IT Rules 2021 within scope of IT Act, seeks to prevent misuse of freedom of press; no proof to show chilling effect: Centre to Delhi High Court

The Central government has asserted before the Delhi High Court that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) is well within the scope of the Information Technology Act (IT Act), 2000, that it is does not infringe any fundamental rights and that there is little evidence to show that they have had a chilling effect on the right to freedom of speech..These submissions were made in a reply running into about 150 pages, filed in response to petitions challenging the validity of the IT Rules, 2021, particularly the Code of Ethics under Part III applicable to publishers of news and current affairs on digital media..These Rules have been challenged by the Foundation for Independent Journalism which also publishes "The Wire", the Foundation's director and The Wire Founding Editor, MK Venu and Dhanya Rajendran, the Editor-in-Chief of The News Minute. Petitions challenging the Rules have also been moved by The Quint, AltNews and the Press Trust of India in the Delhi High Court. .The reply has been filed through Amarendra Singh, the Deputy Secretary to the Government of India in the Ministry of Information and Broadcasting..Highlights of the Central government’s reply.IT Rules, 2021 are within the scope of the IT Act, 2000.The Preamble of the IT Act indicates that transactions carried out through "electronic communication" are within the scope of the Act. “Transactions” are not applicable to commercial transactions. Similarly, the application of concepts in the Act such as "electronic record", "data", "information", etc. are not limited to only commercial transactions or contracts over the internet. Rather, they are defined widely to include various forms of media content which are exchanged over the internet. Transactions would also cover informational transactions happening over the internet through exchange of electronic records which are in he nature of news and current affairs content published by entities in the course of systematic business, professional or commercial activity, the Centre contends. The legislative intent behind the IT Act includes the “recognition and institutionalisation of media content in the digital space.” The scope of the Act extends to media content used for electronic communication. Part III of the IT Rules, 2021 is limited to "news and current affairs content" and "online curated content", and is therefore well within the scope of the Act. It is also contended that the IT Act already has several provisions dealing with media content published or transmitted in the electronic form, including - Section 11, Section 66A (which was struck down by the Supreme Court in Shreya Singhal’s case, but, which the Centre submits indicates that the legislative intent behind the Act has been to regulate media content on the internet), Sections 67, 67A, 67B, 69, 69A, 69B and 79 (3)(b). In this regard, Lok Sabha debates preceding the enactment of the IT Act, 2000 is also referred to, including speeches mentioning “digital communication”, “e-communication”, the impact of the propose law on digital news entities etc. Further, reference is also made to the Delhi High Court’s ruling in Justice for Right Foundation vs Union of India wherein, the Court declined to issue certain directions in 2019 on the ground that there already exist stringent provisions under the IT Act for taking action in case of violation of the Act or Rules framed thereunder. The IT Act recognises both private and public communication. Just like ordinary users, publishers on digital media are also involved in public communication, albeit with a relatively much larger impact. Therefore, an argument which claims that the scope of the IT Act includes content published by ordinary users, but does not include content published by well organised commercially oriented news publishers or OTT platforms, publishing content as a systematic business, professional or commercial activity, may not be legally tenable. It is added that the subjects "News and current affairs content on online platforms” and "Films and Audio-Visual programmes made available by online content providers" lie within the administrative ambit of the Ministry of Information and Broadcasting (MIB). From the perspective of both scope of the IT Rules, as well as administration of the Rules, Part III is well within the legislative competence of MeitY to make such subordinate legislation. In this regard, Section 87(1) of the IT Act is also cited. The IT Rules 2021 resolves an ambiguity over the institutional mechanism for digital entities. Part III of the Rules, dealing with public communication by publishers of news and current affairs content, would be administered by the MIB utilising the authority delegated by MeitY under the IT Act..IT Rules 2021 seeks to curb fake news, misuse of of freedom of press etc. The “Statement of Objects and Reasons” of the IT Act itself states that it is intended to “prevent possible misuse” arising out of transactions and other dealings concluded over the electronic medium. The State has a responsibility to ensure fairness within the digital media ecosystem which involves publishers of content on one hand and the audience on the other. Dissemination of correct information lies at the heart of democratic discourse. Misuse arising out of exchange of information in the digital media space has direct implications for democratic rights of citizens. Disinformation, or simply fake news, on digital media may lead to