E-Paper
Bombay HC stays 2 clauses of IT Rules on code of ethics
A division bench of chief justice Dipankar Datta and justice Girish Kulkarni declared that Rule 9(1) and Rule 9(3) were prima face an intrusion on the freedom of speech and expression and also went beyond the scope of substantial law -- the Information Technology Act, 2000 -- under which the rules were made by the ministry of electronics and information technology.
The Bombay high court on Saturday stayed two clauses of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 that required publishers of online news portals, online news aggregators, etc to observe the code of ethics and provided a three-tier mechanism for ensuring compliance.
A division bench of chief justice Dipankar Datta and justice Girish Kulkarni declared that Rule 9(1) and Rule 9(3) were prima face an intrusion on the freedom of speech and expression and also went beyond the scope of substantial law -- the Information Technology Act, 2000 -- under which the rules were made by the ministry of electronics and information technology.
Rule 9(1) required the publishers to observe the code of ethics laid down under the rules, and Rule 9(3) provided for a three-tier mechanism -- self-regulation by the publishers, self-regulation by self-regulating bodies of the publishers and oversight mechanism by the central government -- for ensuring observance of the code and addressing grievances made in relation to the publishers.
The order came on public interest litigation filed by journalist Nikhil Wagle and a writ petition filed by digital news portal The Leaflet, challenging the validity of the rules contending that they were arbitrary and infringed the constitutional right to freedom of speech and expression of the petitioners.
Senior advocate Darius Khambata and advocate Abhay Nevagi argued on behalf of the petitioners that since the IT Act of 2009 had sufficient provisions to make publishers, news portals and intermediaries accountable for posting any objectionable content and liable for penal action, the new rules tried to supersede the Act and hence were not legally tenable.
The central government however defended the rules. Additional solicitor general Anil Singh, for the Centre, had submitted that the new rules were introduced to bring under control the spread of fake news and illegal content. He had further stated that the concerns of the petitioners regarding Rule 14 and 16 were unfounded as the ministry level committee was yet to be formed.
The court accepted the arguments advanced on behalf of the petitioners and stayed two clauses of Rule 9. It, however, did not pass orders with regard to Rule 14 and 16, which deal with the formation of a ministry-level committee and blocking of content in case of an emergency as the same was not yet formed. The court allowed the petitioners to approach the court as and when the same were constituted and asked the Centre to file a detailed reply to the petition within three weeks.
The court also did not stay the operation of Rule 7 which stipulates that when an intermediary fails to observe the new rules, the provisions of Section 79(1) of the IT Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force, including the provisions of the Act and the Indian Penal Code. Section 79(1) stipulates that “an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.”
This implies that an intermediary can be held liable for action under the new rules for processing, storing, hosting or transmitting any third party information, data or communication that is objectionable.
