Kerala HC restrains coercive action on the operation of Part III of the Intermediaries Rules, 2021 for LiveLaw

Tl;dr

In a major victory for online publishers of legal news and literature, today the Kerala High Court restrained coercive action on the operation of Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “Intermediary Rules 2021”) to LiveLaw Media Pvt. Ltd. in a writ petition filed by LiveLaw Media Pvt. Ltd., M. A. Rashid and Manu Sebastian. The petition comprehensively challenged the Intermediary Rules 2021, framed under the Information Technology Act, 2000 (the “IT Act”).

Background

On February 25, 2021, the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting released the Intermediary Rules 2021, which seek to increase the government control and regulation over social media intermediaries and the content that is posted on such intermediaries. The Intermediary Rules 2021 also seek to bring OTT platforms and digital news media platforms under the purview of the IT Act, under Part III thereof. Read  our deep dive analysis of the Intermediary Rules 2021 here, where we explain how the Rules are unconstitutional, undemocratic, and how fundamentally they will change the internet usage experience.

LiveLaw Media Pvt. Ltd., which owns and operates the legal news portal, and courtroom live update service, LiveLaw.in, filed a writ petition in the Kerala High Court challenging the Intermediary Rules 2021 on the following, among other, grounds: First, the Intermediary Rules 2021 are ultra vires the IT Act; and second, they overrule the effect of the judgment of the Supreme Court in Shreya Singhal v Union of India which provided immunity to intermediaries and laid down the procedure in respect of ‘content takedown’ orders. The writ petition also argues that the Intermediary Rules 2021 violate the fundamental right to freedom of speech, expression and access to information under Article 19(1)(a) of the Constitution, violate the fundamental right to freedom of profession, business, trade and occupation under Article 19(1)(g) of the Constitution, and violate the fundamental right to privacy under Article 21 of the Constitution.

LiveLaw Media’s writ petition is a comprehensive petition in relation to the Intermediary Rules 2021 and challenges all aspects of the Rules, including the application of such Rules to social media platforms, OTT platforms and digital news media platforms, and the users thereof.

The Intermediary Rules 2021 have also been challenged before the Delhi High Court by the Foundation for Independent Journalism, whose petition came up for hearing before a bench led by the Hon’ble Chief Justice of the Delhi High Court on March 9, 2021. This challenge was limited only to the application of the Intermediary Rules 2021 to digital news media, and does not deal with social media, OTT platforms or the rights of the users of such platforms. The Petitioner in this petition challenged the vires of the Rules, and submitted that the purport of the IT Act is to recognise and facilitate e-commerce, not to regulate content of digital media etc., and in fact the IT Act doesn’t even recognise newspaper entities. The Delhi High Court was pleased to issue notice in the matter, provided time to the government to file its counter affidavit and posted the matter for next hearing on April 16, 2021.

Proceedings before the Kerala High Court

LiveLaw Media’s Writ Petition, which is a comprehensive challenge in respect of all provisions of the Intermediary Rules 2021 as described above, was filed on March 9, 2021, by a team led by Advocate Santhosh Mathew and consisting of Advocate Anil Sebastian Pulickel. The Internet Freedom Foundation provided legal assistance in the drafting and filing of the petition through Advocates Vrinda Bhandari, Gautam Bhatia, Karan Lahiri, Abhinav Sekhri, Sanjana Srikumar, N Sai Vinod, Devdutta Mukhopadhyay, Tanmay Singh and Krishnesh Bapat. The Writ Petition came up for its first hearing on the next day, i.e. March 10, 2021, before a Single Judge Bench of Justice Asha  of the Kerala High Court.

Mr. Mathew advanced oral arguments on behalf of Live Law and drew the Court’s attention to the provisions of the IT Act, under which the Intermediary Rules 2021 have been purported to be made, and highlighted that there is no provision of the IT Act which allows the regulation of digital news media, by the issuance of such Rules.

He argued that someone may write an article containing certain opinions, or LiveLaw may report a judgment, which contains certain remarks, which may not be palatable to a particular reader. Any such reader may consider themselves aggrieved by such content, and file a grievance with LiveLaw, and LiveLaw will then have to sit in judgment over such content. If LiveLaw does not remove such content, the self-regulatory body appointed subject to the Central Government’s approval will judge the suitability of such content, and on the third level, the Central Government itself shall decide whether to remove such content. This entire process takes place even though the parent Act of the Intermediary Rules 2021, i.e. the IT Act does not even apply to news media, since the IT Act applies to intermediaries, and news media are not intermediaries.

In response, the government claimed that the power to govern news media under the IT Act arises from S.69B of the IT Act, and suggested that LiveLaw may not even be considered as news media, insofar as it reports court judgments, however, any commentary offered on such judgments may be covered under ‘news media’.

Mr. Mathew, counsel for the petitioners, submitted that LiveLaw does not intend to register itself with the ministry within 30 days, as required by Rule 12(3) of the Intermediary Rules 2021, or constitute the self-regulatory body at all since such requirements of the Rules are outside the scope of S.69A of the IT Act. He pointed out that there may be complaints against LiveLaw in the meantime and there would be an obligation to provide a reply within 24 hours and resolve the grievance within 15 days and, thus, the Petitioners require interim protection. He clarified that LiveLaw was not shirking its responsibilities under any law, rules, regulations or guidelines applicable to it, but that the Intermediary Rules 2021 are not applicable to it.

Directions Issued by the Kerala High Court

The High Court of Kerala was pleased to admit the matter for hearing, and restrained coercive action of the operation of Part III of the Intermediary Rules 2021 as applied to the Petitioners. Part III of the Rules relates to digital news media, and requires publishers of digital news media to establish a grievance procedure, appoint a grievance officer, establish a self-regulatory body, register itself with the Ministry of Information and Broadcasting and adhere to the Code of Ethics provided in the Appendix.

This is a significant victory for the publishers of judgments and legal records, and will provide relief to the Petitioners against any coercive action until the writ petition is finally decided. We thank Live Law for giving us an opportunity to lend our expertise in this important case and are deeply grateful to all the lawyers who worked on this petition and especially Mr. Santhosh Mathew who led the legal team.

  1. Writ Petition filed on behalf of LiveLaw Media Pvt. Ltd. (link)
  2. Previous post titled 'Deep dive : How the intermediaries rules are anti-democratic and unconstitutional.' dated 23.11.2020 (link)