Intermediary, social media guidelines challenged in courts by digital news portals

Two online media platforms. Two high courts. And a common fight.

That the recently notified rules for online news publishers have gone beyond the Information Technology law, they are vague and violate the principle of separation of powers.

The first petition has been filed in Delhi by Foundation For Independent Journalism (which runs news portal The Wire) and senior journalist Dhanya Rajendran, also editor in chief of The News Minute, while the second one is before Kerala High Court – filed by legal news website LiveLaw.

The petition in the Delhi High Court has only challenged part III of the rules that lay down a code of ethics and other guidelines for digital news media.

“The IT Rules, 2021… introduce a distinct category of entities, purely on the strength of their being publishers of news and current affairs content, to be subjected to an adjudicatory mechanism parallel to Courts of law, on a range of grounds which are not even offences under the parent act.”

LiveLaw’s petition challenges Part III as well as Part II which lays down rules for social media intermediaries. BloombergQuint has reviewed copies of both the petitions.

“Part III imposes a disproportionately onerous set of administrative regulations upon Digital News Media, which will make it virtually impossible for small or medium-sized publishers… to function.”

Rules go beyond the parent act
The government has issued the rules by drawing powers under section 87 of the Information Technology Act. This provision allows the government to frame rules for intermediaries and introduce safeguards for blocking of access by the public.

The petitioners’ first argument is that this section doesn’t give the government power to regulate digital news platforms as they are not intermediaries.

Secondly, the directions to block access to public can either be given to a government agency or an intermediary. Digital news platforms don’t fall in either of these categories. This section does not grant the government ‘’scope to dictate content to news media portals’’.

And so, the guidelines violate the law laid down by the Supreme Court in Ajoy Kumar Banerjee case, where it was held that any rule or regulation that goes beyond what the parent act contemplates will be ultra vires, the petition in the Delhi High Court says.

“Whether news agencies and commentators on current affairs should be subjected to a Code of Ethics is not the question. The question is whether 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)”

New rules are reminiscent of Section 66A
In 2015, the Supreme Court had struck down Section 66A of the IT Act. The section provided for punishment for online communication of any information that is grossly offensive or has menacing character. The section was struck down by the court for being vague.

The Code of Ethics in the new rules, the petitioners argue, is loosely worded and goes against the Supreme Court’s judgment in Shreya Singhal case – Section 66A case.

“The rules…seek to regulate digital news media by imposing a ‘Code of Ethics’, with all manner of stipulations as to ‘half-truths’, ‘good taste’, ‘decency’ etc., and vest the power of interference ultimately with the central government as the chief regulator, at the highest of three tiers.”

This opens up news journalism to complaints alleging some content in a news report or editorial is a ‘half-truth’ or adverse to the social or moral life of the country. Besides, government oversight of news media content lies nowhere within the scope of the act, the petition in the Delhi High Court argues.

LiveLaw says the complaints and adjudication mechanism envisions the executive both as the complainant and the judge on vital free speech questions.

“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….”

Social media intermediaries are forced to perform private censorship
LiveLaw in its petition has also challenged Part II of the regulations which among other things directs social media intermediaries to take down content under government and court orders. Messaging platforms, under this part, can be directed to disclose the first originator of a message chain.

While LiveLaw is not a social media intermediary, it has challenged the guideline as user of the internet and social media services such as Twitter and WhatsApp.

The rules under Part II, the petition says, have a direct chilling effect on online speech in as much that they obligate social media intermediaries to perform 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 where intermediaries can end up losing the immunity granted to them under Section 79 of the Information Technology Act, says LiveLaw’s petition.

Section 79 exempts intermediaries from liability in certain cases.

Finally, by obligating messaging intermediaries to alter their infrastructure to “fingerprint” each message on a mass scale for every user to trace the first originator, the rules disproportionately violate the fundamental right of internet users to privacy, adds the petition.

The high courts have each agreed to hear the petitions and sought a response from the central government. The Kerala High Court has also passed the direction restraining any coercive action against LiveLaw under the IT rules 2021. Bloomberg