The Bombay High Court on Saturday stayed the implementation of Rule 9 (1) and (3) of the recently-notified Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021, reported Bar and Bench. The provisions deal with the code of ethics under the new IT rules.

A bench of Chief Justice Dipankar Datta and Justice GS Kulkarni observed that the provisions were an intrusion on the right to freedom of speech and expression and beyond the substantive law of Information Technology Act that is in effect since 2009.

The Centre had notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, under the Information Technology Act, 2000, on February 25. The rules, which were enforced from May, regulate social media companies, streaming and digital news content, virtually bringing them, for the first time, under the ambit of government supervision.

Rule 9 (1) says that digital media content publishers must observe and adhere to the code of ethics in the IT guidelines. Rule 9 (3) provides a three-tier structure to address the grievances made in relation to publishers to ensure that the code of ethics is followed.

The High Court, however, did not stay the implementation of Rule 9 (2) that deals with action against publishers when they are in contravention of the law.

The pleas before the High Court were filed by digital news website The Leaflet and journalist Nikhil Mangesh Wagle, seeking an interim stay on the new IT rules till their petitions are decided.

The petitioners argued that new IT rules were in contradiction to the fundamental rights under Articles 14 (equality before law), 19 (freedom of speech and expression) and 21 (protection of life and personal liberty) of the Indian Constitution.

On Saturday, the bench also refused to stay the Rules 14 and 16 of the IT guidelines.

Rule 14 deals with the formation of an inter-departmental committee as an oversight mechanism for digital media. The committee can recommend the Ministry of Information and Technology to initiate action against publishers based on grievances. Rule 16 deals with the powers of the government to block content “in case of an emergency”.

In its order, the High Court noted that there was no need to stay Rule 14 as no inter-departmental committee has been formed yet. The bench, however, allowed the petitioners to approach the High Court when the committee is put in place.

On Rule 16, the High Court observed that the provision was similar to Rule 9 of IT Rules, 2009, reported Live Law. It noted that the petitioners have not made any grievances against the 2009 rules and refused to stay the provision.

During the hearing, Additional Solicitor General Anil Singh argued that no action has yet been taken against any person under the new rules. Singh also argued that the rules were notified to check the spread of fake news and legally prohibited content.

Senior Advocate Darius Khambata, representing The Leaflet, argued that the new rules were unconstitutionally restricting the freedom of the press. He said that the rules were “seeking to effectively monitor and censor speech in the internet by a different Ministry, the most draconian law on free speech of recent times”.

In its order, the bench said that criticism of those working for the government was healthy for the structured growth of the country but with the new rules, citizens have to think twice before doing so.

“Dissent in democracy is vital,” the order said. “It is, however, the checks and balances that make democracy work. There can be no two opinions that a healthy democracy is one which has developed on criticism and acceptance of contra views. Opinion based on criticism reinforces its acceptance in a democratic society.”

The court held that with the rules in place, a news organisation can be exposed to punishment even when their content is within the parameters of reasonable restrictions imposed under Article 19(2) of the Constitution that deals with freedom of speech and expression.

“The indeterminate and wide terms of the Rules bring about a chilling effect qua the right of freedom of speech and expression of writers/editors/publishers because they can be hauled up for anything if such committee so wishes,” it said. “The 2021 Rules are, thus, manifestly unreasonable and go beyond the IT Act, its aims and provisions.”

The High Court added:

“Rule 9 also prima facie appears to be infringing the constitutional guarantee of Freedom of Speech and Expression as conferred by Article 19(1)(a) in subjecting the publishers of newsand current affairs content and publishers of online curated content subject to action under the statutory regime of the Press Council Act and the Cable TV Network(Regulation) Act, which provides for an independent mechanism for any violation of the provisions of such legislation. We prima facie find much substance in the contentions as urged on behalf of the petitioner that such transgression of powers occupied by different legislations cannot be disrupted by a subordinate legislation”.

— Bombay High Court

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