Madras High Court stays some clauses of the new IT rules

Madras High Court stays some clauses of the new IT rules

The court felt that coercive application of IT Rules against intermediaries violates Article 19(1)(a); oversight mechanism could take from media of its independence

The Madras High Court has come down heavily on the contentious new Information Technology Rules by expressing deep concerns that its application could take away the independence of media and disintegrate the fourth pillar of democracy.

A bench comprising Chief Justice Sanjib Banerjee and Justice P.D. Audikesavalu stayed two clauses of the IT Rules, 2021, observing that the oversight mechanism prescribed in the rules appears to be aimed "at controlling the media by the government".

"Prima facie there is (a) substance that the oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar of the democracy may not at all be there," the bench said.

"By way of abundant caution, sub-rules 1 and 3 of Rule 9 of the said Rules of 2021 will remain stayed," the court ruled.

The court also noted in its interim order that if any action is taken citing Rules 3 and 7 of the IT Rules 2021 would be subject to the outcome of the challenge to the constitutional validity of the Rules. Rule 3 speaks about the obligation to exercise due diligence by intermediaries and Rule 7 provides for coercive action against intermediaries for breach of the provisions of the Rules.

These sub-sections of Rule 9 are part of the new Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021, for self-regulation by the publishers and oversight mechanism by the central government. These rules are related to digital news media having to follow a strict code of conduct while also providing for a three-tier structure for addressing grievances.

A Public Interest Litigation (PIL) was filed before the court by acclaimed Carnatic musician T.M. Krishna and another petition was moved by the Digital News Publishers Association (DNPA) as well as journalist Mukund Padmanabhan.

"If there is any action taken in terms of Rule 3 of the said Rules read with Rule 7 thereof during the interregnum, it will abide by the result of the petitions and further orders herein," the court said.

Senior Advocate Rajashekhar Rao representing the petitioners argued against the constitutional validity of Rules 3 and 7 of the IT Rules 2021. He submitted that Rules 3 and 7 of the IT Rules impose additional obligations on an intermediary which had not been incorporated in the parent legislation, i.e. the Information Technology Act, 2000 (IT Act, 2000). In particular, a grievance was raised against the incorporation of sub-clause (x) of Rule 3 (1) (b).

Rule 3 provides for the procedure for observing "due diligence by an intermediary," while Rule 7 states that if an intermediary fails to abide by the IT Rules, it would not be granted the protective exemption under Section 79 of the IT Act, 2000.

In such a scenario, Rule 7 states that the intermediary "shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code", advocate Rao submitted before the bench.

The court observed that that the new Rules confer additional obligations on intermediaries to the extent that criminal proceedings can be initiated against them for non-adherence to the guidelines prescribed by the Centre.

"Though it is submitted by learned Additional Solicitor General that Rule 3 of the present Rules are on similar lines as Rule 3 of the 2011 Rules, there appear to be key changes, particularly the introduction of sub-clause (x) in clause (b) of sub-rule (1) thereof and the additional obligation on the intermediary in, inter alia, clause (c). Any host of a website or platform would be an intermediary and an ordinary person may be denied access to the platform on the ipse dixit of the intermediary or on the intermediary's apprehension that such intermediary may be proceeded against", the Court opined.

The court further noted that by virtue of the newly introduced Section 79 (2) (c) of the IT Rules 2021, this exemption would not apply if the intermediary is found not to have observed that "guidelines as the Central Government may prescribe in this behalf."

The High Court referred to the Supreme Court judgment in Shreya Singhal v Union of India wherein Section 79(3)(b) of the 2000 Act had been read down and further held that unlawful acts beyond what is laid down in Article 19(2) of the Constitution "obviously cannot form any part of Section 79" of the Act.

Accordingly, the bench felt said that there is a substantial basis to the petitioners' assertion that Article 19 (1) (a) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries.

The court also referred to paragraph 122 of the judgement wherein the Supreme Court had observed, "It would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not."

The matter has been listed for further hearing on 27 October after the bench was informed that the Supreme Court is due to take up transfer petitions in the first week of October.

Senior Advocate MR Raman appeared for DNPA, Digital News Publishers Association and was assisted by Advocate Rahul Balaji.

Senior Advocate Rajshekhar Rao appeared for T.M. Krishna, assisted by Vrinda Bhandari, Abhinav Sekhri, Suhrith Parthasarthy and Tanmay Singh.