On August 14, the Bombay High Court through an interim order stayed some provisions of the Information Technology Rules, 2021, which regulate ‘intermediaries’ (social media and communication platforms, search engines, telecom/network service providers etc.) and digital media ranging from news platforms to streaming platforms.
Since coming into effect in February, the IT rules have faced criticism from different quarters. Considering the broad ambit of the IT rules, their validity has been challenged by various stakeholders across various high courts. In this context, the Bombay High Court’s order is a ray of hope for the industry, and more specifically to digital media.
Code Of Ethics And Dissent
The court stayed the IT rules to the extent they mandate digital media to comply with the ‘Code of Ethics’ (CoE) prescribed under these IT rules, observing that it appears to be an unconstitutional restriction on the fundamental right to freedom of speech.
The CoE makes it mandatory for publishers of online news and current affairs and online curated content to comply with norms of (i) journalistic conduct prescribed by the Press Council of India under the Press Council Act, 1978; and (ii) the programme code prescribed under the Cable Television Networks (Regulation) Act, 1995 — two enactments alien to the Information Technology Act, 2000.
It observed that this has resulted in norms of journalistic conduct, which were otherwise only moral standards, being exalted to the status of a mandatory compliance, and extension of the programme code to online content, which it was never intended to govern. The court observed that dissent is vital in democracy and the IT rules created an unreasonable risk of punishment for otherwise legal criticism of a public figure.
On the other hand, the court refused to stay the provisions of the IT rules empowering the government to block information in case of an emergency, holding it to be a reasonable restriction on the fundamental right to freedom of speech, and in line with the already existing Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. The court also refused to grant any relief to intermediaries under the IT rules, although on technical grounds.
The new IT rules contain two sets of regulations: the first imposing obligations and due-diligence requirements for classes of ‘intermediaries’; and the second, regulating platforms which curate and provide digital media content such as news, web-series, podcasts, etc.
One of the difficulties cited by platforms against these rules was that by imposing these obligations and a mandatory CoE, the government is indirectly limiting the free flow of information on the Internet. For example, according to this CoE, publishers of digital media are required to ‘exercise due caution and discretion’ before transmitting any content which may be deemed as anti-national or inciting disorder in the society. For news platforms, this may have grave implications preventing them from freely and fairly commenting on newsworthy developments and current affairs particularly, and sensitive matters such as political or religious tension in society.
That said, the concerns of intermediaries remain unaddressed including the technical and operational changes that intermediaries now have to undertake. In particular, social media and communication platforms having over 5 million users in India will have to implement necessary changes such as deploying personnel in India, enable tracing of users in certain cases, etc.
Regulatory censorship of online media has already been a source of debate. Now it is even more pressing as more online platforms will be exposed to such restrictive orders. Simply put, this interim order does not address all the issues raised by the publishers of digital media while providing some temporary relief to them.
Prepare To Follow
It is important to consider that the Bombay High Court’s order is temporary in nature and this case is listed for the final hearing on September 27. The government is expected to challenge this order before the Supreme Court. In another proceeding challenging the IT rules before the Delhi High Court, the government has filed its reply stating that, among other things, it is justified to regulate digital media publishers under the IT Act as they are ‘originators’ of ‘electronic messages’, and the CoE is in conformity with the permissible restrictions on freedom of speech.
The government has also moved an application for transfer of the various petitions filed/pending in different high courts challenging the IT rules to the Supreme Court. Ultimately the fate of the IT rules, and the compliance requirements for digital media, will depend on the outcome of these proceedings.
The digital media industry should, therefore, remain prepared to comply with the CoE under the IT rules in case the interim order of the court is not confirmed or vacated in appeal.
(Madhav Khosla and Tanya Varshney also contributed to this article).
Anushka Sharda is Partner, and Harsh Walia is Partner, Khaitan & Co.Views are personal and do not represent the stand of this publication.