The DigiPub News India Foundation, an association of digital publications of news and current affairs representing the largest collection of Digital News Publishers in the country, has written to the Union Ministers for I&B and Union Minister for Electronics and IT, Prakash Javadekar and Ravi Shankar Prasad expressing reservations regarding the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. Digipub is an association of digital publications of news and current affairs representing the largest collection of Digital News Publishers in the country.
The full text of the letter is as follows.
We welcome the initiative and statements by the Minister of Information and Broadcasting stressing the need for self-regulation of all media including digital news media. It is imperative and the need of the hour. We would be happy to participate in a process by which we can come to an appropriate mechanism to make this happen.
However we have some concerns about some specifics of the Rules (Rules) that have been notified and announced yesterday the 25th of February 2021.
These Rules in some places appear to go against the fundamental principle of news and its role in a democracy. While rules and laws already exist to hold news media accountable, the aforesaid rules enable the executive government to even remove content published as current affairs or news (Rule 14.) among other things.
We draw your attention to the well settled jurisprudence on news media. A publication relating to current affairs represents not only the author or publisher’s fundamental right to expression under Article 19(1)(a) of the Constitution but also the citizen’s right to be informed and to have access to differing viewpoints. For the executive to have the absolute power to regulate the content of news portals or publications would be to strike not only at the constitutional scheme but at democracy itself.
There are some other anomalies in the rules as formulated. In the Rules as drafted, expression may invite adverse consequential action, such as in the case of defamation. Such action should only happen after adjudication by open courts of law, on legal principles. This entire legal process is bypassed by the Rules, in as much as, upon a complaint of defamation, a body consisting of bureaucrats and controlled by the Central Government may decide the merits and block access to the content of any current affairs publication.
Likewise, whether or not a publication is pornographic or offends any other law, is a matter of due process and adjudication by an open and independent judiciary. All these powers will now be wielded by a Government of India body. This also goes against the principle of separation of powers.
While it is recognised that the freedom of expression is subject to reasonable restrictions, these restrictions must be demonstrably and strictly necessary to the interests enumerated in Article 19(2), and must also be reasonable, fair and just. To empower a body of government servants to do so could inhibit the news media for doing its job.
For the written medium, the emphatic jurisprudence has been that it should remain free of all executive control. Even proscription of books under S. 95 of the CrPC is subject to a right of review by a Special bench of the High Court consisting of three judges.
A current affairs portal is by and large, a written newspaper in the digital format. From the early 1950s, with the setting up of the Press Council, the idea has been that the written medium be kept away from all executive interference in the interest of not just the publication, but of the wider public to ensure the widest possible dissemination of news and ideas.
Even the small-screen has been left by and large to regulate itself without any executive interference, i.e., through the NBSA. We believe to subject the digital medium to executive control in the manner provided for by the rules would be unfair and overarching.
While digital media may be multimedia and use visuals, those are anyway subject to all penal and other laws and subject to regulations already in place.
Having said the above, we draw your attention to a matter of very important detail.
The IT ACT, 2000 does not at all take within its ken - digital media. ‘News and current affairs content’, ‘newspaper’ and a ‘publisher’ of the same, are not recognised by the IT Act at all. When the parent statute does not comprehend these operations, the delegated legislation within these Rules need not take into its ambit digital news.
More so if one views, the sections under which these Rules have been formulated, i.e. S. 87(2) (z) & (zg). Sub clause z refers to blocking of access to the public under. S. 69A, IT Act, which is limited to concerns of national security. Sub-clause zg is limited only to intermediaries. Even the Rules recognise that publishers of content on current affairs are not intermediaries at all but entirely distinct.
As an association of digital news portals, we recognise the need for maintaining journalistic standards and for self-regulation, and are happy to contribute in evolving the means to achieve this.
We offer once again to have consultations with stakeholders before notifying these Rules. We ourselves wrote to the Honourable Minister for Information and Broadcasting on December 2, 2020, requesting to be part of a consultation process, but never received a reply. We believe It is still not too late. We request you to repeal these Rules, or at least put them on hold, until meaningful consultations are undertaken with all the stakeholders.
(Full disclosure: TNM's Editor-in-Chief Dhanya Rajendran is the Chairperson of DigiPub News India Foundation).