Bombay HC's interim relief in IT Rules 2021 will be applicable pan-India: Madras HC

Last month, the Bombay HC ordered an interim stay on the provisions of IT Rules 2021, including the Code of Ethics that have to be followed by digital news media and online publishers

e4m by exchange4media Staff
Published: Sep 18, 2021 8:38 AM  | 6 min read

Digital news publishers across India can heave a sigh of relief as the Madras High Court has observed that the order passed by Bombay High Court in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 case will have a pan-India effect.

The Madras High Court made this observation while passing an order on petitions filed by vocalist TM Krishna and Digital News Publishers Association (DNPA) against the IT Rules 2021. The Additional Solicitor-General representing the Union of India has also accepted that the Bombay HC order will indeed have a pan-India effect.

"Nothing more need be said on such aspect of the matter since the High Court of Judicature at Bombay, by an order dated August 14, 2021, has stayed the operation of sub-rules (1) and (3) of Rule 9 of the said Rules of 2021. Indeed, 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 Madras High Court said in its order.

The bench of Chief Justice Sanjib Banerjee and Justice P D Audikesavalu also noted, "It must be recorded in all fairness that learned Additional Solicitor-General, representing the Union, accepts that the order passed by the High Court of Judicature at Bombay would have pan-India effect."

Last month, the Bombay High Court had ordered an interim stay on the provisions of IT Rules 2021, including the Code of Ethics that have to be followed by digital news media and online publishers. While partial granting interim relief to petitioners The Leaflet and journalist Nikhil Wagle, the high court said that the Sub-clauses 1 and 3 of clause 9 of the new rules were “manifestly unreasonable”, and "the indeterminate and wide terms of the rules bring about a chilling effect qua (regarding) the right of freedom of speech and expression of writers/editors/publishers" as they can be hauled up for anything if authorities so wish.

TM Krishna and DNPA have challenged the rules is on the ground that they are ultra vires, inter alia, Articles 14 and 19 of the Constitution. Digital news players fear that the oversight mechanism of the three-tier grievance redressal mechanism will give unbridled powers to the bureaucrats to take action against digital news platforms. The three-tier grievance redressal mechanism comprises, (a) Level I - Self-regulation by the publishers; (b) Level II - Self-regulating bodies of the publishers; and (c) Level III - Oversight mechanism by the Central Government.

"The petitioners are wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation. Prima facie, there is substance in the petitioners' grievance that an 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 bench said.

It is also recorded that the matter had been adjourned previously on the ground that transfer petitions had been filed before the Supreme Court. "However, it does not appear that any order has been passed by the Supreme Court on the transfer petitions or there is any legal impediment to the present petitions being taken up by this court."

The IT Rules 2021 have been challenged before Delhi, Bombay, Madras, and Kerala High Courts. The centre has filed a transfer petition in Supreme Court to transfer all the IT Rules cases from the High Courts to the apex court.

The bench noted that the other ground of immediate challenge, which is not covered by the order of the High Court of Judicature at Bombay, pertains to Rules 3 and 7 of the impugned Rules. The petitioners' particular grievance is to the incorporation of sub-clause (x) of Rule 3 (1) (b) that provides as follows: "(x) is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person;"

"The petitioners point out that along with the obligation imposed on the intermediary under Rule 3 (1) (c) to terminate the access or usage rights of users for non-compliance with the provisions of Rule 3 (1) (b), the provisions for grievance redressal have been made stringent and, finally, Rule 7 has been incorporated making an intermediary liable for punishment upon the intermediary failing to observe the said Rules," the bench observed.

The Additional Solicitor-General submitted that Rule 3 of the present Rules are on similar lines as Rule 3 of the 2011 Rules. However, the bench pointed out that there appear to be key changes, particularly the introduction of sub-clause (x) in clause (b) of sub-rule (1) thereof and the additional obligation on the intermediary in, inter alia, clause (c).

The bench stated that any host of a website or platform would be an intermediary, and an ordinary person may be denied access to the platform on the ipse dixit of the intermediary or on the intermediary's apprehension that such intermediary may be proceeded against.

"Accordingly, if there is any action taken in terms of Rule 3 of the said Rules read with Rule 7 thereof during the interregnum, it will abide by the result of the petitions and further orders herein," the order reads.

According to the HC, the Section 79 of the Information Technology Act, 2000 grants exemption from liability to intermediaries in certain cases. However, by virtue of Section 79 (2) (c), the exemption would not apply if the intermediary is found not to have observed "guidelines as the Central Government may prescribe in this behalf".

"In the light of the Supreme Court judgment reported at (2015) 5 SCC 1 (Shreya Singhal v. Union of India), wherein Section 79(3)(b) of the Act has been read down and it has observed therein that unlawful acts beyond what is laid down in Article 19(2) of the Constitution “obviously cannot form any part of Section 79” of the Act, there is substantial basis to the petitioners' assertion that Article 19 (1) (a) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries," the bench stated.

The Supreme Court had observed, at paragraph 122 of the report, 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".

Though the petitions have not been brought by hosts of website platforms, social media platforms on the website are used by one and sundry and there is a genuine apprehension, as the petitioners' suggest, that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen, the bench said.

Since counter-affidavits have been filed, and it is submitted by learned Additional Solicitor-General that the main matter is likely to be taken up by the Supreme Court in early October 2021, the HC has posted the matters in the last week of October 2021.

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