tl;dr
Recently, we were informed by digital news publishers that the Ministry of Information and Broadcasting (“MIB”), has issued notices to digital news media publishers under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules 2021”), asking them to furnish their details. Accordingly, IFF filed an RTI Application to find out whether the MIB has indeed issued such notices, and to which publishers. The MIB has admitted that it has indeed issued two such notices, and that more than two thousand publishers have responded to these notices!
Background
Under Rule 18 of the IT Rules 2021, publishers of news and current affairs content, and online curated content are required to inform the MIB about their entities and furnish information. This Rule is pursuant to a 3-tier structure established by the IT Rules, and a Code of Ethics contained within the IT Rules. However, the Bombay High Court (in Agij Promotion Of Nineteenonea Media Pvt. Ltd. & Ors v. Union Of India & Anr - order dated 14th August 2021), and the Madras High Court (in T.M. Krishna v Union of India - order dated 16th September 2021) have stayed the operation of this 3-tier structure and the Code of Ethics.
Despite this, we were informed by digital news media publishers that the MIB has issued them notices to furnish information regarding themselves to the MIB. We filed an RTI application on 03.01.2022 to confirm whether this was the case, to understand the authority under which these notices were issued, and to which publishers.
The MIB replied to our RTI application on 14.01.2022, and has provided some answers, but has also left many questions unanswered.
What the RTI response revealed
MIB’s response contains some positive information:
- The MIB admitted that it did indeed issue such notices - on 26.05.2021, and again on 09.09.2021. This is a surprising revelation, since the second notice dated 09.09.2021 was issued after the Bombay High Court’s stay on certain rules of the IT Rules 2021, which conferred authority on the MIB to regulate digital news media.
- The MIB also revealed that more than 2100 publishers (of news media, as well as OTT platforms) have already furnished their details to the MIB. However, when asked how many of these publishers furnished their details after 14.08.2021, the MIB refused to provide the data stating that this information does not exist at all.
This is a matter of concern, because the IT Rules 2021 have serious implications on the independence of news media and press freedom. The Chief Justice of the Madras High Court observed in the order dated 16.09.2021 that:
“For understandable reasons, the petitioners are wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation. 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.
Similarly, the Bombay High Court, in its order dated 14.08.2021 had found that Rule 9(1) prima facie violates the constitutional guarantee of freedom of speech and expression conferred by Article 19(1)(a), and that the Code of Ethics in the IT Rules had tried to exalt the Norms of Journalistic Conduct (which have moral sanction, but not statutory obligations) to the status of mandatory compliance.
It is surprising that the MIB has ignored these judgments of constitutional courts, and issued a notice on 09.09.2021, requiring digital news publications to furnish their details. But when we asked the MIB what legal authority enabled it to issue this notice, our question was ignored, as described below.
Some questions went unanswered
Some of our requests for information were denied, refused or flat out ignored, such as our question regarding how many publishers furnished their information after the Bombay High Court’s order. Other than this, we also sought a list of publishers to whom these notices were issued, and a list of publishers who responded to this notice with their details. Not only were reasons not provided for MIB’s refusal to provide these lists, but the MIB did not even explicitly refuse to provide these lists - the MIB simply ignored those parts of our questions!
When we asked for information regarding the authority under which the MIB could issue such communications after the Bombay HC’s order, the MIB simply stated that this information does not fall in the definition of information in Section 2(f) of the RTI Act. We have thus been provided no details regarding how and under what legal authority the notices were issued.
A positive response advances transparency
We thank the MIB for responding to some of our questions, and acknowledge that this advances transparency on part of the MIB. However, the MIB has also refused, without reasons, to reply to several of our queries.
As a next step, we will file an appeal with the concerned authorities and will await their response to all our requests for information. We express our hope that the MIB will provide us these answers in response to our first appeal. We will keep you updated!