The Bombay High Court has stayed certain provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) in an interim order. It found that Rule 9 (1) and Rule 9 (3) of the new IT Rules were prima facie an intrusion of the petitioner’s rights and went beyond substantive law and the Information Technology Act. The petition in question was filed by a legal news website, The Leaflet as along with a public interest litigation by journalist Nikhil Wagle, seeking direction from the Court to restrain authorities from taking any coercive action against them for any failure to comply with the new rules. Specifically, the petitioners challenged Sections 9 (Observance and Adherence to Code of Ethics), 14 (Constitution of Inter-Departmental Committee), and 16 (Blocking of Information in Case of Emergency) of the new IT rules.
Rule 9 of the IT Rules has 3 clauses relating to the adherence by publishers to a Code of Ethics provided in the Rules. Rule 9(1) mandates the adherence to the Code of Ethics as provided in the Appendix, Rule 9(2) makes the publisher liable for any contravention of any law, while Rule 9(3) provides a three-tier structure for regulation and adherence. The three-tier structure is as follows:
Level I - Self-regulation by the publishers;
Level II - Self-regulation by the self-regulating bodies of the publishers;
Level III - Oversight mechanism by the Central Government.
While 9(2) will continue to operate, the other two subclauses have been stayed in the interim by the High Court. The petitioners had argued that the rules go far beyond permissible restrictions of freedom of speech and freedom of trade for digital news publishers, and are vague and draconian and can have a chilling effect on free speech. Further, the petitioners also contended that the IT Rules were arbitrary, illegal, irrational and unreasonable and contrary to the provisions of law including Article 14 (equality before the law), and Articles 19 (1) (a) (to freedom of speech and expression), 19 (1) (g) (to practise any profession, or to carry on any occupation, trade or business) of the Indian Constitution. On the other hand, the central government stated that any interim action would be premature given the nascent stage of the IT Rules. The division bench composed of Chief Justice Dipankar Datta and Justice Girish S Kulkarni found that the IT Rules had indeterminate and wide terms that are prima facie against the right to freedom of speech and expression that is enshrined in the Constitution. It observed that the implications of these provisions go beyond the “substantive law of IT Act” and if not stayed, people would be deprived of the liberty of thought and feel suffocated to exercise their right to freedom of speech and expression. The Code of Ethics presents a form of content regulation that would run clearly contrary to the well-recognised Constitutional ethos and principles. The bench did not stay Rule 14, stating that as the provision pertains to the inter-departmental committee and the same has not been constituted yet, it saw no immediate urgency to rule to that effect. On Rule 16, the court found that it is Pari Materia (on the same subject) to Rule 9 of 2009 IT Rules which are still in operation. It also observed that there were already provisions in the existing IT Act, 2009, among others, that made publications, web portals and intermediaries answerable for posting any objectionable content and made them liable for penal action. Therefore, it questioned the government as to the need for the IT Rules. Subsequent to this, the central government requested the court to stay operation of the interim order, for which the court gave time to file an affidavit in reply to the plea and rejoinder by the petitioners thereafter. It has posted the final hearing to September 27, 2021.