Underlining the right to freedom of speech and expression as critical in a democracy, the Madras High Court on Thursday stayed the operation of a key provision of the Information Technology Rules, 2021, enacted in May, that set up an oversight mechanism by the Central government to regulate social media and digital media platforms.
“Prima facie, there is substance to the petitioner’s grievance that the oversight mechanism to control the media by the Government may rob the media of its independence and the fourth pillar of democracy may not at all be there,” a bench of Chief Justice Sanjib Banerjee and Justice P D Audikesavulu observed while staying the operation of Rule 9(1) and 9(3) of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021.
Rule 9 of the IT Rules prescribe a grievance redressal mechanism and sub-Section 1 establishes a portal to be set up by the Ministry of Information and Technology for receiving complaints against media platforms while under sub-Section 3, an acknowledgment of every complaint is generated within 24 hours of receiving the complaint, which is then referred to the media platform concerned and the IT ministry for record.
This is the second instance of a High Court citing the right to freedom of speech while staying the same provision in the IT Rules. On August 14, the Bombay High Court had stayed Rule 9(1) and 9(3), saying they are “manifestly unreasonable and go beyond the IT Act, its aims and provisions.”
“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 the authorities so wish,” the Bombay HC had then said.
The provision was challenged in the Madras High Court by the Digital News Publishers Association, a grouping of 13 leading media companies in the country — ABP Network Private Limited, Amar Ujala Limited, DB Corp Limited, Express Network Pvt Ltd, HT Digital Streams Ltd, IE Online Media Services Pvt Ltd, Jagran Prakashan Limited, Lokmat Media Private Limited, NDTV Convergence Limited, TV Today Network Limited, The Malayala Manorama Co (P) Ltd, Times Internet Limited and the Ushodaya Enterprises Private Limited.
“For understandable reasons, the petitioners are wary of the oversight mechanism of the Central Government as indicated in the final tier of the process of regulation,” the Madras High Court observed on Thursday.
The High Court also examined Rule 3(1)(c), which terminates the access or usage rights of users for non-compliance by media platforms with the provisions of grievance redressal.
“Though the petitions have 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 order stated.
The Rules enacted under Section 69 of the IT Act requires all social media platforms to set up grievance redress and compliance mechanisms, which include appointing a resident grievance officer, chief compliance officer and nodal contact person.
The Central government has defended the Rules in court, arguing that it merely extends the norms applicable for traditional media to digital media platforms without extending the entire Press Council Act and the Cable Television Networks (Regulation) Act to publishers of news and current affairs content on digital media.
Though it agreed that the Bombay HC stay order would apply across the country, it has also filed a petition before the Supreme Court seeking a transfer of all cases from various High Courts, including the Delhi High Court to the Supreme Court. The plea is likely to be heard in October.