"IT Act does not empower Govt to regulate digital media:" Journalist moves Bombay High Court challenging Information Technology Rules 2021

Mumbai Journalist Nikhil Mangesh Wagle has moved the Bombay High Court challenging the recently notified Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 issued under the Information Technology (IT) Act. (Nikhil Mangesh Wagle v. Union of India & Ors.).In his petition filed by Abhay Nevagi and Associates, Wagle has submitted that the IT Rules are arbitrary, illegal and contrary to the fundamental rights under Article 14, 19 and 21 of the Constitution of India and ultra vires the IT Act..Rule 7 dives excessive powers to the enforcement agencies to take action against intermediary making it liable for punishment under ‘any law for the time being in force’, Wagle stated in his petition.This provision, he contended, will have serious repercussions because criminal proceedings will be initiated in cases of defamation or on the grounds that religious sentiments were hurt."It gives the Compliance Officers with quasi-judicial powers of deciding what is/is not defamatory," Wagle submitted. .Wagle further submitted that the Rules provide excessive and arbitrary powers and discretion upon the executive authorities under the Oversight Mechanism, over and above what is provided by the IT Act. .Part III of the Rules deals with ‘Code of ethics and procedure and safeguard in relation to Digital Media’. The Part was issued in purported exercise of Section 87(2)(z) of the IT Act (Central government rule making power to issue safeguards for blocking of access by the public).Wagle submitted that neither Section 87 nor the IT Act as whole empowers the Union of India or the Ministry of Information and Broadcasting, Government of India to control/regulate of digital news media and OTT Platforms..Citing the provision dealing with "Due Diligence by Intermediaries and Grievance Redressal Mechanism" Wagle submitted that the provision arbitrarily extends the scope of Section 79 (dealing with intermediaries) of the IT Act.The plea said that the Rules are being used to foist manifestly onerous obligations on intermediaries for availing the "safe harbour protection" (exemption from liability). Wagle listed, inter alia, the following obligations imposed on the intermediary:Allowing government agencies to trace the origin of purported cyber security incident;Retaining user information on its computer resources for a period of 180 days after any cancellation or withdrawal of his/her registration; To proactively identify and censor any act or simulation in any way depicting rape, child sexual abuse or conduct etc..Wagle submitted that the Rules overruled the Supreme Court judgment in Shreya Singhal v. Union of India case.While Section 3(1)(d) of Rules provides for ‘actual knowledge’ in the form of an order by a court or by the appropriate government on one hand, Rules 3(2)(b) and 4(4) seek to put the onus of removing information/content on the intermediaries instead of doing the same upon receiving the ‘actual knowledge’, Wagle stated..He submitted that "traceability of end user or originator" is not possible in the present times due to the "end to end encryption". The Rules obligate a 'significant social media intermediary' providing services primarily in the nature of messaging to enable identification of ‘first originator’.Wagle argued that if the concept of originator of message is implemented same would amount to mass surveying which will compromise fundamental right of privacy..One of the grounds in the petition was also that the Rules contradict the well-acknowledged principle of net network neutrality. .Wagle's secondary contention was that the IT Act does not authorise the executive to bring in "sweeping changes" which had been brought into effect through delegated legislation.He added that the undue haste and lack of adequate consultation of all the stakeholders during an unprecedented pandemic also cast doubt on the intention of the executive.