The Kerala High Court on Wednesday, 10 March, restricted the Centre from taking any action against LiveLaw under Part III of the new rules till the pendency of the present petition.
While providing interim protection to LiveLaw, the court has also issued a notice to the government over a plea challenging the validity of the new IT rules.
The petition was filed by LiveLaw News Media Pvt Ltd challenging the Rules as illegal and in violation of Articles13,14, 19(1)(a), 19(1)(g), and 21 of the Constitution of India and also in contravention of the parent legislation, the Information Technology Act.
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’.
New IT Rules 'Unconstitutional': Petitioner
While recognising LiveLaw as a ‘news publisher’ under the rules, the single bench of Justice PV Asha granted interim protection to LiveLaw from any coercive action under Part III of the new Code of Media Ethics. The court said:
Respondents (Central government) shall not take any coercive action against petitioners (LiveLaw) with reference to provisions contained in Part III of the Rules. The petitioner is a publisher of law reports and legal literature.
Appearing for the petitioner, advocate Santosh Mathew argued that Section 87 of the IT Act does not empower the Centre to make a regulatory framework for news media.
Mathew further argued that the term ‘digital media’ is neither defined in the IT Act nor in the newly released rules. He went on to submit that LiveLaw publishes articles and opinion pieces on legal affairs, and persons who may disagree with such views can use the rules to file complaints.
The petitioner has contended that the ‘self-regulatory’ mechanism under the rules is ‘ironical’ as it requires prior approval of the concerned ministry.
Citing the Supreme Court’s judgment in the Shrey Singhal case, Mathew argued that the new Code of Ethics attempts to go against the spirit of procedural safeguards established in the judgment.
While seeking interim protection for LiveLaw, Mathew highlighted the specific concerns of the media portal and said:
“Somebody to whom the judgment is not palatable, may make a grievance, and we are required to sit in appeal over the content... We cannot be prosecuted because of somebody sitting in Delhi deciding the so-called ethical standards.”
In response, the Central government argued that the source of the power of the rules can be traced to Sections 69A and 69B of the IT Act. Even if those provisions are not mentioned in the rules, that by itself will not make them bad in law, as the substantive rule-making power of the authority is not affected by the mere non-mentioning of the source of power.
The New IT Rules
The 30-page document, titled Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, define social media companies and suggest a three-tier mechanism for regulation of all online media, which confers blocking powers to an inter-ministerial committee.
These rules also require social media intermediaries like Facebook and Twitter to deploy “automated tools” like AI to remove objectionable content and also make it mandatory for messaging platforms like WhatsApp to enable traceability of the first originator of the message, a move that could compromise end-to-end encryption.
The government’s recent move to introduce the new IT Rules, which mean to regulate social media and digital news platforms, may have been part of a roadmap planned out by a Group of Ministers (GoM) during June and July 2020, at the height of the COVID-19 pandemic, a recently accessed report shows.
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