Two online media platforms. Two high courts. And a common fight.
That the recently notified rules for online news publishers have gone beyond information technology law is vague and violates the principle of separation of powers.
The first petition was filed in Delhi by the Foundation For Independent Journalism (which runs the news portal The Wire) and senior journalist Dhanya Rajendran, also editor-in-chief of The News Minute, while the second was filed in the Kerala High Court – filed by legal News website LiveLaw.
The petition before the Delhi Supreme Court only challenged Part III of the rules that establish a code of ethics and other guidelines for digital news media.
LiveLaw’s petition challenges Part III and Part II, which set out rules for social media intermediaries. BloombergQuint has examined copies of both petitions.
Rules go beyond the Parents Act
The government enacted the rules by exercising powers under Section 87 of the Information Technology Act. This provision enables the government to establish rules for intermediaries and put in place safeguards to block public access.
The petitioners’ first argument is that this section does not give the government any power to regulate digital news platforms as they are not intermediaries.
Second, instructions to block public access can be given to either a government agency or an intermediary. Digital news platforms do not fall into any of these categories. This section does not allow the government to dictate content to media portals.
And so the guidelines violate the law established by the Supreme Court in the Ajoy Kumar Banerjee case which stated that any rule or regulation beyond what the Parents Act provides will be Ultra Vires, it is said in the Delhi Supreme Court petition.
New rules recall Section 66A
In 2015, the Supreme Court struck down Section 66A of the IT Act. The section provided for the punishment of communicating information online that is grossly offensive or threatening. The section was knocked down by the court for vagueness.
The code of ethics in the new rules, the petitioners argue, is loosely worded and contradicts the Supreme Court ruling in Shreya Singhal – Section 66A.
This opens news journalism to complaints alleging that content in a news report or editorial is a “half-truth” or affects the social or moral life of the country. In addition, government oversight of news media content is nowhere within the scope of the law, according to the Delhi Supreme Court petition.
According to LiveLaw, the complaint and decision-making mechanism provides for the executive branch to act as both complainant and judge on key issues of free speech.
Social media brokers are forced to carry out private censorship
LiveLaw has also challenged Part II of the regulations in its petition, which, among other things, instructs social media intermediaries to remove content based on government and court orders. Messaging platforms can be instructed under this part to disclose the first originator of a message chain.
While LiveLaw is not a social media broker, it has challenged the guideline as a user of the internet and social media services like Twitter and WhatsApp.
The rules in Part II, according to the petition, have a direct deterrent effect on online language in that they oblige social media intermediaries to carry out private censorship in the face of severe penalties.
It is an attempt to overturn the Shreya Singhal judgment as the rules expand the scope of situations in which intermediaries can lose immunity granted to them under Section 79 of the Information Technology Act, LiveLaw said in the petition
Section 79 exempts intermediaries from liability in certain cases.
By obliging messaging intermediaries to change their infrastructure so that every message is “fingerprinted” on a large scale for every user so that every user can trace the first sender, the rules disproportionately violate Internet users’ fundamental right to privacy, adds the petition added.
The Supreme Courts agreed to hear the petitions and asked the central government for a response. The Kerala High Court has also passed orders to curb any coercive action against LiveLaw under IT rules 2021.