violation of other fundamental rights of the audience, including the violation of the right to dignity through defamation; violation of the right to privacy through unlawful depiction in the media, violation of the right to life and personal liberty through disturbance of public order, etc. While the right to freedom of speech and expression, including he freedom of press, is critical for a vibrant democracy like India, the rights of the audience who believe and act upon misleading news cannot be overlooked. Citizens cannot be treated as passive consumers without any recourse to participation in the process of accountability with respect to content being published. Referring to a UNESCO handbook titled “Journalism, Fake NCHls and Disinformation” (2018), it is highlighted that reporters are increasingly required to “sub-edit and publish their own content without appropriate review”, that digital-first deadlines heightens the risk of errors and that social-first publishing (live-tweets, Facebook Live etc.) which do not necessarily involve editorial oversight potentially results in a 'publish first, check later' mindset. An economic environment marked by competition for eye-balls and a regulatory vacuum with respect to the content on digital media has led to spread of fake news and other potentially harmful content without any accountability of digital news publishers, it is submitted. The Centre also cites the Supreme Court’s observations in the case of Alakh Alok Srivastava vs. Union of India, wherein the Court had taken critical note that mass migration of migrant workers during the COVID-19 pandemic was fuelled by fake news. In the same case, the Court had added “we expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated.”.IT Rules, 2021 address the lack of guidelines applicable to digital entities.Before the notification of the IT Rules, digital news media was largely unregulated. In the absence of guidelines for digital media, an existing set of guidelines, which have been time-tested with respect to print and electronic media, are applicable to news and current affairs content on digital media as well. In this regard, the IT Rules, 2021 makes applicable the existing Norms of Journalistic Conduct and the Programme Code to digital entities. A reference is made to the case of Nilesh Navlakha vs Union of India, in which the Bombay High Court has emphasized that in the absence of guidelines or standards with respect to the reporting of deaths by suicide in the electronic media, the norms of journalistic conduct framed by the Press Council of India for the print media “ought to be extended to cover the electronic media till such time appropriate guidelines are framed for the electronic media by the appropriate authority.” The absence of any guidelines could lead to the dignity of the dead being breached with impunity, the High Court had observed in the said case, which pertained to media coverage on the death of actor Sushant Singh Rajput. It is also noted that there are already general provisions of the Indian Penal Code applicable to media, prohibiting certain kinds of content. The Code of Ethics does not apply any new restrictions but only reiterates that the content which has already been prohibited under any law for the time being in force not to be published on digital media, the Centre says..IT Rules, 2021 seeks to ensure a level playing field between traditional and digital media.The establishment of a separate institutional mechanism for dealing with media content on the internet is not violative of Article 14 of the Constitution (right to equality). The reach and audience of digital media is far wider as compared to traditional media platforms, the Centre highlights. This also means that the risk of false or misleading information is also greater over the internet. Digital media also does not have the level of investment, infrastructural and logistical requirements that traditional media outlets do. Online platforms have transformed consumers into producers as well (“prosumers”). The "gatekeeping" function performed by the traditional news outlets has been considerably diluted due to the emergence of user generated content, it is added. In this backdrop, there is a substantial difference between traditional (print and TV) media and digital media. Any contention that digital news publishers are similar to newspapers is flawed and superfluous. While so, the Centre also highlights that there are some aspects in which the digital media arms of traditional news publishers are similar to digital standalone news publishers. Traditional print media outlets often share pictures and graphics on their websites and social media handles which do not make it to the print version. Similarly, the text, headline, short description or image used by traditional media entities for content on digital media is, in many cases, different from those used in the newspaper or television. Many traditional newspapers often run a live page of breaking news stories on their apps and websites. These pages have minute-by-minute updates of a breaking news story. All such updates in the feed may not necessarily make it to the printed newspaper, it is noted. Therefore, making any exception of the nature proposed by Digital News Publishers Association through its various representations would be discriminatory to the digital news publishers that do not have a traditional TV/print platform, and violative of Article 14 of the Constitution. Digital media is in an agnostic format comprising all forms of text, image, audio, video, voice or a