Updated: June 24, 2021 8:17:07 am
The Madras High Court issued notices Wednesday to the Union Ministries of Electronics and Information Technology and Information & Broadcasting on a plea by Digital News Publishers Association — a 13-member collective of the nation’s biggest news media companies — challenging the Constitutional validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021).
The petition has contended that these rules violate Articles 14 (equality), 19 (1) (a) and 19 (1) (g) of the Constitution (right to freedom of speech and expression and right to profession).
Hearing the application for interim orders, a bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy recorded the petitioners’ submission that there is “sufficient basis for the petitioners…apprehension that coercive and arm-twisting action may be taken” undersuchprovisions and sought an order seeking restraint of operation of Rules 12, 14 and 16 Rule 16 of the Rules give the Secretary, I&B, emergency powers to block, as an interim measure, public access to any information or a part of it without giving the intermediary hosting the said information any opportunity of hearing. Provision 12 offers options for one or more self-regulatory body of publishers, while 14 says that I&B Ministry shall constitute an inter-departmental committee with representatives from other Ministries.
When senior counsel P S Raman, representing DNPA, sought an interim order restraining the Union Government from taking any action under the said rules pending disposal of the plea, the bench declined to grant it noting that no adverse action has been initiated against the petitionersso far. The bench granted the petitioners liberty to approach the High Court for interim relief if the Centre takes any adverse action.
The High Court tagged the matter with another earlier petition filed by musician and writer T M Krishna challenging the rules. The High Court directed that a copy of the petition be forwarded to the office of the Additional Solicitor General.The respondents, the two Ministries, should file their counter-affidavits within a fortnight. The next hearing is after three weeks.
The key grounds of the DNPA challenge: the rules try to legislate conduct of entities not within the scope of the IT Act of 2000; they impose on traditional and legacy media organizations the burden of “over-regulation”; they transgress provisions of IT Act; seek to curb freedom of speech and freedom of the press on vague grounds already struck down by the Supreme Court. And that the rules are likely to usher in an era of “surveillance and fear.”
Free speech and regulation
The DNPA plea’s key objections: the new Rules transgress the IT Act, gag free speech, usher in an era of fear and surveillance, and burden traditional and legacy media with over-regulation.
The petition also challenged the Code of Ethics formulated by the government and argued that the rules intend to regulate content on “undefined, vague, and subjective” standards such as “half-truth, good taste, decency”, which provide a “broad scope for imminent misuse” by government agencies.
Formed in 2018, the DNPA includes: the ABP Network, Amar Ujala, Dainik Bhaskar Corp, Express Network, HT Digital Streams, IE Online Media Services (part of The Indian Express Group), Jagran Prakashan, Lokmat Media, NDTV Convergence, TV Today Network, The Malayala Manorama, Times Internet Limited and Ushodaya Enterprises. Mukund Padmanabhan, the former Editor of The Hindu and The Hindu Business Line, is a co-petitioner with DNPA.\
The DNPA argued that since it represented only traditional and legacy media outlets in print and broadcasting, which now have an online or digital presence as an extension of their main arms, the association should not be thought of as representing news and content publishers exclusively present only digitally.
There are several regulations in place already for traditional and legacy media outlets in print and broadcasting, which have been operating before the advent of internet and digital media, the plea said.
The mandatory requirement of DNPA members being forced to comply with the IT Rules of 2021, thus, will “lead to a situation of over regulation and unnecessary complication” of a sector that is already “well-regulated” by law and the Government, DNPA said in its plea.
DNPA’s petition is the ninth such plea against the newIT Rules. As per information available, five petitions have been filed before the Delhi High Court, while two each are being heard by the Kerala and Madras High Court and one is listed before the Karnataka High Court.
Besides news media organisations, instant messaging platform WhatsApp, too, has approached the Delhi High Court challenging the provision which asks messaging social media intermediaries to enable tracing of the first originator of the message.
On February 25 this year, the Ministry of Electronics and Information Technology had announced the Intermediary Guidelines and Digital Media Ethics Code. The three-part Rules had guidelines for social media intermediaries, significant social media intermediaries, and digital news publications.
While the IT ministry had been declared as the nodal ministry for compliance with guidelines for social media intermediaries, the Ministry of I&B was given administrative charge for compliance of guidelines announced for digital news websites, over-the-top (OTT) platforms and online media agencies.