Under the government’s new Intermediary Liability and Digital Media Ethics Code Rules, 2021 for digital media firms and digital news platforms, the Ministry of Information and Broadcasting (MIB) has been awarded powers to block or modify online “news and current affairs” content through an Inter-Departmental Committee and Oversight Mechanism. Additionally, the new rules extend the government’s powers under Section 69A of the Information Technology Act, 2000 to block internet content and reprimand publishers in the interests of “sovereignty, integrity, defence of India and security of the State or preventing a cognisable offence.”
Under the rules, the government has set up an Inter-Departmental Committee (IDC), headed by the MIB, which can decide to issue orders that seek modifications or blocking on online news and current affairs content under Section 69A of the IT Act.
“The way they have issued these rules is ultra vires or outside the scope of the law. If the government wants to introduce, regulations for digital media, it should introduce a law,” a senior legal and constitutional expert told MediaNama. The government seems to think that because digital media companies are using internet infrastructure, which is governed by the IT Act, they can be regulated under the intermediary guidelines. This is a fundamental conceptual problem with the way government thinks about its rule-making power, this person said on the condition of anonymity.
“The IT Act is not about controlling content on the internet, that is not the purpose of the Act. The law may give the government the power to make rules, but the rules need to be in accordance with law. Since the IT Act does not define digital media, these rules are null and void. The IT Act had anyway given the government powers under Section 69A to block any internet content, but under these rules they have extended those powers under these rules to digital media which is questionable”—Senior legal and constitutional expert
Why this matters: Prior to issuing these new rules, the government had powers under provisions of the Indian Penal Code to prosecute cases of hate speech or speech that damaged the ‘sovereignty, integrity, defence and security aspects’, but it did not have any specific regulations on digital media. Further, Section 69A of the IT Act, so far, provided the government with the power to block online content and block websites in the interests of the state. Government orders under Section 69A of the IT Act would be issued to internet intermediaries as defined under the IT Act.
However, under these new rules, the government effectively has extended its blocking powers to digital media companies even though digital media companies are not defined as intermediaries in the IT Act.
A bit of context: The rules, among other things, require all digital media organisations and online news publishers to create a grievance redressal mechanism, set up a self-regulatory organisation (SRO) as well as follow codes which have only been applicable to print and TV news so far. The rules also specify procedures for when action may need to be taken against digital media entities to block certain content. A summary of the rules for digital media under the IT Act 2000 can be found here.
Rule making power is not legislative power
The government has used Section 87 of the IT Act, which provides the executive with rule making powers, to issue its guidelines for over-the-top streaming services, social media platforms and digital media entities. Since Section 87 of the Act only affords the government the power to frame rules, for industries or technologies that are clearly defined under the IT Act, it cannot use this section to introduce rules which are legislative in nature.
Tanu Banerjee, Partner, Khaitan & Co told MediaNama that the power to make subordinate legislation, or rules under a parent Act, must come from the parent Act itself. Since the new intermediary Rules have been notified under Section 87 of the IT Act, which allows the government to formulate rules and guidelines for intermediaries and procedures for blocking access to content, the government is deriving power from the parent legislation , she said.
“However, several aspects appear to be overreaching. For example, the Rules have introduced new definitions such as “news and current affairs” and “digital media” which are not defined in the parent, IT Act 2000. While some form of regulation for digital media from the Government was impending, it is arguable that the Rules go beyond the purposes envisaged under Section 87 of the IT Act, in as much as they lay down policies of law“— Tanu Banerjee, Partner, Khaitan & Co
Extending definition of intermediary
There is a fundamental issue with the new rules since they extend the definition of intermediary, indirectly to digital media companies when the IT Act does not grant the government powers to make rules for ‘digital media’ or ‘publishers’.
“The government has extended the definition of intermediary, under these rules, to include digital media companies since they use internet technology,” a senior media lawyer told MediaNama. “The government seems to believe that since digital news publishers use internet technology for publishing their content, it can use the IT Act to issue regulations on digital media entities. Bhe IT Act itself does not government the authority to issue regulations to digital media companies. Since digital news publishers use the internet to publish, the government has taken the view that such content falls under the ambit of the IT Act,” this person said on the condition of anonymity.
