The Kerala High Court has issued a notice to the Union Information and Broadcasting Ministry over its new IT rules and restrained it from taking action against legal news website LiveLaw under Part III of Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021. Part III pertains to ‘due diligence’ to be followed by websites, apps 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 High Court has stated that no coercive action can be taken against LiveLaw under this Section till this case is heard further and a response is received from the Union Ministry.
The High Court was hearing a writ petition filed by LiveLaw, seeking that the new IT rules be declared “illegal and violative” of fundamental rights as prescribed under the Constitution of India. The plea drafted by lawyers of the Internet Freedom Foundation, a group that defends online freedom, privacy and innovation in India.has stated that the new rules violate Articles 13, 14, 19(1)(a), 19(1)(g), and 21 of the Constitution.
The plea filed in the High Court by LiveLaw said that the new IT rules will lead to the exercise of judicial functions by non-judicial authorities, and that the rules are an attempt to overrule the effect of the judgment passed by the Supreme Court in 2015 while it struck down Section 66-A of the IT Act. Section 66-A had criminalised sharing of “offensive information” online and was punishable with a maximum of three years in jail and with a fine. The SC judgment had also provided intermediaries immunity from orders to take down content and had given them the option to clarify when the content was questioned.
The plea stated that a section of the rules imposes an “unconstitutional” three-tiered complaints-and- adjudication structure upon publishers, which “makes the executive both the complainant and the judge on vital free speech questions involving blocking and take down of online material.”
“This is both arbitrary and violates the rule of law and separation of powers, especially since there is no provision for the aggrieved publishers to appeal,” the petition adds. It also states that the rules impose a “disproportionately onerous set of administrative regulations” upon digital news media, which will make it virtually impossible for small or medium-sized publishers, such as LiveLaw itself, to function.
The petition states that as a small publisher that reports judgments, the rules can have “chilling effect” on not only to the opinions published but also to its factual reporting and live- reporting of court proceedings.
The plea added that the rules will allow individuals with ‘vested interests’ to file ‘baseless complaints’ and even if the complaints do not end up in action against the news publisher, it will be a financial and resource burden on the media outlets. Under the new rules, the publications are required to respond to the complainants in 15 days, and have to defend themselves before multiple forums. In order to avoid this, “the impugned Rules would effectively force small Digital News Media entities to self-censor than publish any controversial or critical speech, regardless of its permissibility under law,” the plea says.
“Part III (of the rules) requires publishers to comply with a Code of Ethics that is both vague and overbroad in its formulation, and seeks to proscribe constitutionally protected speech. The net effect of Part III, it is respectfully submitted, is to cause a chilling effect upon entities such as the Petitioners, in the exercise of their constitutional rights under Articles 19(1)(a) of the Constitution, and to disproportionately infringe their rights under Articles 19(1)(g) and 21 of the Constitution,” the plea adds.
The plea adds that digital news media outlets such LiveLaw itself may be forced to self-censor content that even appears to stray close to the prohibited line (while being fully legal) rather than publish the content and risk legal consequences.
The plea added that the new rules go above and beyond the scope of the parent Act — the Information Technology Act, 2000, and that the Information and Broadcasting Ministry “cannot, under the garb of making Rules, legislate on the field covered by the parent Act, and must restrict itself to the mode of implementation of the policy and purpose of the Act.”
Appearing for LiveLaw in the Kerala High Court on Wednesday, counsel Santosh Mathew told a single judge bench of Justice PV Asha, “We (LiveLaw) are reporting judgments. Somebody to whom the judgment is not palatable, may make a grievance, and we are required to sit in appeal over the content. After that, a self-regulatory body, which is at the mercy of the central government, will sit in judgment.” He added, “We cannot be prosecuted because of somebody sitting in Delhi deciding the so-called ethical standards.”
Appearing for the Union government, counsel Suvin Menon said, “The publisher (LiveLaw) should have a responsibility. What should be reported must be the true meaning of the judgment. They themselves can self-regulate,” he added.
LiveLaw’s counsel told the court that they are not seeking a stay on the rules but only seeking an interim order to protect from coercive action under the rules.
Admitting LiveLaw’s plea, the Kerala High Court restrained the Union government from taking any action under the new rules. The High Court also issued a notice to the government seeking a response on the plea.
“The petitioner is a publisher of law reports and legal literature. The respondents shall not take any coercive action against petitioners with reference to provisions contained in Part 3 of IT Rules,” Justice Asha said in her interim order.
This is the second petition filed in a High Court against the Union government’s new IT rules. On Tuesday, the Delhi High Court heard a plea filed by the Foundation of Independent Journalism, The Wire's Founding Editor MK Venu, and The News Minute Editor-in-Chief Dhanya Rajendran against the new rules, and issued a notice to the I&B Ministry.