HC seeks Centre's reply on plea challenging new digital media rules

The Delhi high court on Tuesday sought the Centre's response on a plea challenging the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which seeks to regulate digital news media.

A bench of Chief Justice D N Patel and Justice Jasmeet Singh issued notices to the Ministry of Electronics and Information Technology and the Ministry of Information and Technology, and granted them time to file their response.

The high court was hearing a petition filed by the Foundation for Independent Journalism which said that the new IT Rules issued by the government on February 25 are palpably illegal in seeking to control and regulate digital news media when the parent statue IT Act nowhere provides for such a remit.

The plea said it has profound and serious harms for digital news media, like the petitioner, and destructive of their rights.

It sought to declare the 'IT Rules as void and inoperative insofar as it define and apply to publishers of news and current affairs content'.

Besides Foundation for Independent Journalism, the other two petitioners are its director and founding editor of The Wire Mangalam Kesavan Venu and Founder and Editor-in-Chief of The News Minute Dhanya Rajendran.

The petitioners urged the high court to grant them interim protection so that no coercive steps are taken against the digital news media outlets by the authorities till the next date of hearing on April 16.

To this, the bench said the petitioners may move the court with an application if any coercive action is taken.

The 2021 Rules regulate the functioning of online media portals and publishers, over-the-top (OTT) platforms and social media intermediaries. According to the Rules, a 'significant social media intermediary' has some additional obligations in comparison to other social media intermediaries.

Advocate Nitya Ramakrishnan, representing the petitioners, contended that regulation of news content is not within the Information Technology (IT) Act's purpose and added that she was not at all saying that news media is beyond regulation.

"I am not talking about OTT platforms and social media. I am only concerned with news media and current affairs. The new rules go far beyond anything that is permissible in a democracy," she argued.

The petition, filed through advocates Prasanna S, Vinoothna Vinjam and Bharat Gupta, has challenged the new Rules as being ultra vires the IT Act, as they set up a classification of 'publishers of news and current affairs content' as part of 'digital media', and seek to regulate these news portals under the Rules by imposing government oversight and a 'Code of Ethics', which stipulates such vague conditions as 'good taste' and 'decency'.

The Centre was represented through Additional Solicitor General Chetan Sharma and central government standing counsel Ajay Digpaul.

The petitioners said they bring out wholly digital news and current affairs publications and are directly affected by this overreach by way of subordinate legislation.

'While the parent (IT) 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 (of IT Act), as the Supreme Court recognised', is limited to a well-defined class of entities called 'intermediaries', and 'Government agencies',' the plea said.

It said that an offence under Section 66-A of the IT Act penalising content which is 'offensive' or causes 'annoyance' was struck down on grounds of vagueness by the Supreme Court.

'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 petition said.

It said the new rules bring back some elements of Section 66 A of the Act and go far beyond it, by way of prescription, to be administered, adjudicated upon and supervised by the government.

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

It said the section does not 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 cognisable offence relating to these.

Section 69A of the IT Act gives power to the government to issue directions for blocking for public access of any information through any computer resource.

Section 66 A of the IT Act had prescribed the punishment for sending offensive messages through communication service, etc.

The plea said that DigiPub News India Foundation, an association of digital news media organisations and of which petitioner foundation is a member, had sent a representation to the two ministries in February, asking for a repeal of the IT Rules, 2021.

However, no response has been received till date.