They added that while Section 87 of the IT Act is not in contention, the courts must determine whether the government has the powers under this section to issue new rules for areas that are not defined in the first place. “The scope of the government’s power needs clarification from the courts,” the lawyer said.
Extending executive power
Under the new rules, the government has extended its powers under Section 69A of the IT Act to issue orders against digital media companies, to either ‘warn, censure, admonish, reprimand, demand an apology, require a warning card or disclaimer, delete or modify content.’ This will be based on grievances received from the public either directly by the publisher, a SRO or the Ministry it self. The orders can be issued to digital media entities and publishers based on these grievances or if they are found to be in violation of compliance requirements under the new rules.
Since the government’s powers under Section 69A of the IT Act was upheld in the past, the government believes it can use the same powers to new areas like digital media and online news content, the legal and constitutional expert quoted above said.
“Under the Constitution, you can impose restrictions under broad categories of ‘sovereignty, integrity, defence or security interests’ by law, but a law cannot giveaway power to bureaucrats to decide what qualifies under these categories. While the Constitution frames these categories as restrictions on the state to curb freedom of speech under Article 19, under Section 69A of the IT Act the government uses these terms and categories to expand its powers to restrict speech. This a fundamental issue that stems from the Supreme Court’s judgement in Shreya Singhal vs Union of India, wherein it did not limit the scope of Section 69A of the IT Act. So the government believes it can use these terms under the IT Act to extend similar blocking powers to digital media companies“—Senior legal and constitutional expert
According to Namita Viswanath, Partner, Induslaw told MediaNama, one could argue that online news publishers have tougher rules to follow, since they are now governed by these rules under the IT Act whereas traditional news organisations do not. Since Section 69A of the IT Act now applies to digital news and not traditional organisations, “the government has the ability to block access to content on the grounds of detection and investigation, and not just once an unlawful act has been committed,” she said.
“Under the 3-tier redressal system, the ultimate authority will rest with bureaucrats of the MIB. The MIB can bypass lower levels of the grievance redressal system as well, which means the executive’s power has widened over digital media publishers,”— Namita Viswanath, Partner, Induslaw
Diminishing role of the judiciary
While publishers can challenge government orders under these rules in a court of law, the grievance redressal framework envisaged by the government has left the judiciary out of the process. Under these rules, all grievances received by publishers, SROs or the Ministry will be overseen by the government. Which means that based on a grievance against a specific news publisher, the government can issue an order to the publisher to alter, modify or block content. The publisher will have to comply with the order in a timely fashion, and only thereafter can it challenge the same in a court of law.
“I am surprised the judiciary has not taken cognisance of this since the government is bypassing their domain. It would be interesting to see if the court takes care of their domain or will they let the government hijack that. For me, that is most alarming,” Abhindnan Sekhri, co-founder, Newslaundry told MediaNama. Under these rules the government can take action against any news publication based on just an email, in an age when hashtags that are trending call for some form of retribution against journalists, he said.
“They have bypassed the judiciary in terms of the criteria for grievances, in the age of defamation suits and twitter trolls. There is a judicial process for that. So does this means you do not have to go to the courts to pull down a website because you are being defamed? By that logic, MJ Akbar need not have gone to court, he could have approached the Ministry and all of Priya Ramani’s articles would have been pulled down”—Abhindnan Sekhri, co-founder, Newslaundry and General Secretary, DIGIPub News India Foundation
Weak self-regulatory system
While the government has extended Section 69A of the IT Act over digital media content and news publishers, the 3-tier grievance redressal system envisaged under the new IT rules is weak since the government will always have the final say on taking action against digital media companies and online news publishers. Banerjee of Khaitan & Co says that technically while the self-regulatory system is envisioned to be a 3-tier system, effectively it is all orders passed against a publisher require the approval of the Secretary of the MIB.
“The self-regulatory bodies do not by themselves have powers to issue directions for deletion or modification of any unlawful content. For taking such an action, it can only refer such content to the Government’s oversight mechanism. Therefore, any direction or order to remove or modify content will eventually be routed through the Government, despite there being a two-level self-regulatory mechanism.”—Tanu Banerjee, Partner, Khaitan & Co
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