The Government of India, in February 2021, introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Rules”) under the Information Technology Act, 2000 (“IT Act”), to regulate intermediaries, publishers and individual creators of news and current affairs content and online curated content.
Since the introduction of the Rules, a number of petitions challenging the same have been filed and are currently pending before the High Courts of Delhi, Kerala, Karnataka etc. Recently, two petitions have been filed before the Bombay High Court that mount a challenge to the Rules on the ground that they are ultra vires the IT Act and the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India. One petition, Agij Promotion of Nineteenonea Media Private Limited and Ors. Vs. Union of India and Anr.1 was filed by ‘the Leaflet’, a digital news web portal which has published articles, opinion pieces and reportage pertaining to various social and political issues. Shri Nikhil Mangesh Wagle, a journalist since 1977 filed the second petition, Nikhil Mangesh Wagle vs. Union of India2, before the Bombay High Court.
Rule 9 (1) under the Rules require publishers of news and current affairs content and online curated content with a physical presence in India, to adhere to the Code of Ethics provided under the Rules. This requirement also applies to foreign publishers conducting the systematic business activity of making their content available in India. Systematic business activity means any structured or organised activity that involves an element of planning, method, continuity or persistence.
The Code of Ethics require publishers of online curated content to: (a) classify content into categories based on the nature and type of contents; (b) provide and display the relevant rating for such categories based on the relevant content; (c) introduce access control mechanisms; (d) take reasonable efforts to improve accessibility of online curated content to persons with disabilities; and (e) ensure that the online curated content is not prohibited under law.
As per Rule 9 (3) of the Rules, publishers operating in the territory of India are required to institute a three-tier grievance redressal mechanism, i.e. self-regulation by the publishers, self-regulation by self-regulating bodies that may be set up by the self-regulating bodies of the publishers and an oversight mechanism by the government.
The primary submission of the petitioners in the above petitions is that the provisions of the Rules are ex-facie draconian and arbitrary, in as much as such provisions travel beyond the ambit of the restrictions imposed under Article 19 (2) of the Constitution. It was also submitted that the Rules have a terrible chilling effect in their applicability to the internet as they bring about a manifestly unreasonable and an arbitrary regime amounting to an affront to the constitutional guarantee of right of citizens to exercise freedom of free speech and expression.
The Central Government submitted its response to the Bombay High Court stating that the Code Of Ethics was introduced to create a level playing field between online and offline publishers and that the grievance redressal mechanism was introduced in order to combat the issue of fake news. They also submitted that the scope of the IT Act includes recognition of electronic records which are in the nature of media content and therefore Part III of the Rules was not ultra vires the IT Act, as alleged by the petitioners.
After hearing arguments from both the sides, the Court noted that the obligation on publishers of news and current affairs content and online curated content was taken from a statutory regime alien to the IT Act, i.e., the Press Council Act, 1978 (“PCA”) and the Cable TV Networks Regulation Act, 1995 (“CTVRA”). It was held that independent legislations dealing with such fields cannot be introduced under the Rules nor could any substantial action be taken under the Rules for their breach. The IT Act did not seek to censor content on the internet, except to the extent of the grounds under Section 69A (in the interest of sovereignty and integrity of India, defence of India, security of the State, or public order, etc.). Rule 9 of the Rules travelled beyond the provisions of Section 69A. The Bombay High Court also held that compliance with the norms and the programme code had been exalted to a mandatory statutory compliance under the Rules, however, the sanctions under the norms and programme code were moral sanctions and not statutory sanctions, and they simply set out a moral code for the publishers. Rule 9 appeared to prima facie infringe upon the constitutional guarantee of freedom of speech and expression under Article 19(1)(a) of the Constitution of India in seeking to subject publishers to action under the PCA/CTVRA which provided for an independent mechanism for violation of their provisions.
The Bombay High Court recognised the importance of freedom of expression and held that a democracy would thrive only if the people of India regulate their conduct in accordance with the preambular promise that they took while giving to themselves the Constitution. Liberty of thought is one of such promises. Exercising this liberty, expressions take shape. Should at least a part of Rule 9 of the Rules be not interdicted even at the interim stage, it would generate a pernicious effect. As it is, the constant fear of being hauled up for contravention of the Code of Ethics is a distinct possibility now. People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles. This regime would run clearly contrary to the well-recognized Constitutional ethos and principles.
In view of the above, the Bombay High Court held that the IT Act under which the Rules are framed does not confer any power on the Central Government to frame a provision in the nature of Rule 9. Accordingly, Rule 9(1) and Rule 9(3) have been stayed as an interim relief by the Bombay High Court and the Government of India has been allowed time to file their reply affidavits and rejoinder. The matter is listed on September 27th for final hearing. It will be interesting to see if the interim relief granted by the Bombay High Court is reinforced or reversed post the final hearing.
1 Writ Petition (L.) No. 14172 of 2021.
2 Public Interest Litigation (L) No. 14204 of 2021.