Media

Why The Wire Wants the New IT Rules Struck Down

Synopsis of the petition moved in the Delhi high court by the Foundation for Independent Journalism, publisher of The Wire.

On Tuesday, the Delhi high court issued notice to the Centre on a petition filed by the Foundation for Independent Journalism, publisher of The Wire, which pleads that the government’s new Information Technology (IT) Rules which seek to dictate content to digital news media platforms go beyond the scope of what is permissible under the IT Act and need to be struck down.

The division bench, comprising Chief Justice D.N. Patel and Justice Jasmeet Singh, has set April 16 as the date of the next hearing.

Appended below is the ‘Synopsis’ of the FIJ’s petition, which presents a summary of the grounds on which The Wire is challenging the IT Rules.

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SYNOPSIS

The present Petition challenges the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021” or “Impugned Rules”) as being ultra vires the Information Technology Act, 2000 (“parent Act”), in as much as they set up a classification of ‘publishers of news and current affairs content’ (“digital news portals”) as part of  ‘digital media’, and seek to regulate these news portals under Part III of the Rules  (“Impugned Part”) by imposing Government oversight and a ‘Code of Ethics’, which stipulates such vague conditions as ‘good taste’, ‘decency’ etc. – matters nowhere within the contemplation of the parent Act. The Petitioners bring out wholly digital news and current affairs publications and are therefore directly affected by this overreach by way of subordinate legislation. The Petitioners’ digital news portals publish news and views, as distinct from curated content. The present Petition challenges the IT Rules, 2021 only in so far as they affect digital news portals, and is not with reference to ‘publishers of online curated content’, i.e., OTT media platforms or any other entities sought to be regulated by the Impugned Rules.

The Press Council Act, 1978 is a statute with express provisions to regulate newspapers and that too without Government interference. The Cable Television Networks (Regulation) Act, 1995, contains express provisions to impose a programme code and for cable television to be regulated by the Central Government. By contrast, the Information Technology Act neither intends nor provides for the imposition of a programme code, or regulation of news portals in any manner. Yet, this is sought to be done through subordinate legislation, the IT Rules, 2021.

Information Technology Act, 2000

The object and purport of the parent Act is as follows:

“An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as ― electronic commerce, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto”. 

The parent IT Act is limited to providing legal recognition, authentication and facilitation of interchange of electronic data and electronic communication, and its receipt as evidence. Moreover, the parent Act does not envisage or provide for regulation of electronic content, except in two distinct ways:

1. Constituting offences limited to cyber terrorism (Section 66-F), obscene material (Section 67), sexually explicit material (Section 67-A),  child pornography (Section 67-B) and others such as tampering, theft that are not currently relevant.

None of these offences are of any relevance to a digital news portal.

2. Blocking of sites under Section 69-A by a direction to intermediaries in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to these.

While the parent Act provides for offences of a specific kind committed in the form of electronic data, (seldom found in a news and current affairs publication), its purport is not at all to regulate content in any other manner. Even Section 69-A, as the Supreme Court recognized in Shreya Singhal v. Union of India  (2015) 5 SCC 1, is limited to a well-defined class of entities called ‘intermediaries’, and ‘Government agencies’. The Section reads as under:

69-A Power to issue directions for blocking for public access of any information through any computer resource. –

(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.

(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.

(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.

Therefore, even by way of Section 69-A, there is no scope to dictate content to news media portals. Section 69-A envisages only two targets of its directions, i.e. an “agency of the Government” or “intermediary”. The Petitioners are neither. The entire Part III of the Impugned Rules that seeks to set up a regulatory mechanism for digital media is ultra vires the parent Act. And if allowed to stand it would be so arbitrary and unwarranted an intrusion on expression, as to render it ultra vires the parent Act on that score alone or throw a doubt upon the validity of the  parent Act.

Notably, an offence under Section 66-A penalising content which is ‘offensive’ or causes ‘annoyance’ was struck down on grounds of vagueness by the Supreme Court in Shreya Singhal v Union Of India  (2015) 5 SCC 1. The IT Rules, 2021 go far beyond the remit of the parent Act and seek to regulate digital news media by imposing a ‘Code of Ethics’, with all manner of stipulations as to ‘half-truths’, ‘good taste’, ‘decency’ etc., and vest the power of interference ultimately with the Central Government as the chief regulator, at the highest of three tiers.

The Impugned Rules bring back some elements of Section 66-A and go far beyond it, by way of prescription, to be administered, adjudicated  upon and supervised by the Government. Thus, they not only exceed the parent Act, but also contravene the Supreme Court’s ruling in Shreya Singhal, and therefore will not be saved by any general rule-making power under Section 87(1) that is limited to carrying out the provisions of the parent Act.

