The regulatory mechanisms prescribed for digital news portals in the IT Intermediary Rules 2021, notified last month, are dealing with matters that are nowhere mentioned in the parent act — the Information Technology Act, 2000, said The Foundation for Independent Journalism and others in their petition challenging the new rules. Hence the Rules are ultra vires (beyond the scope) of the parent act, and need to declared as “void and inoperative”, reads the petition filed in the Delhi High Court earlier this week.
On Tuesday, the Delhi HCt issued a notice to the central government in response to the petition filed by the FIJ (a trust which owns The Wire), its founding editor MK Venu and Dhanya Rajendran, founder and editor-in-chief of The News Minute. The petitioners claimed that the entirety of Part III of the Rules, which deal with digital media publishers, is ultra vires the IT Act. They called the Rules an overreach by way of subordinate legislation.
For more context on how the IT Rules propose to regulate digital media, read our summary.
9 arguments made in the petition
- Rules allow government to dictate content on digital news portals: The petition states the Rules enable the government to virtually dictate content to digital news portals. The Rules, it said, subjects “news and current affairs content” — a specific and targeted class — to a loose-ranging “Code of Ethics”, which will be overseen by the central government.
- Brief goes beyond IT Act’s mandate: The IT Act deals only with generic users of information technology, and provides for regulation of offences in only cases related to cyber terrorism, obscene material, sexually explicit material, child pornography, and other offences such tampering.
“Save and except for providing against a narrow band of content by way of offences and blocking public access by way of a direction to intermediaries, again, on limited grounds, the parent Act does not contemplate any regulation of content, but the Impugned Rules do.”
“It is well-settled in law that there is no unlimited right of delegation, and that subordinate legislation cannot go beyond the object and the scope of the parent Act. Any Rule or Regulation made in exercise of delegated power has to be in consonance with the parent Act, and if such Rule or Regulation goes beyond what the parent Act contemplates, then it becomes ultra vires the parent Act.”
“Allowing a regulatory regime to be established in respect of the digital media industry is like allowing power looms to be regulated under the Electricity Act merely because they employ and use electric power in the course of their business; or allowing the practice and profession of plumbing to be regulated under the Water Act.”
- Rules go beyond rule-making powers of Section 87: The Rules draw their power from Section 87 of the IT Act, which gives the government the power to make rules through subordinated legislation. In fact, Section 87(2)(zg) in particular relates to Section 79 of the IT Act, which affords safe harbour protections to internet intermediaries.However, the petition argues, the Rules themselves make it clear that publishers are distinct from intermediaries. “Note that a publisher is not even defined or dealt with in the parent Act. Therefore, Section 79 does not concern any non- intermediary news media platform, and the Impugned Part cannot be sourced to Section 87(2)(zg),” the petition said.
Similarly, Section 87(2)(z) relates to Section 69-A, which has also been referred to in the Rules, is limited to issuing blocking orders to internet intermediaries. But this section in the IT Act does not contemplate regulating news media at all, it argues. “Most of the matters in the Code of Ethics are beyond Section 69-A even otherwise,” it added.
- Regulation of digital news media needs law, not rule-making: Regulation of digital or online news media is an essential legislative function, the petition argues. Rule-making powers do not allow for the delegation of an essential legislative function, the petition said.
“No reading of the rule-making power will allow for an entire regulatory regime for all digital news media entities without express statutory sanction, for that will run the danger of adversely affecting fundamental rights. Given such grave consequences, rule-making power has to be read strictly.”
- Code of ethics extremely broad, steps out of Section 69-A remit: The petition notes that publishers of news and current affairs content are supposed to follow a Code of Ethics prescribed in the Rules. This Code would encompass existing journalistic guidelines issued by Press Council of India under the Press Council Act, 1978 and the Programme Code under Cable Television Networks (Regulation) Act, 1995. The rules further state that publishers would need to safeguard against any content that is prohibited under any law in force.
The petition argues that the PCI’s Norms are extremely broad, covering subjective terms such as “good taste”, “half-truths”and “decency”. Thus, by incorporating such vague norms, the Rules have stepped outside the remit of Section 69-A, which was only upheld because of its narrow scope.
- Section 69-A orders are for blocking on ‘extraordinary grounds’: Orders under Section 69A of the IT Act are issued only on extraordinary grounds, such as in the interest or national security, and isn’t to regulate or censor news media, the petition argues. These orders are sent to internet intermediaries and ISPs to delete social media posts or to block access to webpages.
“But in no manner does the parent Section empower the Government to direct publishers to delete content, make changes, or publish apologies. The Rules cannot therefore regulate digital news media by requiring them to abide by the Code of Ethics, by extending other legislations and Rules to digital news media. Therefore, the IT Rules, 2021 go completely beyond the object and scope of Section 69-A of the parent Act.”
- Rules go even beyond 66-A, which was struck down: The petition notes that Supreme Court’s Shreya Singhal judgement from 2015 had struck down Section 66-A of the Act on grounds of vagueness over what qualified as an offence. But the new Rules have expanded the scope of the Act by providing for a Code of Ethics and a three-tier regulatory system to administer it with the vague terms mentioned above, it said.
“Therefore, such an oversight includes and extends far beyond categories of content as provided for under Section 66-A, which was struck-down in Shreya Singhal. Furthermore, the three-tier regulatory system also has the power to censure, warn, require 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.”
- Government oversight is far too much: The Rules have prescribed a three-tier compliance mechanism. The first level deals with self regulation by publisher (through a grievance redressal mechanism) and the second level, envisages self-regulation by an association of publishers. The final level is an inter-departmental committee headed by a government officer, which can take up complaints referred to it by the self-regulatory organisation at level 2, or complaints received by the I&B ministry directly. This committee can recommend that the I&B Ministry issue binding directions to publishers for “perceived non-compliance”. Additionally, the I&B secretary has emergency powers to pass interim blocking orders without even having to give publishers an opportunity of a hearing.
“[T]he Committee also has the power to recommend to the Ministry, draconian measures such as ordering the modification, deletion or blocking of content. Such drastic orders are subject only to approval of the Secretary of the Ministry of I&B.”
- Inter-departmental committee is stepping into judiciary’s role: The inter-departmental committee prescribed in the Rules has the power to recommend to the I&B ministry “draconian measures” such as ordering the deletion, modification or blocking of content.
“This is an adjudicatory mechanism parallel to Court of law, which is completely beyond the object and scope of the parent Act”