Delhi High Court challenges intermediary guidelines

The Delhi High Court today issued notice in a challenge to the recently notified Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (Foundation of Independent Journalism & Ors v. Union of India).

The Court will hear the parties at length on the next date of hearing, which is April 16.

Notice was issued by the Bench of Chief Justice DN Patel and Justice Jasmeet Singh.

The Court was also urged to grant the petitioners interim protection, so that no coercive steps are taken under the new Rules against the digital news media outlets until the next hearing. The Bench, however, noted that the petitioners may move the Court if any coercive action is taken.

The Rules regulate the functioning of online media portals and publishers, over-the-top (OTT platforms), and social media intermediaries.

Further, according to the Rules, a ‘significant social media intermediary’ has some additional obligations in comparison to other social media intermediaries.

Appearing for the petitioner today Senior Advocate Nithya Ramakrishnan contended that the new rules, particularly in their regulation of news media and current affairs, goes beyond the parent Act i.e. the Information Technology Act, 2000. The new rules “go far beyond anything that is permissible in a democracy”, she argued.

The petition has been moved by the Foundation for Independent Journalism which also publishes “The Wire“, the Foundation’s director and “The Wire” Founding editor, MK Venu and Dhanya Rajendran, the Editor-in-Chief of The News Minute.

The plea challenges the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in as much as these rules imposes government oversight upon digital news portals on vague conditions as ‘good taste’, ‘decency’ etc.

Senior Advocate Ramakrishnan clarified today that the petition is not being filed against the regulation of OTT media or other platforms.

The petitioners have termed the new rules as an overreach on the following, among other, grounds:

• The parent Information Technology Act is limited to providing “legal recognition, authentication and facilitation of interchange of electronic data and electronic communication, and its receipt as evidence.” It does not deal with the regulation of electronic content, except where there is cyber terrorism, sexually explicit material, child pornogrpahy, tampering, theft etc. involved. None of these offences are of any relevance to a digital news portal.
• While sites can be blocked under Section 69A of the IT Act in emergency situations on a government direction to intermediaries, there is no scope under this provision to dictate the content of news media portals. Further Section 69A, IT Act is only targetted either at an “agency of the Government” or an “intermediary”. Digital news platforms are neither.
• As such, if the challenged Rules are allowed to stand, it would be so arbitrary and unwarranted an intrusion on expression, as to render it ultra vires the parent Act on that score alone.
• The IT Rules, 2021 are purportedly made under Section 87(1) of the parent Act, more particularly Section 87(2)(z) & (zg), which enable Rules to be framed in relation to blocking access under Section 69A, IT Act or for guidelines to intermediaries under Section 79, IT Act. However, as contended above, Section 87(2)(zg) is not applicable to digital news media as they are not intermediaries either as per the Act or as per the Impugned Rules.
• In travelling beyond the Act, the IT Rules, 2021, seek to impose upon the non-intermediary digital news media a three-tier regulatory system to administer a loose-ranging Code of Ethics that contains wide and vague terms as ‘half-truths’, ‘good taste’, ‘decency’, ‘suggestive innuendos’, etc. This is contrary to the Supreme Court judgment in Shreya Singhal Union of India that struck down Section 66-A of the IT Act for being vague.
• With the new rules, the merest complaint would trigger Central Government interference in the content of the digital news platforms. This is far beyond what is allowed under Section 69A, IT Act. A Government oversight of news media content lies nowhere within the scope of the Act.
• Whether news agencies and commentators on current affairs should be subjected to a Code of Ethics is not the question. The question is whether regulation and oversight by the Government or its agents can be prescribed by the Rules when it is not contemplated by the parent Act. In this regard, Senior Advocate Ramakrishnan argued today that if at all the news media is sought to be regulated, it has to be “through a statute dedicated for that purpose, independent of the executive.”

Using 69A, how can they impose a whole regulatory burden on news and current affairs?

Senior Advocate Nitya Ramakrishnan

The petitioner goes on to recount that a representation seeking the repeal of the new rules was sent by the DigiPub News India Foundation in February. However, a petition has now been moved in Court since no reply has been received on this representation yet.

It is also noted that the recently a senior Manipur-based journalist, Paojel Chaoba, was issued a notice to report compliance with the new rules, although it was reported that the notice was withdrawn later.

The petition has been filed through Advocates Prasanna S, Vinoothna Vinjam and Bharat Gupta. –Barandbench