Madras High Court admits another challenge to IT Rules, 2021; Plea moved by Digital News Publishers Association, Journalist Mukund Padmanabhan

The Madras High Court on Wednesday issued notice in a writ petition moved by the Digital News Publishers Association, comprising thirteen media outlets and journalist Mukund Padmanabhan challenging the constitutional validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021).

A Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy has tagged the writ petition along with a pending plea moved by Carnatic musician TM Krishna, which was admitted earlier this month.

The Court has also granted the petitioners liberty to approach the Court for interim relief if any coercive action is taken against them invoking Rules 12, 14 and 16 of the IT Rules, 2021.

The first petitioner in the latest challenge i.e. the Digital News Publishers Association comprises:

1. ABP Network Private Limited,

2. Amar Ujala Limited,

3. DB Corp Limited,

4. Express Network Pvt Ltd,

5. HT Digital Streams Limited,

6. IE Online Media Services Pvt Ltd,

7. Jagran Prakashan Limited,

8. Lokmat Media Private Limited,

9. NDTV Convergence Limited,

10. TV Today Network Limited,

11. The Malayala Manorama Co (P) Ltd,

12. Times Internet Limited, and

13. Ushodaya Enterprises Private Limited.

Appearing for the petitioners, Senior Advocate PS Raman today urged the Court for interim relief, restraining the operation of Rules 12, 14 and 16 against the petitioners. The Court recorded the petitioners' submission that there is sufficient basis for the petitioners' apprehension that coercive and arm-twisting action may be taken under such provisions.

In arguments today, Raman noted that TM Krishna's plea challenging the IT Rules, 2021 focused substantially on the right to privacy. On the other hand, in the instant case, the media was concerned with how it is affected by Rules 12, 14 and 16 of the IT Rules 2021, he told the Court.

He submitted that while the media is quite comfortable with implementing a self-regulatory mechanism as contemplated by the Rules, it is concerned by the inter-departmental body envisaged under Rule 14.

The self-regulory body for media outlets envisaged by the Rules is to be chaired by a former Supreme Court or High Court Judge. However, Raman pointed out that the inter-departmental body under Rule 14 to which appeals against decisions of the self-regulatory body go, is comprised entirely of bureaucrats.

Concern was also raised over Rule 16 (Blocking of information in case of emergency), which Senior Advocate Raman pointed out was a "Henry the VIIIth", "omnibus" provision.

The Court, however, opined that there is no need to issue an omnibus interim order at this stage since no coercive action has been taken against the media outlets as of yet.

"Since no adverse action has been initiated against the petitioners as of now, no omnibus order made at this stage. However if such provisions are resorted to agains the petitioners, petitioners will be at liberty to apply for interim relief", the order stated.

The matter has been listed for further hearing in three weeks. The respondents have been asked to file their counter by two weeks time.

Highlights of the Petitioners' contentions include:

• The IT Rules, 2021 seek to legislate the conduct of entities which are not even within the scope of the Information Technology Act, 2000.

• The IT Rules, 2021 transgress the provisions of the Information Technology Act, under which the rules have been passed.

• The IT Rules, 2021 seek to curb the freedom of speech and expression, as well as the 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 IT Rules, 2021 seek to usher in an era of surveillance and fear, thereby resulting in self-censorship, which curtails the fundamental rights under the Constitution of India.

• The Centre has wrongfully and arbitrarily classified “legacy media houses" involved in television and print media as part of “digital media” to bring such traditional media houses under Part III of the IT Rules, 2021 (Code of Ethics and Procedure and Safeguards in Relation to Digital Media).

• The IT Rules impose arbitrary, unjustified, undue and unfair oversight into the acts of these medial outlets, it is contended. The power which the IT Rules seeks to confer on the government is arbitrary, untrammelled and in violation of Article 14 of the Constitution (right to equality), the petition stated further.

• Media houses part of the Digital News Publishers Association have existed since before the advent of the internet and are subject to multiple laws and regulations such as the Press and Registration of Books Act, the Contempt of Courts Act, the Parliamentary Proceedings (Protection of Publication Act), Copyright Act, Defence of India Act, Press Council Act, Newspaper (Prices and Pages) Act, Drugs and Magic Remedies Act, Cable Television Networks (Regulation) Act, Indian Telegraph Act, Indian Penal Code and the Code of Criminal Procedure.

• The Code of Ethics under Part III intends to regulate content on the basis of undefined, vague and subjective standards such as “half-truths”, “good taste”, “decency” etc. which provide a broad scope for misuse by the authorities. It is argued that the Supreme Court had earlier struck down Section 66A of the Information Technology Act, 2000 given the use of such abstract terms.

• Part II of the IT Rules, 2021 (Due diligence by intermediaries and grievance redressal mechanism) is ant ethical to fundamental rights. By these provisions, private intermediaries are vested with excessive power in shaping the discourse of speech in the country. In particular, Rules 3(2)(b), 2(1)(d), 4 (2), 4(4) are cited. The petitioner raises concern over intermediaries becoming trigger-happy to pull down content by keeping a low threshold for complaints received over the content, self-censorship, lack of opportunities for users to be heard before content is taken down, curtailment of free speech through “automated tools”, infringement of the privacy of users etc. The stringent timelines forced under Part II incentivise intermediaries to over-censor content, thereby curbing free speech, the petitioners add.

• The overarching IT Rules, 2021 were passed without any consultation with the legacy media houses, who area among the most relevant stakeholders.

• Inter alia, objection was also registered against Rules 18 (3) and 19 (3), which requires the publication of a monthly compliance report. The petitioners contended that these provisions would have a chilling effect on free speech and, thereby, violated Article 19 (1) (a) of the Constitution.

In this backdrop, the petitioners have urged the High Court to declare the IT Rules, 2021 as violative of Articles 14 and 19 (1) (a) of the Constitution of India.

[Read Order]