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IT Rules 2021: Bombay High Court stays oversight mechanism on publishers

The Bombay High Court has ordered a partial stay on provisions of the IT Rules, 2021.

The court has stayed parts of Rule 9(1) and 9(3) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.

Rule 9(1) mandates publishers to adhere to a code of ethics and Rule 9(3) contains an oversight mechanism by the central government.

The high court passed the interim order in a petition challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.

The petitioners in this case are legal news portal The Leaflet and senior journalist Nikhil Waghle.

They argued that the rules violate the fundamental rights of equality, freedom of speech and expression and the right to practice any profession, trade and business.

The IT rules 2021 were framed by the government in exercise of its rule making powers under the Information Technology Act,2000.

The Leaflet argued that the government does not have the powers to frame these rules under the IT Act as it does not provide the government with powers to regulate content of online publishers.

Petition by The Leaflet:
“Apart from a single provision that enables the blocking of content available online on specified grounds, there is nothing in the IT Act that seeks to regulate content, in particular, the content of news publishers.”

The petition also argued that the restrictions imposed on digital news publishers through these rules are designed to narrow the scope of their reporting, along with placing economic hardship on them.

On Friday, the court had reserved orders on the interim prayer by the petitioners, who had sought a stay on the operations of the rules. Senior Advocate Darius Khambatta argued in favour of a stay on the rules.

The government, however, opposed the request of the petitioners.
In an affidavit filed in the court, the central government argued that there was no urgency which requires the court to stay the IT Rules.

Government reply in High Court:
“It is also submitted that an interim stay on the implementation or operation of Part-III of the Rules would render the legally established institutional framework for digital media publishers inoperative, leading to an environment of impunity, and concomitant spread of fake news and legally prohibited content.”

The IT Rules, 2021 have witnessed challenges in multiple courts across the country.

Part-III of the rules deals with compliance and due-diligence requirements for online content publishers and has been challenged by The Wire, The Quint and senior journalist Dhanya Rajendran in the Delhi High Court.

Legal news portal LiveLaw has mounted a separate challenge in the Kerala High Court where it has succeeded in getting interim protection from any coercive action.

Part-II of the rules deal with significant social media intermediaries. Among the challengers to constitutionality of Part-II is WhatsApp, which has questioned the rules on the ground that it will require them to break the end-to-end encryption guarantee that it grants all its users.

The central government, too, has filed a transfer plea in the Supreme Court of India where it has requested the top court to transfer all the pending cases from the high courts to itself. The court is yet to issue a notice on the central government’s petition. BloombergQuint

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