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Sunday, September 26, 2021

Bombay HC stays provisions on adherence to ‘Code of Ethics’ under new IT Rules for digital media

Refusing a request by the Central government to stay operation of the interim order, the court granted it three weeks to file an affidavit in reply to the plea and rejoinder by the petitioners thereafter, and posted the final hearing to September 27.

Written by Omkar Gokhale | Mumbai |
Updated: August 15, 2021 7:27:13 am
social mediaThe new rules for social media platforms and digital news outlets have asked all social media platforms to set up grievance redressal and compliance mechanisms. (Representational/File)

The Bombay High Court Saturday stayed two clauses of Rule 9 of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, calling “the indeterminate and wide terms” prima facie against the right to freedom of speech enshrined in the Constitution, and going beyond the “substantive law of IT Act”.

Granting partial interim relief to petitioners The Leaflet and senior journalist Nikhil Wagle, a Division Bench of Chief Justice Dipankar Datta and Justice Girish S Kulkarni said, “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. This regime would run clearly contrary to the well-recognised Constitutional ethos and principles.”

Refusing a request by the Central government to stay operation of the interim order, the court granted it three weeks to file an affidavit in reply to the plea and rejoinder by the petitioners thereafter, and posted the final hearing to September 27.

“Dissent in democracy is vital,” the High Court observed in its 33-page interim order. “There can be no two opinions that a healthy democracy is one which has developed on criticism and acceptance of contra views… it is healthy to invite criticism of all those who are in public service, for the nation to have structured growth.”

But with the 2021 Rules in place, the Bench said, “one would have to think twice before criticising (a public) personality, even if the writer/ editor/ publisher may have good reasons to do so, without resorting to defamation and without inviting action under any other provision of law”.

The Court further noted, “Allowing the operation of the 2021 Rules in its form and substance… would result in the writer/ editor/ publisher standing the risk of being punished and sanctioned… The indeterminate and wide terms of the Rules bring about a chilling effect qua the right of freedom of speech and expression… The 2021 Rules are, thus, manifestly unreasonable and go beyond the IT Act, its aims and provisions.”

Granting a stay on the two clauses of Rule 9, the judges said, “Should at least a part of Rule 9 of the 2021 Rules be not interdicted even at the interim stage, it would generate a pernicious effect. As it is, the constant fear of being hauled up for contravention of the Code of Ethics is a distinct possibility now.”

During the hearing on Friday, the High Court had told the Centre, “Can something which is already governed by two independent legislations, including Press Council of India Act and Cable TV Act, be brought under purview of these rules? Whether it has already entrenched the provisions in other legislation? With this, there will be multiple actions, and is this the regime which has been considered (by the Centre)?”

The petitioners had challenged 9 (Observance and Adherence to Code of Ethics), 14 (Constitution of Inter-Departmental Committee), and 16 (Blocking of Information in Case of Emergency) of the new IT rules.

In its order staying Clauses (1) and (3) of Rule 9, pertaining to adherence of ‘Code of Ethics’, the court said: “In so far as Rule 9 is concerned, we have found it prima facie to be an intrusion into petitioner’s rights under Article 19 (1) (a) of the Constitution (right to freedom of speech). We have also held that it goes beyond the substantive law of IT Act.”

Clause 9 (1) provides that a publisher shall observe and adhere to code of ethics under the rules; 9 (3) provides a three-tier structure for adherence to code of ethics, which includes self-regulation by publishers, self-regulation by self-regulating bodies of the publishers, and an oversight mechanism by the Central government.

On Rule 14, the court said there was “no immediate urgency… as the inter-departmental committee is not yet notified and officers are not being appointed and the mechanism by interdepartmental committee by itself has not been formed yet”. It said the petitioner could move the court “as soon the committee is constituted”.

On Rule 16, the Bench said: “It is Pari Materia (on the same subject) to the Rule 9 of 2009 IT Rules which are yet in operation. Also, it is not the petitioner’s case that they were anytime aggrieved by Rule 9 of 2009 Rules.”

Announced in February and implemented in May, the guidelines required all social media platforms to set up a grievances redressal and compliance mechanism, which included appointing a resident grievance officer, chief compliance officer and a nodal contact person.

The Ministry of Electronics and Information Technology also asked these platforms to submit monthly reports on complaints received from users and action taken on them. A third requirement was for instant messaging applications to make provisions for tracking the first originator of a message.

Senior advocate Darius Khambata and advocate Abhay Nevagi, representing The Leaflet and Wagle, respectively, had described the rules as “draconian censoring” and “regulating of free speech” on the Internet, saying these would have a “chilling effect” on free speech of authors, editors and the public at large.

Appearing for the Centre, Additional Solicitor General Anil Singh urged the High Court not to pass any interim orders, stating that apprehensions of the petitioners were premature. The Centre also stated that granting interim relief would lead to “spread of fake news and legally prohibited content”.

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