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I&B Sought Media Compliance With IT Rules Even After HC Issued Stay, Digital Rights Body Says

An RTI filed by the Internet Freedom Foundation's has revealed that 2,100 publishers sent their details to the ministry. The ministry didn't say how many of them responded after the Bombay HC issued the stay order.

New Delhi: The Internet Freedom Foundation has found through a Right to Information request that the Ministry of Information and Broadcasting sought information from publishers even after high court orders stayed the operation of a particular rule of the new IT Rules.

It was responded to by over 2,000 publishers, though it did not reveal how many of them replied after the high court stays.

In orders issued on August 14, 2021, and September 16, 2021, respectively, the Bombay and Madras high courts stayed two sub-rules of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Hearing two petitions against the IT Rules, Madras high court stayed the application of sub-rules (1) and (3) of Rule 9, stating that they rob the independence of media in the country.

Earlier, the Bombay high court stayed the same two provisions – Rules 9(1) and 9(3) – after having heard petitioners, the legal news website The Leaflet and journalist Nikhil Wagle.

Rule 9 relates to “adherence and observation” of the Code and lays down a three-tier oversight mechanism by the Union government to ensure adherence to the Code of Ethics and resolution of any grievances in relation to publishers.

At level one, a grievance redressal officer to be set up by the publisher has to take up a complaint by any person having any grievance regarding content. At level two an appellate body constituted by publishers or their associations, of independent persons, but subject to the ministry’s approval can exercise the power to warn or censure, require the publisher to apologise or display a warning or disclaimer.

At level three, an Inter-Departmental Committee headed by an Authorised Officer of the Government of India, and consisting chiefly of serving officials from various ministries can directly take complaints referred to it by the I&B ministry of I&B. It can override decisions of levels one and two upon appeal, in addition to other powers.

“In so far as Rule 9 is concerned, we have found it prima facie to be an intrusion of the petitioners rights under Article 19(1)(a). We have also held that it goes beyond the substantive law. Therefore we have stayed clauses 9(1) and 9(3). The rule is not stayed in its entirety,” the Bombay high court bench had said.

In its report on the stay order, the Internet Freedom Foundation had then explained that since the Rules had been notified by the Union government, the decision is applicable throughout the territory of India and is not confined to the territorial jurisdiction of the Bombay high court. This is in accordance with the observation of the Supreme Court in Kusum Ingots & Alloys Ltd. vs Union of India & Anr. 

“The Bombay High Court, in its order dated 14.08.2021 had found that Rule 9(1) prima facie violates the constitutional guarantee of freedom of speech and expression conferred by Article 19(1)(a), and that the Code of Ethics in the IT Rules had tried to exalt the Norms of Journalistic Conduct (which have moral sanction, but not statutory obligations) to the status of mandatory compliance,” IFF has said.

Questions ignored

However, in its latest report, Internet Freedom Foundation notes that it was informed by digital news media publishers that the Ministry of Information and Broadcasting had issued notices to them, demanding they furnish information on themselves, under the IT Rules.

The Foundation filed an RTI application on January 3, 2022, to gauge “confirm whether this was the case, to understand the authority under which these notices were issued, and to which publishers.” The I&B ministry, through its reply, offered some information on January 14.

The first admission by the I&B ministry was that it did issue such notices. The first was on May 26, 2021 and the second, on September 9, 2021. The second, noticeably, was issued after the Bombay high court’s stay order, on August 14.

The second was that more than 2100 publishers of news media and OTT platforms had already supplied details to the I&B ministry.

“However, when asked how many of these publishers furnished their details after August 14, 2021, [the day of the Madras high court order] the MIB refused to provide the data stating that this information does not exist at all,” the Internet Freedom Foundation notes.

When the Foundation asked the I&B ministry as to what legal authority enabled it to issue this notice, the ministry replied that this information does not fall in the definition of information in Section 2(f) of the RTI Act.

“It is surprising that the MIB has ignored these judgments of constitutional courts, and issued a notice on 09.09.2021, requiring digital news publications to furnish their details. But when we asked the MIB what legal authority enabled it to issue this notice, our question was ignored,” the IFF said.

Other questions by the Foundation’s, like a list of publishers to whom these notices were issued, and a list of publishers who responded to this notice, with their details, were ignored by the I&B Ministry.

The organisation writes that it plans to file and appeal with concerned authorities and await their response to all their requests for information.

The Bombay and Madras high courts are not the only ones hearing petitions against the IT Rules. Numerous media organisations filed pleas high courts across the country, alleging that the new IT rules violate both the constitution and the IT Act, which they were framed under. The first such plea was filed by The Wire, its founding editor M.K. Venu and The News Minute editor Dhanya Rajendran.