New Delhi: The Madras High Court Thursday reiterated an order passed by the Bombay High Court last month that stayed the operation of two sub-clauses of the Information Technology Rules, 2021.
These clauses — 9(1) and 9(3) — require publishers of news on the internet and OTT (over-the-top) platforms, like Netflix and Prime Video, to comply with a ‘Code of Ethics’ and also prescribe a three-tier grievance redressal mechanism headed by the government.
The courts observed that the two clauses infringed on the right to freedom of speech and expression, guaranteed under the Constitution.
The Ministry of Electronics and Information Technology (MeitY) had notified the IT Rules on 25 February, under the Information Technology Act, 2000. However, since then, they have faced legal challenges across the country, with at least 17 petitions filed in high courts of Kerala, Delhi, Karnataka, Madras, Calcutta and Bombay, challenging different provisions of these rules.
While most other high courts have only issued notice on these petitions so far, the high courts of Madras and Bombay are the only ones to stay the operation of the two sub-rules.
Since these rules specifically affect online content publishers, ThePrint explains what this means for digital news media and OTT platforms.
What the rules say
Rule 9, partially stayed by the two high courts, talks about observing and adhering to the code of ethics that is annexed to the rules. Clause 1 of the rule specifically states that all publishers, which includes those who publish news, current affairs and content on OTT platforms, have to adhere to the code.
The code of ethics requires publishers dealing with news and current affairs to adhere to the norms of journalistic conduct of the Press Council of India under the Press Council Act 1978 and the programme code under the Cable Television Networks (Regulation) Act 1995. The two sets of norms determine standards in print media and a framework for TV programmes, respectively.
For OTT platforms, this code lays down five broad principles and guidelines to adhere to. Among other things, it requires platforms to take into consideration India’s “multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group”.
Besides this, it includes requirements for parental locks and age verification mechanisms, depending on the nature of the content.
Clause 3 of Rule 9, meanwhile, provides a three-tier grievance redressal mechanism to ensure that the code is adhered to by online content publishers.
The first level under this mechanism is self-regulation by the publishers, the second level is self regulation by the self-regulating bodies of publishers and the third level is an oversight mechanism by the central government.
Anyone with a grievance concerning content published needs to first approach the publisher and move up the levels in case the grievance is not resolved or addressed within the stipulated time period. Chapters II, III and IV of the Rules make more in-depth provisions for the three levels of this mechanism.
Bombay HC order on the rules
The Bombay HC order, dated 14 August, stayed Rules 9(1) and 9(3), noting that the clauses obligate publishers of online news to another set of rules, which is under a statutory regime that is completely different and separate from the IT Act.
The order came on two pleas filed by legal news portal The Leaflet and by Mumbai-based journalist Nikhil Wagle, respectively.
The court also noted that guidelines under the Code of Ethics, like the ones framed by the Press Council of India are “moral and not statutory”.
However, it said, observance of these moral guidelines have been made mandatory through the IT Rules. The court further said that Rule 9 was beyond the power delegated by the IT Act as well.
The HC therefore stayed Rule 9, stating that it prima facie appeared to be infringing on the right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
It asserted that “dissent in democracy is vital” and that with the 2021 Rules in place, “one would have to think twice before criticizing any such personality, even if the writer/editor/publisher may have good reasons to do so without resorting to defamation and without inviting action under any other provision of law”.
In an order on 16 September, the Madras HC observed that media houses and OTT platforms had been asked to comply with Rule 9 despite the Bombay High Court order. It also asserted that the stay by the Bombay HC should “have a pan-India effect”.
What this means for OTT platforms, news publishers
A primary consequence of the two orders is that digital news platforms and OTT platforms cannot be asked to comply with the Code of Ethics or be subject to the grievance redressal mechanism for the time being.
The Madras HC also said that any action taken under Rules 3 and 7 of the IT guidelines during the pendency of the petitions will be subject to the eventual result of these petitions.
Rule 3 makes it an internet intermediary’s responsibility to inform the user (for example, a social media user) to not post anything that is “patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person”. Non-compliance allows intermediaries to terminate access or user rights of users.
The current definition of intermediaries includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-marketplaces, and platforms such as Facebook, Twitter, Blogspot and WordPress.
Rule 7, meanwhile, makes an intermediary liable for punishment under any law, including the Indian Penal Code, if it fails to comply with the IT Rules, taking away the “safe harbour” defence under Section 79 of the IT Act. Section 79 provides internet intermediaries protection against legal liability for content posted on their websites by third parties.
Therefore, if any action is taken under rules 3 and 9, and the IT rules are subsequently struck down by the court, the punitive action against the intermediary will also be rendered ineffective.
(Edited by Rachel John)