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Tuesday, April 13, 2021

Kerala HC notice to Union Govt on plea challenging constitutional validity of IT Rules 2021

The petition said Part III of the impugned rules impermissibly extends the scope of the IT Act to publishers of online news, current affairs, and online curated content, and is thus ultra vires the parent statute, which does not contemplate the regulation of Digital News Media.

Written by Shaju Philip | Thiruvananthapuram |
Updated: March 13, 2021 6:02:58 pm
Kerala High Court, IT rulesFile photo of Kerala High Court

Acting upon a petition challenging the constitutional validity of Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Kerala High Court on Wednesday issued notice to the Union Government.

The petitioner Live Law Media Private Limited sought a direction that such rules are beyond the legal authority of the parent act Information Technology Act, 2000, and in violation of Articles 14, 19(1) (a), 19(1) (g) and 21 of the Constitution.

In the interim order, Justice P V Asha said the Union Government shall not take any coercive action against petitioners with reference to provisions contained in Part 3 of IT Rules. The petitioner has challenged the part II and Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “Intermediaries Rules 2021” or “impugned Rules”).

The part three of the impugned rules seeks to regulate the publishers of news and current affairs content [“Digital News Media”] and publishers of online curated content [“OTT Platforms”]. “Part III of the impugned Rules impermissibly extends the scope of the IT Act to publishers of online news, current affairs, and online curated content, and is thus ultra vires the parent statute, which does not contemplate the regulation of Digital News Media.”

In substance, it imposes an unconstitutional three-tiered complaints-and-adjudication structure upon publishers, which makes the executive both the complainant and the judge on vital free speech questions involving blocking and take down of online material.

This is both arbitrary and violates the rule of law and separation of powers, especially since there is no provision for the aggrieved publishers to appeal against the decision of the Inter-Departmental Committee consisting only of members of the executive, the petitioner said.

The Part III imposes a disproportionately onerous set of administrative regulations upon Digital News Media, which will make it virtually impossible for small or medium-sized publishers, such as Petitioner No. 1, to function. Finally, Part III requires publishers to comply with a Code of Ethics that is both vague and overbroad in its formulation, and seeks to proscribe constitutionally protected.

“The net effect of Part III, it is respectfully submitted, is to cause a chilling effect upon entities such as the Petitioners, in the exercise of their constitutional rights under Articles 19(1)(a) of the Constitution, and to disproportionately infringe their rights under Articles 19(1)(g) and 21 of the Constitution,’’ said the petitioner.

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