The IT Rules, 2021 are purportedly made under Section 87(1) of the parent Act, more particularly Section 87(2)(z) & (zg) which respectively enable Rules to be framed on:- “the procedure and safeguards for blocking for access by the public under Section 69-A(2)” and “guidelines to be observed by the intermediaries under Section 79(2)”. Therefore, Section 87(2)(zg) is not applicable to digital news media as they are not intermediaries either as per the Act or as per the Impugned Rules. Rules sourced to Section 87(2)(z), naturally, cannot travel beyond the terms of Section 69-A, which as stated above, is limited to ‘intermediaries’ or ‘agency of the Government’ and that too on grounds relating to security interests of the State.

Scheme of the Rules

Relevant Definitions in the IT Rules, 2021.

Digital media’ is defined by Rule 2(1)(i) as content carried by either an intermediary or  a ‘publisher’. Note that the two are mutually exclusive terms.

News and analysis of current affairs, which when made available over the internet and computer networks is defined as ‘news and current affairs content’ by Rule 2(1)(m), but when this is published as loosely folded sheets with newsprint it would be ‘newspaper’ defined by Rule 2(1)(n). ‘Newspaper’ is not covered by the IT Rules, 2021 but ‘news and current affairs content’ is. ‘Publisher of news and current affairs content’ is  separately defined in Rule 2(1)(t) as follows:

‘publisher of news and current affairs content’ means an online paper, news portal, news aggregator, news agency and such other entity called by whatever name, which is functionally similar to publishers of news and current affairs content but shall not include newspapers, replica e-papers of the newspaper and any individual or user who is not transmitting content in the course of systematic business, professional or commercial activity;

Significantly, none of these definitions are found in the parent Act and are all brought in by the IT Rules, 2021 with the express purpose of regulating their content.

Regulation

Subject Entities

The IT Rules, 2021 purport to regulate publishers and intermediaries. The manner of regulation is in two parts: one, due diligence norms to be followed  by ‘intermediaries’ (Part II of the Rules); two, Code of Ethics  to be followed by  ‘publishers’ (Part III of the Rules i.e. the Impugned Part).

Code of Ethics for publishers

A Code of Ethics is laid down, as per the Appendix referred to in Rule 9. The Code of Ethics for ‘publishers of news and current affairs content’ consists of the Programme Code under the Cable Television Networks (Regulation) Act, 1995; Journalistic Norms under the Press Council Act, 1978; and a blanket prohibition against content that is prohibited by any law.

Regime to supervise news content

Rule 9 sets up a three-tier structure to ensure ‘observance and adherence’ to the Code of Ethics.

Level 1:  ‘Self-regulation’ by the publisher – Grievance redressal officer to be set up by the publisher to take up a complaint by “any person having a grievance regarding content” (Rules 10,11)

Level 2: ‘Self-regulating body/bodies’ (actually a misnomer) of an appellate nature constituted by publishers or their associations, of independent persons, but subject to the Ministry’s approval. This Level 2 body has the power to warn or censure, require the publisher to apologize or display a warning/disclaimer. Note that their procedure is bound hand and foot by the Rules which obligate Level 2 bodies to refer  matters of non-compliance, and a certain class of content  to Level 3 for deletion or modification of the same. (Rule 12)

Level 3: ‘Oversight mechanism’ by the Central Government – This is an Inter-Departmental Committee, headed by an Authorised Officer of the Government of India, and consisting chiefly of serving officials from various Ministries. The Committee can directly take complaints referred to it by the Ministry of I&B. It also operates as a second appellate forum over decisions of Levels 1 and 2. In addition to the power to recommend to the Ministry of I&B, to issue various binding directions for perceived non-compliance, such as publication of apology, displaying a warning/disclaimer, etc., the Committee also has the power to recommend to the Ministry, draconian measures such as ordering the modification, deletion or blocking of content on certain perceived dangers. Such drastic orders are subject only to approval of the Secretary of the Ministry of I&B. (Rules 13-15)

Emergency Power

In addition to all of the above, there is an ‘emergency power’ reserved with the Secretary of Ministry of I&B to pass interim orders blocking any content without even giving an opportunity of hearing. (Rule 16)

The overreach

The scope of the parent Act is limited to providing for recognition of electronic data and it refers to entities and content in very generic terms. It contemplates  regulation of content only by creating a select set of offences, to be prosecuted and judicially assessed. (Offences relating to sexually explicit material etc. are generally not applicable to news and current affairs publications) Only intermediaries, who are immune from prosecution of offences under Section 79, are subject to a Government action of blocking. The IT Rules, 2021,  however, introduce a distinct category of entities, purely on the strength of their being publishers of news and current affairs content, to be subjected to an adjudicatory mechanism parallel to Courts of law, on a range of grounds which are not even offences under the parent Act.

