”. The MIB claimed this in spite of issuing notice dated 26.05.2021, and reminders dated 01.06.2021 and 09.09.2021 seeking information from the publishers. None of these notices indicate that the information sought by the publishers is “voluntary”. Aggrieved by this we filed a Second Appeal at the CIC on 06.05.2022.
Hearing at the CIC
The CIC heard our Second Appeal on 02.03.2023 and held that the invocation of the fiduciary capacity under Section 8(1)(e) of the RTI Act by the CPIO is “grossly misplaced”. While the CPIO disclosed the number of publishers but list of publishers “appears to have been erroneously denied by the FAA as being held in a fiduciary capacity by assuming that the Appellant sought for ‘details of the entities’ submitted by the publishers, when in fact she merely asked for a list of the publishers”.
The CPIO submitted that as of 24.02.2023, “over 2800” publishers furnished information to the MIB and agreed to provide a list of existing publishers. The Hon’ble CIC has directed the CPIO to provide the available list of publishers within 15 days.
We are grateful to advocates Abhinav Sekhri, Tanmay Singh, and Gayatri Malhotra who appeared before the CIC in these proceedings and provided legal assistance by drafting the Second Appeal and written submissions.
Important Documents
CIC’s decision in Anushka Jain v. CPIO, MIB CIC/MOIAB/A/2022/625638 dated 02.03.2023 (link)
Second Appeal filed by IFF dated 06.05.2022 (link)
FAA order dated 23.02.2022 (link)
First Appeal filed by IFF dated 25.01.2022 (link)
RTI application filed before MIB dated 20.10.2021 (link)
Previous IFF Blog Post titled “News publishers furnish their details voluntarily, MIB claims in RTI Appeal” (link)
Previous IFF Blog Post titled “Revealed: Over two thousand news publishers furnished their details to the MIB, despite Bombay HC’s stay” (link)