‘Chilling Effect on Media’: The Quint Challenges New IT Rules
The Quint has challenged the validity of regulating digital news portals in the new IT Rules before Delhi HC.
The Quint has moved the Delhi High Court, challenging the regulation of digital news portals under the newly released Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021.
Calling the regulation of digital news under the Information Technology Act framework "unconstitutional", the petitioner organisation believed that the new rules have a “chilling effect on media freedom”.
Plea to Stay the Operation of New Rules
Apart from challenging the constitutional validity of the new IT Rules, the petitioner also has asked the court to impose a stay on the operation of the said rules till the pendency of the case. The demand for the stay was made to ensure that no media portals were subjected to the “draconian” provisions of the new rules till the time their legality has been proved before the court.
On Friday, 19 March, the Bench headed by Chief Justice DN Patel of the Delhi High Court issued a notice to the central government to file a reply to the present petition. The court further directed the government to give reasons as to why the operation of the rules should not be stayed.
In order to protect the interests of the digital news portals, the court assured the petitioner organisation that it will be allowed to move an urgent application if there’s any coercive step taken against it under the challenged rules.
This is the third petition moved by a digital news portal challenging the inclusion of “digital news and current affairs content” under the new IT Rules. Earlier, the Kerala High Court provided interim protection to LiveLaw India from any coercive action under Part III of the rules. This decision came just days after the Delhi High Court had issued a notice in a similar plea moved by The Wire.
The Delhi High Court will be hearing The Quint’s petition along with that filed by The Wire on 16 April.
Can News Portals Be Equated With Digital Media?
One of the major contentions of the petitioners is that the new rules unjustly classify "news media and current affairs content" as "digital media", to make them subject to the government’s Code of Ethics.
They argue that news portals cannot be classified as "digital media", because unlike the curated content hosted by digital media, news portals publish news and views. Therefore, the petitioners have restricted the legal challenge to the new rules only to their applicability to news portals and not to OTT platforms.
Can News Portals Be Regulated Under IT Act?
The petitioners argue that the Information Technology Act "neither intends nor provides" for regulation of news portals. News media can only be regulated under the Press Council Act, 1978, while the Cable TV (Regulation) Act, 1995, provides for a "programme code" for regulating content on TV networks.
Unlike the Press Council Act, the object and purpose of the IT Act is restricted to legal recognition and authentication of electronic data, electronic communication, and receipts of electronic data as evidence.
The Information Technology Act doesn’t provide for the regulation of electronic content barring two scenarios:
- Defining offences such as cyberterrorism, sharing of obscene or sexually explicit material, child pornography, and identity theft, and providing punishment for the same.
- Issuing a direction to an intermediary under Section 69A, for blocking a website in the interest of “sovereignty and integrity of India, defence of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to these”.
Can News Portals Be Called ‘Intermediaries’ Under IT Act?
Section 69 of the Information Technology Act, which provides for blocking of a website, only stipulates directions to be issued to intermediaries. Petitioners have contended that news portals can’t be classified as "intermediaries" for the purpose of Section 69.
The petitioners cite the Supreme Court’s judgment in the Shreya Singhal case, where it was held that directions under Section 69 can only be issued either to an "agency of the government" or an "intermediary".
Therefore, the petitioners have argued that news portals can’t be included in rules made to regulate content under Section 69 of the Act, as they are neither "government agencies" nor "intermediaries".
In Shreya Singhal v. Union of India, the Supreme Court had struck down Section 66A of the IT Act, saying that grounds such as “annoyance” or “offensive” are too vague to penalise content. The petitioners argued that by using terms such as “half-truths”, “decency”, and “good taste” in the new Digital Media Code, the central government has attempted to use its general rule-making power to unlawfully revive elements of Section 66A.
The government’s newly proposed rules also provide for a three-tier Grievance Redressal system.
- First, every publisher needs to have a Grievance Redressal Officer to take up complaints by “any person having a grievance regarding content”.
- Second, publishers or their associations have to create an appellate self-regulating body, with the IT Ministry’s approval, which shall have the power to warn or censure, requiring a publisher to apologise or display a warning/disclaimer. This body shall also report non-compliance and certain classes of content to the Tier-3 body.
- Third, the creation of another appellate body – an Inter-Departmental Committee – must be headed by an ‘Authorised Officer’ of the Government of India, consisting chiefly of serving officials from various ministries. Apart from being the appellate body, it can also take complaints directly referred to it by the Information and Broadcasting (I&B) Ministry. It can recommend to the I&B Ministry the modification, deletion, or blocking of content in the case of certain perceived dangers.
Does the 3-Tier Grievance Redressal System Amount to Govt Overreach?
Petitioners have argued that this entire idea of “self-regulation" is a misnomer, as the setting up of an appellate body requires approval from the Ministry. It triggers the possibility of the central government’s interference over any content merely on the basis on one complaint. The petition reads:
“The Rules introduce a special class of entities, obligate a Code of Ethics and further, obligate digital news portals and other entities to set up a ‘grievance’ redressal mechanism that deals with simply ‘any’ person’s complaint, wherein every decision is subject to scrutiny of a higher regulatory tier, and non-compliance may be escalated to a still higher tier that is headed by a serving Central Government Officer and a Committee of other serving officers. Simply put, upon the merest complaint, central government interference is triggered on all manner of content – far beyond that which is mentioned in Section 69-A.”
What Are We Fighting Against?
The petitioner has contended that the question is not whether news agencies should be subjected to the Code of Ethics or not. The real question is whether the central government can prescribe oversight and regulation through rules when this is not the intent of the parent Act?
While claiming that the IT Act doesn’t contemplate regulating of news media, the petition argues that:
“The IT Rules, 2021, however, introduce a distinct category of entities, purely on the strength of their being publishers of news and current affairs content, to be subjected to an adjudicatory mechanism parallel to Courts of law, on a range of grounds which are not even offences under the parent Act.”
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