Madras High Court: The Division Bench of Sanjib Banerjee, CJ and P.D. Audikesavalu, J., prima facie observed that an oversight mechanism to control the media by the government may rob the media of its independence and fourth pillar, so to say, of democracy may not at all be there. The High Court was hearing a challenge to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The Rules have been challenged on the ground that they are ultra vires, inter alia, Articles 14 and 19 of the Constitution of India. Primarily the petitioners referred to Rule 9 which pertained to observance and adherence to the Code. Rule 9(3) provided for ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India. Under the Code, the grievance made in relation to publishers would be governed by three tier structure: (i) Self regulation by publishers; (ii) Self regulating bodies of publishers; (iii) Oversight mechanism by the Central Government. The petitioners were wary of the oversight mechanism of the Centre indicated as the final tier of the process of regulation.
The High Court observed that:
“Prima facie, there is substance in the petitioner’s grievance that an oversight mechanism to control the media by the government may rob the media of its independence and fourth pillar, so to say, of democracy may not at all be there.”
The Court added that nothing more need be said on the above aspect as the Bombay High Court had already stayed the operation of sub-rules (1) and (3) of Rule 9 of the said Rules of 2021. However, the petitioners informed the Court that notwithstanding the Bombay High Court order, notices have been issued to them requiring adherence to Rule 9. On this, the Court recorded that:
“It must be recorded in all fairness that the Additional Solicitor-General, representing the Union, accepts that the order passed by the High Court of Judicature at Bombay would have pan-India effect.”
Another ground for challenge which was not covered by the Bombay High Court pertained to Rules 3 and 7 of the impugned rules. Petitioners were aggrieved with the incorporation of sub-clause (x) of Rule 3(1)(b), which is as follows: “(x) is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person;”
Petitioners pointed that along with the obligation imposed on the intermediary under Rule 3(1)(c) to terminate the access or usage rights of users for non-compliance with the provisions of Rule 3(1)(b), the provisions for grievance redressal have been made stringent and, finally, Rule 7 has been incorporated making an intermediary liable for punishment upon the intermediary failing to observe the said Rules.
The Court noted that that the present Rule 3 is different from Rule 3 of the earlier rules. There appear to be key changes, particularly the introduction of sub-clause (x) in clause (b) of sub-rule (1) thereof and the additional obligation on the intermediary in, inter alia, clause (c). It was noted:
“Any host of a website or platform would be an intermediary and an ordinary person may be denied access to the platform on the ipse dixit of the intermediary or on the intermediary’s apprehension that such intermediary may be proceeded against.”
Section 79 of the Information Technology Act, 2000 grants exemption from liability to intermediaries in certain cases. However, by virtue of Section 79(2)(c), the exemption would not apply if the intermediary is found not to have observed “guidelines as the Central Government may prescribe in this behalf.”
In Shreya Singhal v. Union of India, (2015) 5 SCC 1, it was observed:
“it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.”
Significantly, the High Court siad that though the petitions were not brought by hosts of website platforms, but social media platforms on the website are used by one and sundry and there is a genuine apprehension that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen.
The Court directed that if there is any action taken in terms of Rule 3 of the said Rules read with Rule 7 thereof during the interregnum, it will abide by the result of the petitions and further orders herein. Since main matter is likely be taken up by the Supreme Court in early October, 2021, the matters of the present petition shall be taken up in the last week of October, 2021. [Digital News Publishers Assn. v. Union of India, WP No. 13055 of 2021, dated 16-9-2021]