Thirteen media outlets in India under the Digital News Publishers Association (DNPA) have moved the Madras High Court against the new IT Rules, asking that the court declare the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 as ultra vires, void and violative of fundamental rights under the Constitution. This is the first time that mainstream media outlets have contested the new IT Rules and this is one of the many petitions filed against the new IT Rules in various High Courts of the country. The networks that have moved the Madras HC include media giants like ABP Network, Express Network, Hindustan Times Digital Streams, Indian Express Online Media Services, Lokmat Media, NDTV Convergence, TV Today Network, Malayala Manorama, Times Internet, etc. The petition states that the DNPA represents only traditional and legacy media outlets in print and broadcasting.
In its writ petition, the DNPA, an association of 13 print and television media organizations, has said that the new IT Rules seek to legislate the conduct of entities which are outside the scope of the Information Technology Act, 2000 and that they transgress the provisions of the parent Act. The IT Rules 2021 seek to curb the freedom of speech and expression, the plea says, as well as freedom of press by proscribing content on the basis of vague and subjective grounds, which have already been struck down by the Supreme Court. The petition also states that IT Rules 2021 seek to usher in “an era of surveillance and fear,” which may result in self-censorship, which further curtails the fundamental rights as envisaged under the Constitution of India.
The Madras High Court heard the DNPA petition on Wednesday, but tagged it with the plea filed against the IT Rules by musician and activist TM Krishna. It issued a notice to the Union government and granted interim relief for the association, and allowed it to approach courts if any coercive action is taken under the rules. The court will hear the case further after three weeks.
The petition states that the Union government has “wrongfully and arbitrarily” classified legacy media houses involved in television and print media as part of digital media. “The Petitioner No. 1 (DNPA) most humbly submits that Part Ill of the IT Rules impose arbitrary, unjustified, undue and unfair oversight into the acts of the Petitioner No. 1's member media houses, which opens the door to suppressing freedom of speech and the independence of news media in the country, which has been upheld by the Supreme Court in a catena of judgments. The power which the IT Rules seeks to confer in the Respondent State is arbitrary and untrammeled and in violation of Article 14 of the Constitution of India,” the petition states.
Part III of the rules detail the ‘due diligence' that is to be followed by websites, mobile applications and portals of social media networks, media sharing websites, blogs, online discussion forums and other such similar ‘intermediaries’ as defined by the government. This includes a grievance redressal mechanism, publishing the rules and regulations, privacy policy and user agreement; and maintaining a monthly register of grievances.
The petition adds that the IT Rules will lead to an individual constantly remaining in fear of facing consequences and will not engage in any content that may be close to the prohibited line, even though it may be legal. The networks have said that intermediaries like social media networks will also be “trigger happy” to pull down content while keeping a low threshold for any complaints received. This will lead to self-censorship without the Union government having to exercise an explicit power to curb such freedom of speech, the petition says. “Even such self-censorship on account of the Respondents' actions is violative of the freedom of speech and hence the Constitution of India,” the DNPA says.
The petition states that there already exist several rules that have been put in place to regulate content on legacy media houses and a mandatory requirement of complying with the IT Rules will lead to a situation of “over-regulation and unnecessary complication of a sector that is already well-regulated and compliant.”
“To now paint the said media houses in the same vein as 'digital media’ is wholly arbitrary as it seeks to impose onerous compliances on such media houses,” the DNPA adds.
The DNPA has accused the Union government of stifling the independence of the media as the Union government has effectively retained the last word on the content that is published by the media networks. This can have the grave and unintended consequence of controlling the content of such media houses, thereby affecting the freedom of press which is a guaranteed fundamental right under Article 19(1)(a) of the Constitution, the petition says.
The DNPA has also said that the rule making it mandatory for social media intermediaries to enable tracing of originators is vague and it may lead to intermediaries taking steps that will affect the right to privacy of users. “By mandating such compliances from the intermediaries, the Respondents are effectively seeking circumvention of industry standard encryption tools and creating a backdoor entry for themselves to monitor online activity of users,” the petition states.
The media houses have also said that the rules were passed without any discussions with stakeholders, they were not tabled in Parliament, and so they did not have the benefit of independent scrutiny and inputs, and the promulgation process was also opaque and ran contrary to the duty of the government to discharge its functions in a transparent, equitable, fair and just manner. The petition states that the rules provide a broad scope for misuse as it uses vague and subjective language in the Code of Ethics.
The petition adds that the three-tier mechanism to ensure adherence to the Code of Ethics effectively implies that the contravention of any law will not be tested by the judiciary, but by members of the executive. “This is, thus, in colourable exercise of power and a gross and mala fide attempt by the Respondents (Union government) to usurp the judicial powers, thereby violating the fundamental principles of separation of powers between the executive, judiciary and the legislature, as contemplated to be a part of the basic structure of the Constitution of India,” the Digital News Publishers Association has said.
Before moving the court, the digital arms of the traditional media entities had written to the Union government, seeking that they be excluded or exempted from the applicability of the rules. They had said that they have the same or common newsroom for the print, television and digital journalists, and the content created by them is already subjected to several uniform sets of guidelines and standards. However, the government turned down the request, stating that making any exception asked by the networks will be discriminatory to the digital news publishers who do not have a traditional TV or print platform.
“...since the Code of Ethics requires such digital platforms to follow the existing norms/content regulations which are in vogue for the traditional print and TV media, there is no additional regulatory burden for such entities. Accordingly, the request for exempting the digital news content of such organizations from the ambit of the Digital Media Rules, 2021, cannot be acceded to,” a response from the Digital Media Division of the Ministry of Information & Broadcasting said.
The government said that the rules have been framed after taking into account the various legal aspects and are consistent with the provisions of the parent Act — the Information Technology Act, 2000 — and added, “the apprehension of excessive governmental control through these mechanisms is misplaced.”