Kerala High Court: P.V. Asha, J., addressed the instant petition pertaining to controversial Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which came into effect on 25-02-2021. The impugned Rules were challenged for being ultra vire to the parent legislation, namely the IT Act 2000, and for being violative of Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution of India.
The Petitioners, publishers of the legal news portal, LiveLaw, and consumers of online curated content challenged Part III of the Impugned Rules, which sought to regulate the publishers of news and current affairs content (“Digital News Media”) and publishers of online curated content (“OTT Platforms”). The petitioner contended that Part III of the impugned Rules had impermissibly extended the scope of the IT Act to publishers of online news, current affairs, and online curated content, and was thus ultra vire to the parent statute, which did not contemplate the regulation of Digital News Media. It was argued by the petitioner that Part III of the impugned Rules had imposed unconstitutional three-tiered complaints and adjudication structure upon publishers, which would make the executive both complainant and judge on vital free speech questions involving blocking and taking down of online material.
The petitioner argued that the action of State was both arbitrary and violative of rule of law and separation of powers, as there was no provision for the aggrieved publishers to appeal against the decision of the Inter-Departmental Committee consisting only of members of the executive, constituted under Rule 14 of the impugned Rules. Also, the petitioner stated that Part III of the Rules made it mandatory for publishers to comply with a Code of Ethics that was both vague and overbroad. The petitioner further contended,
“The provision for ‘review’ under Rule 17 does not even provide any lip service to the rights of Digital News Media since the ‘Review Committee’ solely comprises of members of the executive (with the same Ministries as involved in the Inter-Departmental Committee); does not provide the aggrieved publisher with a right to be heard; and fails to provide any judicial oversight over the censorship complaint by Respondent 2.”
It was submitted that the impugned Rules had not been issued following due process under the IT Act 2000, were vague, suffered from an excessive delegation of powers, would lead to the exercise of judicial functions by non-judicial authorities, and were an attempt to overrule the effect of the judgment passed by the Supreme Court in Shreya Singhal v Union of India, (2015) 5 SCC 1
Further, impugning Part II of said Rules, the petitioner contended that Part II had obligated social media intermediaries to perform private censorship, at the cost of severe penalties. These Rules would have a direct chilling effect on online speech and would cause the proliferation of self-censorship. It was further contended that the impugned Rules would deprive the intermediaries of their “safe harbour” protections under Section 79 of the IT Act and would subject them to legal prosecution. The petitioner expressed,
“By obligating messaging intermediaries to alter their infrastructure to “fingerprint” each message on a mass scale for every user to trace the first originator, the impugned Rules disproportionately violate the fundamental right of internet users to privacy, and undermine the holding of the Supreme Court in K.S. Puttaswamy v Union of India, (2017) 10 SCC 1.”
In the light of the above, the Bench restrained the State from taking any coercive action against the petitioners for non-compliance with the provisions contained in Part III of the impugned Rules.[Live Law Media (P) Ltd. v. Union of India, WP(C) No.6272 of 2021, 10-03-2021]
Kamini Sharma, Editorial Assistant has reported this brief.