Don’t Control Digital News: Pleas Challenging New IT Rules Decoded

The Kerala High Court on Wednesday, 10 March, issued a notice to the Centre over a plea moved by LiveLaw India, a legal media portal, challenging the validity of the new IT rules. In a similar petition, just a day earlier, the Foundation of Independent Journalists had argued before the Delhi High Court that the Centre’s new rules were ‘unconstitutional’.

The petitioners have claimed that these rules are ‘palpably illegal’ and an attempt to seek control to regulate digital news media when the parent statute nowhere provides for such a remit.’ They argue that the central government has no authority to regulate the content on digital media under these rules as the parent legislation, the IT Act, itself doesn’t apply to news portals.

Why have the digital media houses challenged these rules and on what grounds? Does the IT Act allow the Central government to formulate such rules to regulate digital media?

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 Information Technology 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:

1. Defining offences such as cyber-terrorism, sharing of obscene or sexually explicit material, child pornography, and identity theft, and providing punishment for the same.
2. 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, headed by an ‘Authorised Officer’ of the Government of India, and 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 Government 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 petitioners have 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.”