India’sInformation Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereafter IT Rules), seeks to regulate all Indian digital “publishers of news and current affairs content”. Everybody knew that the time for digital media’s (hereafter DM) regulation was nigh. The regulation is necessary, especially in light of the explosive burst of fake news during the pandemic. However, the IT Rules, as they currently are, raise a plethora of constitutional concerns and challenges.
Understanding Part III
Part III of the IT Rules 2021 prescribes“a Code of Ethics and three-tier grievance redressal mechanism”. This Code of Ethics requires that DM exercises “due caution and discretion” while publishing content that might affect the integrity of India or depict the activities, beliefs, practices or views of any religious or racial group. A grievance can be filed by any member of the public if they believe that there is a violation of the code. All DM platforms are required to appoint a “grievance officer” to deal with the said complaints (Tier 1- “Self-regulation by the publisher”). However, what must be noted is the fact that the decisions of such an officer can be later reviewed by government registered self-regulating bodies (Tier 2- “Self-regulating body/bodies”). Most importantly, a charter on the operation of this body can be published by the government, and the bodies are legally bound to follow it. The government also has the authority to issue orders for DM to adhere to the code (Tier 3-“Oversight mechanism”). Besides these mechanisms, the Rules also grant the government an “emergency power” to pass interim orders to block any content (Rule 16). These orders also do not provide any opportunity for hearings against them. Thus, these Rules essentially grant the government power to guide DM to block, change or delete any content and also empower the government to control any grievance made against them. For example, if this article was published on an online news platform based in India, its very existence would depend on the mercy of the government. Unsurprisingly, the Rules have been challenged on various grounds by many petitioners across India.
Legal Challenges to Part III
Before analyzing the challenges, it is essential for us to note that the IT Rules are secondary legislation i.e. a form of delegated legislation. They have been made under the Information Technology Act, 2000 (hereafter IT Act) and have not been debated & discussed in the parliament. Now that we have an understanding of the basic nature of the Rules, let us move on to the challenges. The first important ground is that the IT Rules 2021 go beyond the scope of its parent act i.e. the IT Act. It has been argued that the intent of the IT Act is “to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication”. However, the IT Rules 2021 go beyond the same and regulate digital media. This is clearly against the landmark judgment of Ajoy Kumar Banerjee v Union of India (1984), according to which any subordinate legislation which is beyond the contemplation of their parent Act, becomes ultra vires the parent Act. Besides this, India already has The Press Council Act, of 1978 which exists to regulate newspapers and media. Another ground is that the IT Rules are in contravention of the Supreme Court of India’s judgment in Shreya Singhal v Union Of India (2015). The Court had struck down Section 66-A of the IT Act, which penalized content on the basis of being “offensive” or causing “annoyance” on the grounds of vagueness. It has been argued that the IT Rules 2021 bring back the impugned section via the Code of Ethics and by other terms such as “half-truths”, “good taste” etc. The IT Rules have also been challenged by DM platforms on the grounds of the Rules in totality causing a “chilling effect” on Article 19 (1) (a) of the Indian constitution i.e. the Fundamental Right of speech and expression. The freedom of the press is an integral part of the said Article, with the same being recognized in Express Newspapers (P) Ltd. v. Union of India (1986).
Current Status of Part III
As mentioned previously, Part III has been challenged by many parties, across various jurisdictions (according to the central government, there are a total of 19 petitions). To elaborate on the same, they have been challenged in at least 5 different High Courts across the nation i.e., Delhi (The Wire, Quint Digital Media Ltd, The Press Trust of India etc.), Madras (T.M. Krishna, Digital News Publishers Association), Bombay (Nikhil Mangesh Wagle, AGIJ Promotion Of Nineteenonea Media), Calcutta (Sayanti Sengupta) and Kerela (LiveLaw, News Broadcasters Association). The Central Government’s responses to the same, via counter counter-affidavits, has been that the relevant challenged Part of the Rules does not have a chilling effect on freedom of speech, as they do not impose any penalties on users. Furthermore, it has been argued that Part III substantially empowers users of digital platforms for seeking grievance redressal. However, the governments’ agreements are not necessarily being met favourably by the judiciary, as the Code of Ethics has already stayed at least two Courts. The Bombay High Court partially stayed Part III, while describing them as a “Sword of Damocles” over the public. Similarly, the Madras High Court also partially stayed Part III while highlighting that the same might lead to the disintegration of the fourth pillar of democracy i.e., the press.
The Rules have also raised numerous eyebrows internationally, with the UNHRC even penning an official letter to the Indian government, raising their concerns. The letter highlighted how the Rules vague and broad wording empowered them to not apply only to domestic media outlets, but also to international media outlets, bloggers, human rights defenders etc. They also noted that the Rules might lead to violation of Article 19 (2) of the International Covenant on Civil and Political Rights (freedom of expression), as they grant humungous regulatory power to the government without any balances against it, such as judicial review etc. It is inarguable that in light of the explosive spurt of fake news, there is an urgent need for regulating DM. However, the same must not be done via a set of Rules, and instead ought to be discussed and deliberated in the Parliament of India in a truly democratic fashion.
Author(s) Name: Kabir Singh (O.P. Jindal Global University, Sonepat)