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Bombay High Court stays IT Rules provisions for digital news publishers

Court Judiciary

In an interim order, the court not only stayed provisions of the IT Rules but also held that it was unconstitutional and inappropriately elevated voluntary norms to mandatory status.

The Bombay High Court on Saturday stayed provisions of the IT Rules that would require digital news publishers to create a three-tier grievance mechanism and to observe a Code of Ethics. Operation of Rules 9(1) and 9(3) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, were stayed by the court. MediaNama has reviewed a copy of the order. This essentially means that news organisations are, for the interim, no longer required to set up grievance redressal mechanisms as laid out in the Rules.

The court reasoned in its interim order that it finds the requirements to be beyond the scope of the Rules’ parent legislation, the Information Technology Act, 2000, and violate the constitutional right to freedom of expression. The ruling was pronounced by Chief Justice GS Kulkarni in the matter of two PILs, AGIJ Promotion Of Nineteenonea Media Pvt Ltd & anr v. Union of India & anr, and Nikhil Mangesh Wagle v. Union of India. The final hearing has been set for September 27.

This is by far the most significant setback to the IT Rules, notified by the government in February to regulate social media companies, streaming services, and digital news publishers. While other challenges continue in other courts, and the Supreme Court is yet to hear a transfer petition by the government to bring those cases together, this judgment may bring relief to small media organizations who have argued that complying with the Rules would be burdensome and infringe on their freedom of expression.

Which provisions were stayed

Those provisions state that:

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Rule 9(1): A publisher referred to in rule 8 shall observe and adhere to the Code of Ethics laid down in the Appendix annexed to these rules.

Rule 9(3): For ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India, and for addressing the grievances made in relation to publishers under this Part, there shall be a three-tier structure as under—

(a) Level I – Self-regulation by the publishers;
(b) Level II – Self-regulation by the self-regulating bodies of the publishers;
(c) Level III – Oversight mechanism by the Central Government.

The Code of Ethics requires that online news publishers adhere to the following codes or norms:

(i) Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978;
(ii) Programme Code under section 5 of the Cable Television Networks Regulation) Act, 1995;
(iii) Content which is prohibited under any law for the time being in force shall not be published or transmitted.

Court’s approach

The court has for the moment only stayed the requirement of publishers to adhere to the three-tier structure; however, if the government’s inter-departmental committee issues orders for blocking of content online, as the Rules allow, publishers would likely have to heed such orders for the time being. However, the government argued that since the inter-departmental committee has not even been constituted, it was not necessary at this stage to stay these provisions:

We may observe that as far as Rule 14 is concerned, in our opinion, there is no immediate urgency inasmuch as inter-departmental committee is yet to be constituted. It is also required to be noted that, no material has been brought to our notice that the authorized officer as contemplated under sub-rule (2) of Rule 13 [whose role is to issue directions based on the committee’s recommendations] has been appointed. In these circumstances, the oversight mechanism which would be made effective by appointing inter-departmental committee itself has not taken effect. We, accordingly, grant liberty to the petitioners to urge for relief on this issue as and when the inter-departmental committee is constituted. — Bombay High Court

Ultra vires to the IT Act

One of the court’s main considerations was the argument that the IT Rules go beyond the scope of the IT Act, which petitioners argued was not passed for the regulation of news media. Article 14 reported that the government’s own advisers raised this concern.

In our opinion, Rule 9, prima facie, suffers from two illegalities – firstly, it imposes an obligation on the publishers of news and current affairs content and publishers of online curated content, to observe the Code of Ethics under a completely different statutory regime alien to the IT Act, namely, by applying norms of Journalistic Conduct of the Press Council of India under the [Press Council of India] Act and Programme Code under Section 5 of the [Cable Television Networks] Act. Further, Section 87 does not confer any power on the Central Government to frame rules contemplating such provisions under clauses (z) and(zg) of sub-section (2). Thus, it is difficult to accept the contention as urged by Mr. Singh that Rule 9 is intended to carry out the provisions of the IT Act.

[…]

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In our opinion, neither clause (z) nor clause (zg) of sub-section (2) of Section 87 [which provide for “the procedure and safeguards for blocking for access by the public” and “the guidelines to be observed by the intermediaries”] under which the 2021 Rules are framed would confer any power on the Central Government to frame a provision in the nature of Rule 9. Thus, in our prima facie opinion, Rule 9 appears to be ultra vires the provisions of the IT Act being beyond the delegated power. — Bombay High Court

Subordinate legislation that exceeds its mandate can be struck down, the court reasoned, based on Supreme Court precedent, but stopped short of issuing a wider constraint on the Rules before the final hearing.

Press Council of India norms “exalted” to mandatory nature

The court observed that by requiring news publishers online to adhere to norms that were formulated for other media in a different context, the government was inappropriately elevating voluntary norms to mandatory status.

It is prima facie difficult to comprehend as to how such fields which stand occupied by independent legislations can be brought within the purview of the impugned rules and substantive action can be taken for their violation under the impugned rules.

[…]

The Norms of Journalistic Conduct are the guidelines framed by the PCI laying down the standards of conduct which each journalist/editor/publisher ought to strive to maintain in the discharge of his/her duties as a member of the Press. The sanction behind the code, as is evident, is moral and not statutory. Even the PCI Act does not envisage anything more than to warn, admonish or censure the newspaper, the news agency, the editor or the journalist, or disapprove the conduct of the editor or the journalist, as the case may be, as action taken thereunder for non-adherence to the code of journalistic ethics. However, adherence and/or observance of moral standards in the code has been exalted to the status of a mandatory compliance. (emphasis court’s)

Unconstitutional, violates freedom of expression

“If a writer/editor/publisher has to adhere to or observe the Programme Code in toto, he would necessarily be precluded from criticizing an individual in respect of his public life,” the court observed.

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For proper administration of the State, it is healthy to invite criticism of all those who are in public service for the nation to have a structured growth but with the 2021 Rules in place, one would have to think twice before criticizing any such personality.

[…]

Allowing the operation of the 2021 Rules in its form and substance to operate would result in the writer/editor/publisher standing the risk of being punished and sanctioned, should the inter-departmental committee be not in favour of criticism of any public figure. It is, therefore, quite possible that the writer/editor/publisher on contravention of the provisions of clause (1) of Rule 9 of 2021 Rules, but without even transgressing the boundaries set by clause (2) of Article 19 of the Constitution, may expose himself/itself to punishment/sanction under the 2021 Rules. The indeterminate and wide terms of the Rules bring about a chilling effect qua the right of freedom of speech and expression of writers/editors/publishers because they can be hauled up for anything if such committee so wishes.

The court further criticised the Rules on constitutional grounds:

Rule 9 also prima facie appears to be infringing the constitutional guarantee of Freedom of Speech and Expression as conferred by Article 19(1)(a) in subjecting the publishers of news and current affairs content and publishers of online curated content subject to action under the statutory regime of the [Press Council of India] Act and the CTVN Act, which provides for an independent mechanism for any violation of the provisions of such legislation.

[…]

We prima facie find much substance in the contentions as urged on behalf of the petitioner that such transgression of powers occupied by different legislations cannot be disrupted by a subordinate legislation.

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I cover the digital content ecosystem and telecom for MediaNama.

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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