The Bombay High Court on Saturday, August 14, stayed the operation of Rules 9(1) and 9(3) of the Information Technology (IT) Rules, 2021 for digital media which pertain to adherence to a Code of Ethics. According to Live Law, the High Court found Rule 9 to be prima facie an intrusion of the petitioners rights under Article 19(1)(a) of the Constitution [Freedom of speech and expression]. “We have also held that it goes beyond the substantive law, therefore we have stayed clauses 9(1) and 9(3),” said the Bombay High Court, as reported by Live Law. Since the court’s order copy has not been published, it is unclear if the relief is only for the petitioners (The Leaflet website in this case) or all digital media.
The court has stayed two provisions of the law introduced by the government on 25 February, 2021. This deals with adherence to a Code of Ethics laid down in the rules and requires publishers to follow a three-tier self regulatory mechanism. This self regulatory mechanism which many digital sites in India have opposed includes self-regulation by publishers, self-regulation by self-regulating bodies of the publishers and an oversight mechanism by the Union government.
While staying Rule 9, the court, however, found that no case was made out for Rule 16 (Blocking of information in case of emergency). The court observed that the petitioners had not challenged similar provisions in the 2009 Intermediate Rules. The High Court also observed that no immediate relief was required for Rules 7 (Non-observance of rules) and 14 (Inter-departmental Committee). The court pointed out that the inter-departmental committee was yet to be constituted. The HC, however, noted that the petitioners could approach the court with their grievance when the inter-departmental committee is constituted by the Union government. After the court passed the order, the Additional Solicitor General requested a stay of the order. This was, however, rejected by the court.
The Bombay High Court was hearing petitions filed by digital news portal ‘The Leaflet’ and journalist Nikhil Wagle, which pointed out that the new regulations are "vague", "draconian", and bound to have a "chilling effect" on the freedom of press and right to free speech guaranteed by the Constitution. The media portal in its petition said that the new IT Rules was being violative of Articles 14 (Right to equality), Articles 19(a) (freedom of speech and expression) and 19(1)(g)(freedom to practice any profession, or to carry on any occupation, trade or business).
The Leaflet contended that the new IT Rules released in 2021 are beyond the rulemaking power of the Union government. The plea said, “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.”
Ashish Khetan, who is a contributing editor of the news portal is a co-petitioner. The petition contended that the new rules impose unreasonable, excessive, and tenuous burdens on digital news publishers. The petition also mentions that the new rules will restrict and narrow the scope of reporting undertaken by the digital publishers and also make it economically non viable for them. The petition argued that the burden on the digital news publishers violates the rights of the press protected under the Constitution of India.
Many digital media organisations have filed cases against the rules in various courts across India. The Kerala High Court had ruled that petitioner Live Law should not come under coercive action, but this is the first time that a court has stayed any provision of the rules.
It was in February this year that the Union government laid down the rules and the framework for regulating social media companies, streaming service providers and digital news publishers. The new Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 said that such organisations would be brought under a three-tier regulatory framework. The proposed new rules covered social media companies such as Facebook and Twitter, OTT platforms such as Netflix, Amazon Prime, Hotstar etc, and also digital news publishers like The News Minute, Scroll, Quint, The Wire, Newslaundry etc.
However, many people including critics and experts of the IT Rules raised concerns over several factors, including the privacy of users and censorship of digital news media, which would ultimately affect citizens’ rights in India. Many different organisations and individuals had moved courts across the country, challenging the rules and guidelines that were issued.
During an earlier hearing, the Bombay High Court had asked the Union government to file a reply as to why an interim stay should not be given to the implementation of the IT Rules, as demanded by two petitions. A bench of Chief Justice Dipankar Datta and Justice G S Kulkarni sought the government's reply by August 12. At the time, Additional Solicitor General Anil Singh, the Union government's lawyer, urged the court not to grant a stay without a final hearing.
The HC had asked if it could grant an interim stay to the rules with the petitioners agreeing, for now, not to publish anything in violation of the restrictions under Article 19 (which defines the freedom of speech and its limits) and the Union government promising not to take coercive action against them under the new rules until the court gives its final decision.
"Suppose we accept your (petitioners') argument and grant a stay. So the rules will remain in suspension. If you fail in the writ (petition) and rules are violated in the interim, you cannot use our orders to seek relief if you fail in the writ...And the Union does not take any coercive action as per the new rules?" the HC said.
Advocate Khambata said the petitioners always adhere to the restrictions under Article 19 and oppose only the new rules which go beyond Article 19. "As long as Article 19 (2) is the only limit, there is no difficulty," he added. But the additional solicitor general opposed the court's proposal. "Instead of granting an interim stay, the final matter can be heard," Singh said.
The court pointed out that similar petitions opposing the new rules have been filed in high courts across the country, but the Union government was yet to file its replies. If a stay was not granted, the petitioners will be under "constant fear" of adverse action whenever they publish anything online, the judges said. "File a short affidavit on why interim relief should not be granted," the HC told the Union government, adjourning the hearing to August 13.
Arguing that the new rules were vague, advocate Khambata had said that among other things, they prohibit media organisations from carrying out sting operations without proof and publishing defamatory content against a public personality. But the rules do not define `adequate proof' or `defamatory content', he said. "These rules are seeking to effectively monitor and censor speech on the internet by giving powers to a ministerial committee," he alleged.
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