Even the purported source of rule-making, in this case, Section 69-A of the parent Act, does not:

a. cover any direction to or regulation of any entity other than intermediaries, and news media is not an intermediary, or considered one by the Act or the Impugned Rules

b. go beyond blocking as an emergent measure in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States, public order, or for preventing incitement to the commission of any cognizable offence relating to these.

Section 69-A of the parent Act, under which the Impugned Part has been framed, provides for blocking intermediaries when required in the interests as aforesaid. The IT Rules, 2021, however, go on to impose upon the non intermediary digital news media a three-tier regulatory system to administer a loose-ranging Code of Ethics that contains wide and vague terms as ‘half-truths’, ‘good taste’, ‘decency’, ‘suggestive innuendos’, etc. They also prescribe censure, warning, requiring an apology etc. in this regard as also on counts of ‘defamation’ etc. As stated above, this is contrary to the Supreme Court judgment in Shreya Singhal that struck down Section 66-A.

The Rules introduce a special class of entities, obligate a Code of Ethics and further, obligate digital news portals and other entities to set up a ‘grievance’ redressal mechanism that deals with simply ‘any’ person’s complaint, wherein every which decision is subject to scrutiny of a higher regulatory tier, and non-compliance may be escalated to a still higher tier that is headed by a serving Central Government Officer and a Committee of other serving officers. Simply put, upon the merest complaint, Central Government interference is triggered on all manner of content – far beyond that which is mentioned in Section 69-A. The complaint may simply be that some content in a news report or editorial is a ‘half-truth’ or adverse to the social or moral life of the country. A Government oversight of news media content lies nowhere within the scope of the Act.

Whether news agencies and commentators on current affairs should be subjected to a Code of Ethics is not the question. The question is whether regulation and oversight by the Government or its agents can be prescribed by the Rules when not contemplated by the parent Act (though such an exercise even by Parliament would be open to serious challenge).

There is no unlimited right of delegation and subordinate legislation cannot go beyond the object and the scope of the parent Act. If such Rule or Regulation goes beyond what the parent Act contemplates, then it becomes ultra vires the parent Act, as held by a 3-judge bench of the Hon’ble Supreme Court, in Ajoy Kumar Banerjee v Union of India (1984) 3 SCC 127.

The Petitioners are therefore challenging the IT Rules, 2021 as being ultra vires  the IT Act, 2000.  The Petitioners believe that the present is a case that should succeed on this ground. However, it is not the case of the Petitioners that Government control of freedom of expression as is enabled under the Rules is not  liable to a broader constitutional challenge. It is respectfully submitted that the present challenge to the IT Rules, 2021 as being ultra vires the parent Act is without prejudice to the right to raise such a constitutional challenge in or by appropriate proceedings/ applications.

LIST OF DATES

17.10.2000 Information Technology Act, 2000 enacted by Parliament was brought into force.
27.10.2009 An amendment was brought in, which, among other things, added Section 66-A to the Information Technology Act, 2000.
27.10.2009 The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 were issued under Section 69-A(2) of the Information Technology Act, 2000.
11.04.2011 The Information Technology (Intermediaries Guidelines) Rules, 2011 were issued under Section 79(2) of the Information Technology Act, 2000.
24.03.2015 Shreya Singhal v Union of India (2015) 5 SCC 1 was decided, wherein, Section 66-A of the Act was struck down in its entirety; Section 69-A and the 2009 Rules were upheld; and Section 79 and the 2011 Rules were held to be valid, subject to a reading down of Section 79(3)(b) and Rule 3(4).
25.02.2021 The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, were issued under Sections 69-A(2) and 79(2), and in supersession of the Information Technology (Intermediaries Guidelines) Rules, 2011.

The IT Rules, 2021, inter alia, seek to regulate digital news portals under Part III, by imposing Government oversight and a ‘Code of Ethics’ on them, and therefore, go far beyond the object and scope of the IT Act.

26.02.2021 DigiPub News India Foundation, an association of digital news media organizations, registered under Section 8 of the Companies Act, and of which Petitioner No.1 is a member, sent a representation to the Ministry of Electronics and Information Technology, and the Ministry of Information and Broadcasting, inter alia, asking for a repeal of the IT Rules, 2021. No response has been received till date.
01.03.2021 Executive action seeking to enforce compliance in respect of the Impugned Rules has already commenced. For instance, Mr. Paojel Chaoba, a senior journalist who is the executive editor of  “The Frontier Manipur” was served with a notice dated 01.03.2021, issued by the jurisdictional District Magistrate, to report compliance with the Impugned Rules. It was later reported in the press that the said notice was withdrawn. An Affidavit dated 03.03.2021 has been obtained from Mr. Chaoba in this regard.
06.03.2021 Hence this Petition.