DNPA challenges intermediary rules in Madras HC

The division bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy has issued notice to the Union of India

e4m by exchange4media Staff
Published: Jun 23, 2021 8:28 PM  | 5 min read

The Digital News Publishers Association (DNPA) has challenged the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 in the Madras High Court.

According to reports, the division bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy has issued notice to the Union of India (UoI) and has granted liberty to DNPA to approach the court if any coercive action is taken by the government.

Appearing for DNPA, Senior Counsel PS Raman contended that along with Rule 12 and 14, rule 16 provides omnibus power to the Secretary, Union Ministry of information and Broadcasting to block public access to any digital information unilaterally and is bound to affect the functioning of the media and press.
The DNPA has been formed by the digital arms of Dainik Bhaskar, India Today Group, NDTV, Hindustan Times, Indian Express, The Times of India, Amar Ujala, Dainik Jagran, Eenadu, and Malayala Manorama.

The association argued that the online news websites of print and TV companies do not come within the purview of IT Rules. It further stated that the union government has wrongfully and arbitrarily classified legacy media houses involved in television and print media as part of 'digital media'.

Further, the DNPA plea states that the Part III of the Rules imposes an arbitrary, unjustified, undue and unfair oversight into the acts of the Petitioner No.1's member media houses, which opens the door to suppressing freedom of speech and the independence of news media in the country, which has been upheld by the Supreme Court in various judgments.

It also contended that the 'publisher of news and current affairs content' is governed by Part III of the IT Rules 2021, however, 'newspaper' are not governed by the IT Rules 2021. This, the DNPA, said means that some of its members would not be governed by the IT Rules 2021 if they only published newspapers.

"But by making available, inter alia, the same content on a digital platform, they ought to be governed by the IT Rules 2021. Therefore, the IT Rules 2021 have created a distinction that is vague and arbitrary, and which has no reasonable or rational nexus with the purported object which it purportedly seeks to achieve," the DNPA plea stated.

Another argument put forth by the DNPA is that the Rule 3(2)(b), Rule 3(1)(d), Rule 4(2) and Rule 4(4) under Part II, seek to curb the freedom of speech and expression, as well as freedom of press by proscribing content on the basis of vague and subjective grounds, and also seek to usher in an era of surveillance and fear, thereby resulting in self-censorship, which curtails the fundamental rights as envisaged under the Constitution of India.

The plea also submitted that the three-tier regulatory mechanism is outside the scope of the Executive and can only be performed by the judiciary. "That by way of providing the Respondents with the power to act on the basis of adherence to the Code of Ethics, the Rules intend to regulate content on undefined, vague and subjective standards as provided in the Code of Ethics, such as 'half-truths', 'good taste', 'decency', etc. which provide a broad scope for imminent misuse by the Respondents."

The plea comes in the wake of MIB refusing to exempt the traditional news companies from IT rules 2021. In its explanation, the ministry said that the existing norms followed by traditional media entities have been extended to the digital news platforms. Therefore, there is no new or additional compliance.

The ministry had noted that the Code of Ethics laid down under the Digital Media Rules, 2021 provide that the digital news publishers shall adhere to the codes which has three elements -- (a) the Programme Code under the Cable Television Networks (Regulation) Act; (b) the Norms of Journalistic Conduct under the Press Council Act; and (c) that content which is prohibited under any law for the time being in force be not published.

The traditional media publishers (TV and Print) are already regulated by these norms, the MIB said.

It further stated that the Press Council Act covers newspapers (including replica e-version of a newspaper), the news portals/websites (.coms, .ins, etc.) are not covered under that Act. Content also differs across the traditional and digital platforms. Accordingly, news portals/websites even of the organisations having traditional newspapers will be covered under the said Rules.

With regard to traditional TV news entities, the ministry pointed out that only the traditional TV channel is covered under the Cable Television Networks (Regulation) Act and Uplinking/Downlinking guidelines while their digital news portals/websites are not covered under that Act/Guidelines.

It also mentioned that a recent ruling by the News Broadcasters Standard Authority (NBSA) that the news exclusive to digital platforms is outside its scope. "Further, the content may be different between the traditional and digital platforms. As a case in point, in a recent decision, the News Broadcasters Standards Authority (NBSA) held that a news which appears only on the website (.com/.in) of an organisation but not its traditional TV platform would be outside the scope of its jurisdiction."

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