The Kerala High Court today issued notice on LiveLaw's plea challenging the Centre's new IT rules on regulating digital news media, social media intermediaries and OTT platform. The high court also issued interim orders restraining the Centre from taking coercive action against the website which is a "publisher of law reports and legal literature".
The developments in the Kerala High Court come a day after the Delhi High Court issued notice on a similar plea filed by the Foundation of Independent Journalism (FIJ) which is led by the editors of TheWire and The News Minute. The Delhi high court however has not granted any protection to the FIJ.
LiveLaw challenged the new rules—notified on February 25—on the grounds that they are "arbitrary, vague, disproportionate and unreasonable".
Rebutting the contentions, the Centre—represented by advocate Suvin Menon—argued that the origin of the rules could be traced to certain provisions of the Information and Technology Act, 2000. Just by not mentioning these provisions in the rules by itself do not make them bad in law, Menon argued.
Menon submitted that post-2010, social media activism has been in the high. Several news media outlets have developed. Are these persons not accountable?", he argued. To which, the judge responded that law reports must be exempted. Menon agreed, however added that while there was no problem with the reporting of the judgments, publication of articles need oversight.
"It is not that they are publishing everything that is transmitted to them. Articles that have personal opinion of the author, who is accountable?. They are also liable. Because they are providing the medium. Lakhs of people are reading these article," Menon argued.
Rebutting this, advocate Santosh Mathew, representing LiveLaw submitted: "I am not saying I am not liable. I am only saying under Section 69A IT Act they have no power to regulate me".
Mathews further argued that the 'self-regulatory body' envisioned in the Rules is "at the mercy of the Central Government".
"The irony is they call it "self-regulatory". This body has to be registered with the Ministry. Before registering, the Ministry will take a call if it is acceptable to them," Mathews said during the hearing. The rules impose onerous conditions on small organisations obligating them to appoint full-time grievance redressal officers who will need to deal with complaints within 24 hours, he added before seeking for and getting interim protection.
Rules create a "chilling effect" on digital news media: Plea in HC
The rules go beyond the scope of the parent act to include publishers of online news, current affairs, and online curated content, the plea said. The Rules impose 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 takedown of online material", it added.
The rules are designed to cause a "chilling effect" on digital news media and disproportionately infringe their right to exercise their fundamental right to free speech.
Representing the news website, advocate Santhosh Mathew, argued that the parent act—IT Act—does not empower the Centre to regulate digital media. The regulatory mechanism by way of the new rules are invasive, disproportionate, arbitrary and cannot be termed as "reasonable restrictions" under Article 19(2) of the Constitution.
"We are reporting judgments. Somebody to whom the judgment is not palatable, may make a grievance, and we are required to sit in appeal over the content", Mathew said to express how inconvenient the rules are. Mathew went on to argue that anybody who did not agree to articles and viewpoints published by LiveLaw could file a complaint.
"Mr A is writing an article. Somebody takes an objection. I am obliged to take it down. It could be a retired Supreme Court judge writing the article. I cannot issue a notice to him. This can put us in a lot of embarrassing situations"," LiveLaw quoted the lawyer as saying.
"The provision for 'review' under Rule 17 does not even provide any lip service to the rights of Digital News Media since the 'Review Committee' solely comprises of members of the executive (with the same Ministries as involved in the Inter-Departmental Committee); does not provide the aggrieved publisher with a right to be heard, and fails to provide any judicial oversight over the censorship complaint by Respondent No. 2(I&B Ministry)", the petition further read.
The Code of Ethics includes vague and loose terms which are liable for gross abuse. In 2015, the Supreme Court had struck down Section 66A of the IT Act in the Shreya Singhal judgment for its vagueness and looseness.
"LiveLaw, as an organization, seeks institutional accountability and is often called upon to take critical stances against institutions. The impugned Rules, especially the executive control over the grievance redressal and Oversight Mechanism, will have a chilling effect on the functioning of Petitioner No. 1 since it would effectively discourage any reporting that may not be palatable to institutions of power. Digital News Media outlets such as Petitioner No. 1 may be forced to self-censor content that even appears to stray close to the prohibited line (while being fully legal) rather than publish the content and risk legal consequences," the petition read.
"The chilling effect extends not only to the opinions published by Petitioner No. 1, but also to its factual reporting and live reporting of court proceedings. Individuals with vested interests may utilize the impugned Intermediary Rules to file baseless complaints. Even if these complaints do not result in any action because they lack merit, it would impose a huge financial and resource burden on a small organisation such as Petitioner No. 1 of responding to every complainant in 15 days, and then defending the publication before multiple appellate forums (Self-Regulatory Body and Oversight Mechanism), it added.
The impugned Rules would effectively force small Digital News Media entities to self-censor than publish any controversial or critical speech, regardless of its permissibility under law, the plea submitted.