It is not just WhatsApp. Digital media rules face multiple legal challenges

While two petitions have been moved in Kerala high court (HC) against the guidelines, three others are in front of the Delhi HC, aside from WhatsApp’s latest challenge, contesting part II and III of the guidelines. The last petition has been filed in front of the Karnataka HC, by a Kannada news portal against the rules as they refer to digital news media platforms.

Also Read | Twitter will have to comply with new IT rules: HC

The guidelines also cover over the top platforms (OTT) such as Netflix, Amazon and Hotstar, which will have to implement a rigorous three-tier self-regulatory mechanism, with the apex body being headed by an official from the information and broadcasting ministry.

Twitter is at loggerheads with the central government over compliance with the new social media guidelines. It is yet to share details of its compliance officer with the ministry. Twitter last Thursday raised concerns regarding “intimidation tactics by the police” and with the “core elements” of the new social media and intermediary guidelines, prompting a strong response from the government which called the remarks an “attempt to dictate its terms”.

WhatsApp, although it has shared details of its compliance officer, sued the Union electronics and technology ministry over the new rules in Delhi HC last Wednesday.

As the impasse between the government and some of the social media companies continues, HT reviewed all the other petitions which have been filed and the concerns raised.

LiveLaw Media Private Limited and others vs Union of India and others

With the ambit of the government’s takedown powers extended to cover news media, LiveLaw, an online legal reporting website, with the help of digital rights organisation Internet Freedom Foundation on March 9 moved the Kerala HC, stating that the new rules impose an “unconstitutional three-tier complaints and adjudication structure” that is arbitrary and violated the rule of law and the separation of powers.

“Part III of the impugned Rules impermissibly extends the scope of the IT Act to publishers of online news, current affairs, and online curated content, and is thus ultra vires the parent statute, which does not contemplate the regulation of Digital News Media,” the petition states. “In substance, Part III imposes an unconstitutional three-tiered complaints-and- adjudication structure upon publishers, which makes the executive both the complainant and the judge on vital free speech questions involving blocking and take down of online material. This is both arbitrary and violates the rule of law and separation of powers, especially since there is no provision for the aggrieved publishers to appeal against the decision of the Inter-Departmental Committee consisting only of members of the executive, constituted under Rule.”

The writ petition further added that the regulation of news media is beyond the scope of section 69(A) or section 79 of the IT Act, and the regulatory mechanism constitutes an “unreasonable restriction to free speech”.

“The Intermediaries Rules 2021 violate Article 19(1)(a) and they cannot be justified as reasonable restrictions under Article 19(2) (i) Part II unreasonably restricts the right to freedom of speech and expression under Article 19(1)(a) of the Constitution,” the petition argued. It sought that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 be declared illegal, as it is unjust, unfair, manifestly arbitrary, for colourable exercise of power and also contrary to the basic structure of the Constitution.

On March 10, the Kerala HC issued a notice to the Centre, directing it to not take any “coercive actions against the Petitioner for non-compliance of Part III of the Rules”. It also ordered a limited stay on the implementation of the guidelines. The matter has since been adjourned.

Foundation for Independent Journalism and others vs Union of India and another

Another petition against the rules was moved by the Foundation for Independent Journalism on March 6 in the Delhi HC. The Foundation challenged the new rules stating that they represented “overreach by way of subordinate legislation” and imposition of government oversight with the stipulation of “vague conditions”.

“The present Petition challenges the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021” or “Impugned Rules”) as being ultra vires the Information Technology Act, 2000 (“parent Act”), in as much as they set up a classification of ‘publishers of news and current affairs content’ (“digital news portals”) as part of ‘digital media’, and seek to regulate these news portals under Part III of the Rules (“Impugned Part”) by imposing Government oversight and a ‘Code of Ethics’, which stipulates such vague conditions as ‘good taste’, ‘decency’ etc. - matters nowhere within the contemplation of the parent Act,” the plea states.

“The Petitioners bring out wholly digital news and current affairs publications and are therefore directly affected by this overreach by way of subordinate legislation. The Petitioners’ digital news portals publish news and views, as distinct from curated content. The present Petition challenges the IT Rules, 2021 only in so far as they affect digital news portals, and is not with reference to ‘publishers of online curated content’, i.e., OTT media platforms or any other entities sought to be regulated by the Impugned Rules,” it adds.

The petitioners sought that the rules be declared void and inoperative in so far as they apply to publishers of news and current affairs content.

The HC directed the Centre to file a counter-affidavit in the case.

