IT rules rob press of its freedom: HC
The oversight mechanism by the govt may rob the media of its independence
MADRAS HC BENCH
CHENNAI: The Centre’s new Information Technology (IT) Rules could rob the media of its independence and the fourth pillar of the democracy may cease to exist, judges of the Madras high court said as they ordered on Thursday a stay on parts of the government’s new regulations, and restrained it from taking action against social media companies for now.
The IT Rules, notified in February, contain a host of new directions and liabilities for social media companies (also known as intermediaries), news websites and streaming content providers (also known as OTT services) such as Netflix and Amazon Prime.
On Thursday, the Madras high court became the third appellate court in the country to stall operations of rules pertaining to the last two – particularly two clauses contained under Rule 9 – subclauses 1 and 3. It also said action under Rule 3 and Rule 7, which deals with social media companies and their safe harbour status, cannot be taken until it decides on the petitions.
The court was hearing two petitions – one filed by Carnatic music vocalist TM Krishna and another by a set of 13 news websites as part of the Digital News Publishers Association (DNPA).
“Prima facie, there is substance to the petitioner’s grievance that the oversight mechanism to control the media by (the) government may rob the media of its independence, and the fourth pillar, so to say, of democracy may not at all be there,” the court of first bench of chief justice Sanjib Banerjee and justice PD Audikesavalu said, while staying the sub rules.
Sub rule 1 requires digital publishers to adhere to a code of ethics while sub rule 3 provides for a three-tier regulatory mechanism that is ultimately headed by the government.
On July 9, the Kerala high
court said the new rules appear to give “excessive powers” to “unreasonably and impermissibly” restrict the freedom of speech and expression of the media, and on August 15, a Bombay high court bench said these particular provisions were an intrusion into the rights to free speech and beyond the scope of the main law under which the rules have been framed, the Information Technology Act, 2000.
While the operation of these sections virtually amounted to have been put into suspension with the second order – the one by the Bombay high court on August 15 – the new order now covers more ground as it restrains the Centre from taking action by invoking either Rule 3 or Rule 7.
Rule 3 relates to the due diligence that social media intermediaries will need to carry out by ensuring certain types of content, such as those that are defamatory or false, do not stay on their platforms, while Rule 7 lays down the government’s power to remove what is known as safe harbour provisions. Safe harbour provisions essentially mean social media companies will not be liable for what users post on their platform.
On this, the court referred to the 2015 Supreme Court order (in the Shreya Singhal vs Union of India) and drew on the top court’s observation that “it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not”.
The Madras high court agreed with the present petitions that even though the petitions have not been brought by hosts of website platforms, social media platforms “are used by one and sundry and there is a genuine apprehension that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen”.
According to the court, action invoking either of these rules will be “subject to the results of writ petitions”.
The judges also note a second reason for passing a fresh order after the Bombay HC stay: “...there may have been no need to pass an independent order. However, it is submitted on behalf of the petitioners that notwithstanding the order passed by the High Court of Judicature at Bombay, which ought to have a pan-India effect, notices have been issued to the petitioners subsequently requiring the petitioners to adhere to, inter alia, the said Rules and Rule 9 thereof.”
The additional solicitor general, R Sankaranarayanan, representing the Union government agreed during the hearing that it would have a pan-India effect.
Presently, there are a total of 19 writ petitions pending across high courts and each emanate out of a unique set of circumstances, the Union ministry of electronics and information technology (Meity) told the Madras high court on August 25. On Thursday,
Meity spokesperson did not respond to requests for a comment. The ministry has separately moved the Supreme Court asking for all these petitions to be transferred to the top court. On September 3, the Supreme Court ordered for the government’s petition to be listed six weeks later.
Experts welcomed Thursday’s order. “This is the right legal and constitutional position taken by both courts,” said Gurshabad Grover, senior researcher at Centre for Internet Society. “If you look at the intermediary guidelines, and the digital media code were notified under sections 69A and 79 of the IT Act, 2000, both of them were applicable to what the IT Act called intermediaries. Whereas if we look at Rule 9, we will see that it is applicable to digital news publishers and online curated content platforms. The parent provisions were never meant to regulate these entities. Therefore, it is clearly a violation of both the power of delegated legislation given to the central government and the separation of powers. Because without a parent law that authorises this, the executive should not be regulating these entities,” he said.