- brief intro on the new IT rules.
- Delineate the recent judicial pronouncements pointing to the effective violations.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 was notified, which has stemmed from Section 87 of the IT Act 2000 and is a combination of the draft Intermediary Rules, 2018 and the OTT Regulation and Code of Ethics for Digital Media. However, it is touted that its provisions undermine the rights and freedoms of internet users.
The constitutionality of the new IT rules is challenged through various petitions. In this, three High Court judgements clearly acknowledge the dangers posed by the IT rules.
- The Kerala HC in a petition filed by Live Law Media, an online publisher of legal news & analysis, effectively stayed a regulation framed by the Central government, clearly pointing to the evident injury to FoS&E.
- Then, the Bombay HC in a joint petition by Leaflet and journalist Nikhil Wagle, has stayed two core provisions of the IT rules governing online news media platforms – sub rules (1) & (3) of Rule 9 that require compliance with a “code of ethics”, applied by a three-tiered structure headed by the Ministry of Information and Broadcasting. The court finds that the provisions for media governance go far beyond the allowance granted by the principal provisions of the IT Act. Compliances under the “code of ethics” either lack force of law or have a distinct statutory framework like the Cable Television Networks (Regulation) Act 1995. The most glaring danger of the IT rules is that liberty of thought and right to freedom of speech & expression will be suffocated, if people are coerced to live under internet content regulation with a Code of Ethics.
- The Madras HC in a clubbed petition by TM Krishna and Digital News Publishers Association, has upheld the pan-India effect of the Bombay HC’s decision. The court observed that new IT rules are broadly incapable to regulate digital news media outlets and also asserted that 19(1)(a) may be infringed when coercively applied to intermediaries. Also, there is a genuine apprehension that a nod from appropriate quarters can make the platform inaccessible to citizens. This infringes even the right to information.
Therefore, the judicial consensus validates that the new IT rules conflict with our Constitutional freedoms in two ways – (a) lack of statutory backing ; and (b) substantially harm the freedom of speech & expression of internet users. This has resulted in an effective restraint on the provisions against online news portals and there seems a real possibility that similar finding may emerge w.r.t. social media platforms.
Although, the MeitY & MIB had termed the rules as “fine blend of liberal touch with gentle self-regulatory framework”, such claims are challenged. The IT Rules may achieve the very opposite of such ostensible goals. While regulatory stasis is lingering, the best course are to reconsider the IT rules and find a common cause between the citizen’s interests and the government, which requires a look beyond litigation to rights-led and rights-based policy determinations.