Bombay HC grants partial interim relief to digital news publishers in IT Rules 2021 case

The court said that the sub-clauses 1 and 3 of clause 9 of the new rules were 'manifestly unreasonable' that can impinge on the freedom of speech of writers, editors and publishers

e4m by exchange4media Staff
Published: Aug 16, 2021 11:11 AM  | 3 min read
bombay hc

The Bombay High Court has ordered an interim stay on the provisions of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) 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.
The court has granted three weeks to the centre to file an affidavit in reply to the plea and rejoinder by the petitioners thereafter. The matter has been posted for final hearing on September 27.

The Bombay High Court is the third court in the country after Kerala and Madras High Courts to grant interim relief to petitioners from implementing the IT Rules 2021 and from coercive action by the I&B ministry.

A bench of Chief Justice Dipankar Datta and Justice GS Kulkarni stayed these two sub-clauses of the IT Rules, saying they seem to violate the petitioners' constitutional right to freedom of speech and expression under Article 19. The court refused to stay Clause 14 that pertains to setting up of an inter-ministerial committee with powers to regulate online content and deal with grievances and breach of rules, and Clause 16 which is about blocking of online content in case of an emergency.

"Dissent in democracy is vital... For proper administration of the State, it is healthy to invite criticism of all those who are in public service for the nation to have a structured growth, but with the 2021 Rules in place, one would have to think twice before criticising any such personality, even if the writer/editor/publisher may have good reasons to do so," the judges said.

The bench noted that if a committee proposed under the rules did not approve of criticism of a public figure, anyone who criticises such a person would invite punishment. It also stated that the rules are "manifestly unreasonable and go beyond the IT Act, its aims and provisions".

The Code of Ethics for online news, OTT platforms and digital media mandates that publishers of news on digital media would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act thereby providing a level playing field between the offline (Print, TV) and digital media.

The Bombay High Court pointed out that the IT Act itself did not have a provision for bringing in such censure on online content. It further stated that the PCI and CTNR norms were formulated under separate statutory legislation, but the Union government tried "illegally" to grant an "exalted status" of mandatory compliance to such norms.

"People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles," the high court said.

Digital news web portal The Leaflet had challenged the IT Rules 2021 in early July. The platform had contended that the IT Rules 2021 are violative of Articles 14 (right to equality), Article 19(a) (freedom of speech and expression), and 19(1)(g) (freedom to practise any profession or to carry on any occupation, trade or business). The Leaflet contributing editor Ashish Khetan was also a co-petitioner.

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