Quint Digital Media Limited and another vs Union of India and another

The third organisation to move the court against the new rules was online news media website, The Quint, which on March 16, filed a petition in the Delhi HC saying that the rules were unconstitutional and went beyond the ambit of the IT Act.

“Although the Journalistic Norms under the Press Council Act have been incorporated, the rationale of self-regulation, that is, that the State should be kept out, and that such supervision be merely recommendatory, has been flouted by the Rules,” states the petition. “Other democratic countries like the UK and Australia class online news with print news, to be self-regulated, free of State control.”

The petition sought that part III of the Act that governs the rules be struck down as it vests “draconian powers” with the state.

“Creating a differential classification by way of subordinate legislation, when not contemplated by the parent IT Act is an overreach by itself and this has been done to specifically target digital news portals, by subjecting them to an unprecedented regulatory burden and State interference, which no other form of news publication is subject to,” the petitions states. “This overreach is aggravated by a virtual legislation by reference, inasmuch as the Rules incorporate the Journalistic Norms under the Press Council Act, the Programme Code under the Cable TV Act, and vest draconian powers and control in the State.”

The matter is pending before the court.

Sanjay Kumar Singh vs Union of India and others

Advocate Sanjay Kumar Singh has also challenged the new rules for being far too disproportionate and against the doctrine of parliamentary democracy as they were not vetted by the legislative body and introduced as a subordinate legislation.

“It is hard to imagine that mere tweets on Twitter or posts on other social media platform can pose any worthwhile threat to matters of integrity, security or sovereignty of India. The rules as they have been framed are far too disproportionate to any threat capable of materialising to security, integrity or sovereignty of India from tweets on Twitter or posts on other social media platforms,” states the petition.

The petition further added that the rules seem to be “far too hastily and casually drafted which is untenable especially when it deals with a matter of such paramount importance as freedom of speech and expression to a democracy”.

The matter is pending before the Delhi HC.

Truth Pro Foundation of India vs Union of India and others

The Foundation, a non-profit company that runs Pratidhvani — an independent Kannada news portal, has moved the Karnataka HC against the contentious rules stating that they introduce new concepts and regulations and legislate on the conduct of entities beyond the purview of the parent Act.

“The present Petition challenges the… [IT Rules, 2021] as being ultra vires the new Information Technology Act, 2000… in as much as they set up a classification of ‘publishers of news and current affairs content’ (“digital news portals”) as part of ‘digital media’, and seek to regulate these news portals under Part III of the Rules… by imposing Government oversight and a ‘Code of Ethics’, which stipulates such vague conditions as ‘good taste’, ‘decency’, etc. – matter nowhere within the contemplation of the parent Act,” the petition states.

It has sought a stay on the implementation of the guidelines in the “interest of justice and equity”.

Praveen Arimbrathodiyil vs Union of India WP(C) 9647/2021

An open-source programmer Praveen Arimbrathodiyil moved the Kerala HC against the guidelines on April 10, with legal assistance from Software Freedom Law Centre, India. The petition challenges the guidelines on the grounds that they “place unreasonable restrictions on users in expressing themselves online, thus impacting their right to free speech and expression and fundamental right to privacy”.

“The Writ Petition argues that the IT Rules, 2021 are vague, exceed the bounds of delegated legislation, place unreasonable restrictions on the exercise of #freespeech & expression, and violate the right to carry out an occupation, trade or business,” SFLC posted on Twitter. “The Petition also stresses upon the impact of the Intermediary Rules, 2021 upon FOSS entities. The Intermediary rules, 2021 fail to draw an intelligible differentia between not-for-profit FOSS communities and for profit proprietary companies.”

The petition further argues that the rules prescribe technology-based solutions such as automated tools which would “bring in inherent societal biases and prejudices leading to more problems than it intends to solve”.

The matter is pending before the Kerala HC.

The government’s response

The government has defended the new policy regime.

Union minister for electronics and information technology Ravi Shankar Prasad said, on May 27, that the new social media and intermediary guidelines were designed to empower citizens and prevent the “abuse and misuse” social media.

“The new Rules require the social media companies to set up an India based grievance redressal officer, compliance officer and nodal officer so that millions of users of social media who have a grievance get a forum for its redressal,” Prasad posted on Koo, the app which has come up as the Indian alternative to Twitter.

The ministry further stated that WhatsApp’s challenge to the rules were a “clear act of defiance”, and Twitter’s refusal to comply was a way of “dictating terms to the world’s largest democracy”. The government has repeatedly asserted that the rules provide a “light touch” mechanism to regulate the virtual space, with a focus on self regulation.