combination. The inclusion of Norms of Journalistic Conduct and the Programme Code within the Code of Ethics under the IT Rules, 2021 would guide digital news publishers with respect to production of all formats of news and current affairs content, and create a level playing field between traditional media entities and digital news publishers, while bringing a sense of professionalism as well as responsibility for sustainable growth of the digital news industry. The Code of Ethics under the Rules merely extends the existing standards and norms of traditional news media to apply for digital news publishers, without providing for any new restrictions or regulations. Such application of existing time-tested legal norms to be followed by digital media would not constitute an intrusion into the fundamental right to freedom of speech and expression of digital news publishers..IT Rules 2021 do not amount to “chilling effect”, government surveillance.The IT Rules, 2021 establish a civil mechanism of grievance redressal related to the Code of Ethics. Such a mechanism is bereft of any police powers. The entire grievance redressal procedure is civil in nature, and any decision regarding violation of the Code of Ethics does not lead to any criminal punishment. No evidence has been presented to show that the IT Rules, 2021 have led to self-censoring or a chilling effect on free speech, as contended by the petitioners. Reliance is placed on the ruling in Anuradha Bhasin vs Union of India to recount the Supreme Court’s observation that within evidence to show that there is a chilling effect on freedom of press, it remains speculative and “impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose." No evidence has been presented to the government showing that the IT Rules have led to a large number of grievances being filed. Multiple grievances related to a particular content can also be clubbed together and redressed through a single decision. Content produced by some news publishers over a 30-day period before and after the notification of the IT Rules, as well as during a more recent 30-day period from June 9 2021 to July 8, 2021, shows that there has not been any significant change in the production of content. The analysis shows that there has been no discernible impact on the production of content by these entities even after the notification of the Rules. In the case of many entities, the production of content has increased. There exists no factual evidence to indicate that the obligations require any significant diversion of resources by the publishers that may have impacted production of news and current affairs content by the news publishers. Over 1,800 digital media publishers, (over 97% of them being publishers of news and current affairs content), have appointed a Grievance Redressal Officer (Level-I), and furnished their information to the Ministry. None of these publishers have expressed any difficulty arising out of the number of grievances which are being received/redressed by them. The publishers have the liberty to appoint any of their existing employees as the Grievance Redressed Officer for the purpose of the Rules. Moreover, in relation to Level II of the grievance redressal mechanism, many publishers have also expressed their willingness to constitute their self-regulatory bodies. Based on these statistics, it is submitted that the argument of chilling effect on freedom of the press or an adverse impact on the right to conduct business due to allegedly onerous obligations under the Rules is largely an emotive appeal, and is not legally tenable. The IT Rules, 2021 contain no provision for monitoring of content of the digital media publishers by the government or any other body. The institutional framework established through Part III deals with publicly published content. Therefore, the question of surveillance does not arise. In this regard, there is no control of the government over the content published by the news media. The information sought is very basic to the entity, and in many cases already published by the entity in the public domain. Mere furnishing of information to the Government for explicitly laid out purposes does not imply interference or control of the government over the functioning of the news media entity. The provisions related to the grievance redressal mechanism under the IT Rules, 2021 are in consonance with the spirit of the public's right to know under the right to free speech and expression..On provisions relating to blocking, deletion or modification of digital content.Whereas the Inter-Departmental Committee under the Rules can recommend blocking of content on the internet, it can only do so on grounds already mentioned in Section 69A of the IT Act, as upheld in the Shreya Singhal case. These grounds include sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence etc. There is a dual safeguard of a multi-member committee and approval of the Secretary, MIB when it comes to the rare situations which may require modification, deletion or blocking of content. Further all safeguards laid down by the Supreme Court in Shreya Singhal’s case in relation to blocking, deletion or modification of content has been retained in Part III of the IT Rules, 2021. The provisions relating to blocking of content published by a publisher of news and current affairs content, whether on social media platforms or on its own interface, is not a new provision, and is well within the scope of the Act..On these grounds, the Centre has urged the High Court dismiss the challenge to the validity of the IT Rules, 2021.