HC STAYS CLAUSES OF IT RULES THAT MANDATE CODE OF ETHICS FOR DIGITAL MEDIA
MUMBAI: The Bombay high court on Saturday stayed two clauses of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 that required publishers of online news portals, online news aggregators, etc to observe the code of ethics and provided a three-tier mechanism for ensuring compliance.
A division bench of chief justice Dipankar Datta and justice Girish Kulkarni declared that Rule 9(1) and Rule 9(3) were prima face an intrusion on the freedom of speech and expression and also went beyond the scope of substantial law — the Information Technology Act, 2000 — under which the rules were made by the ministry of electronics and information technology.
MUMBAI: The Bombay high court on Saturday stayed two clauses of the IT (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 that required publishers of online news portals, online news aggregators, etc to observe the code of ethics and provided a three-tier mechanism for ensuring compliance.
A division bench of chief justice Dipankar Datta and justice Girish Kulkarni declared that Rule 9(1) and Rule 9(3) were prima facie an intrusion on the freedom of speech and expression and also went beyond the scope of substantial law — the IT Act, 2000 — under which the rules were made by the ministry of electronics and information technology. Rule 9(1) required the publishers to observe
the code of ethics laid down under the rules, and Rule 9(3) provided for a three-tier mechanism — selfregulation by the publishers, selfregulation by self-regulating bodies of the publishers and oversight mechanism by the Centre — for ensuring observance of the code and addressing grievances.
The order came on public interest litigation filed by journalist Nikhil Wagle and a writ petition filed by digital news portal The Leaflet, contending that the rules were arbitrary and infringed the constitutional right to freedom of speech and expression.
Senior advocate Darius Khambata and advocate Abhay Nevagi argued on behalf of the petitioners that since the IT Act of 2009 had sufficient provisions to make publishers, news portals and intermediaries accountable for posting any objectionable content and liable for penal action, the new rules tried to supersede the Act and hence were not legally tenable.
The Centre, however, defended the rules. Additional solicitor general Anil Singh, for the Centre, submitted that the new rules were introduced to bring under control the spread of fake news and illegal content. He added that the concerns of the petitioners regarding Rule 14 and 16 were unfounded as the ministry-level committee was yet to be formed.
The court accepted the arguments advanced on behalf of the petitioners and stayed two clauses of Rule 9. It, however, did not pass orders with regard to Rule 14 and 16, which deal with the formation of a ministry-level panel and blocking of content in case of an emergency. It allowed the petitioners to approach the court as and when the same were constituted and asked the Centre to file a detailed reply within three weeks.
The court also did not stay the operation of Rule 7 which stipulates that when an intermediary fails to observe the new rules, the provisions of Section 79(1) of the IT Act shall not be applicable to them and they shall be liable for punishment under any law, including the provisions of the Act and the IPC. Section 79(1) stipulates that “an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him”. This implies that an intermediary can be held liable for action under the new rules for processing, storing, hosting or transmitting any third party information, data or communication that is objectionable.
HC SAYS THAT RULE 9(1) AND RULE 9(3) ARE PRIMA FACIE AN INTRUSION ON THE FREEDOM OF SPEECH AND EXPRESSION