Digital Media Rules Challenged: Delhi High Court Seeks Centre's Reply

The Delhi High Court issued notice on a plea challenging the Centre's new rules under the Information Technology (IT) Act, 2000 which seek to regulate intermediaries, OTT platforms and digital news media. Chief Justice DN Patel and Justice Jasmeet Singh of the Delhi High Court directed the Centre to file their replies in four weeks.

"The scope of the rules under the new act is far beyond anything that is acceptable in a democracy," advocate Nitya Ramakrishnan argued in the hearing today. The new rules bring back certain provisions of section 66A of the IT Act which was struck down by the Supreme Court, she added.

The plea was filed by the Foundation of Independent Journalism (FIJ) led by editors Siddharth Vardarajan and MK Venu of TheWire along with Dhanya Rajendran, editor of The News Minute. The petition suggests that the new rules introduce a special class of entities purely on the strength of their being publishers of news and current affairs content and subject them to an "adjudicatory mechanism parallel to Courts of law, on a range of grounds which are not even offences under the parent Act".

It sets up a regulatory mechanism for digital media that is beyond the powers of the parent Act, which if allowed to stand would be "so arbitrary and unwarranted an intrusion on expression", as to render it ultra vires the parent Act.

The Centre's notified new rules under the IT Act on February 25 proposing significant changes and new regulatory mechanism for internet intermediaries, digital media outlets and streaming services. Announcing the rules, IT minister Ravi Shankar Prasad said that the government was empowering ordinary users of social media services, while Information & Broadcasting (I&B) Minister Prakash Javadekar said the rules were basically a "soft touch oversight mechanism".

Rebutting these claims, the plea submits that the new rules simply allow the Government to interfere on the "merest" of complaints. "The hearing in the high court went very well where the Chief Justice DN Patel seemed to understand that digital news publishers are not intermediaries…so overall a great beginning," Vardarajan said after the hearing concluded.

Also read: Keep Media Free Of All Executive Control: DigiPub To Government

Centre's new rules far beyond the scope of the parent act

The scope of the parent Act is limited to the recognition of electronic data and refers to entities and content in very generic terms. The parent act contemplates regulation of content only by creating a select set of offences (cyber terrorism, sexually explicit material and blocking sites in the country's interest), to be prosecuted and judicially assessed, the new rules however go far beyond the scope envisioned here.

Offences relating to sexually explicit material etc. are generally not applicable to news and current affairs publications, the plea added. Only intermediaries, who have immunity from liability for any third-party information, data, or communication link made available or hosted by them, are subject to a Government action of blocking.

The Rules introduce a special class of entities obligating digital news media to follow a Code of Ethics and requiring them to set up a 'grievance' redressal mechanism to deals with "simply 'any' person's complaint, wherein every which 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, the Centre's interference can be "triggered" upon the merest complaint on all manners of content – far beyond that which is mentioned in Section 69-A which allows the government to block sites in the interest of the country's defence and sovereignty.

"The complaint may simply be that some content in a news report or editorial is a 'half-truth' or adverse to the social or moral life of the country. Government oversight of news media content lies nowhere within the scope of the Act," the plea further read.

The plea, drafted by advocate Prasanna S further submits that the question is not whether news agencies and commentators on current affairs should be subjected to a Code of Ethics, but whether the "regulation and oversight by the Government or its agents can be prescribed by the Rules when not contemplated by the parent Act (though such an exercise even by Parliament would be open to serious challenge)."

Also Read: Govt Announces New Rules For Digital Media, OTT And Social Media Platforms

New rules create a distinct class for digital news media

FIJ suggest that the rules, apart from being beyond the scope of the parent Act, 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.

It added that there was no scope to dictate content to news media portals even by way of Section 69-A—the kill switch—which envisages only two targets of its directions, i.e. an "agency of the Government" or "intermediary".

The Petitioners are neither.

The petition further argues that the new rules bring back some elements of Section 66-A which was struck down by the Supreme Court in its 2015 Shreya Singhal verdict.