An existential crisis for Digital Media: The IT Rules 2021 and a lack of protection

Kabir Singh

The Wire’s writ petition on 6^th March 2021 marked the beginning of the struggle for the rights of digital news portals against what has been claimed as the usher of an “an era of surveillance and fear”, undoubtedly leading to “self-censorship”, i.e. the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereon after IT Rules, 2021).

Since the first case, petitions for the quashing of the rules and for protection against them have been filed all over the nation by various parties.

Unfortunately, despite the multiple cases filed before the relevant Adjudicating Authority, it appears that the majority of them are stuck in a state of limbo.

Before delving deeper into the reasons of the same and pondering upon a viable solution, we must first have a basic and clear understanding of the dilemma of all said cases, which we shall achieve by examining some of the major ones, jurisdiction wise.

As the ground zero of the numerous battles against the new IT Rules, it is only right we begin with the jurisdiction of the High Court of Delhi. Also, note that the grounds for the filing of cases are almost the same in every case, thus they will not be explored too deeply after the Delhi High Court.

This is essential, to avoid repetition and to prevent distraction from the main points of the article, amongst which is highlighting the plight of the defenseless digital media.

Delhi High Court

The Foundation for Independent Journalism, owner of the digital news portal The Wire, filed a writ petition against the IT Rules in the Delhi High Court on 6^th March 2021 for declaring the Rules ultra vires the Information Technology Act, 2000 (hereon after IT Act, 2000).

The grounds were going beyond the scope of the parent act by regulating “digital news portals”, via the classification of “publishers of news and current affairs content” and for seeking said digital news under the “Code of Ethics and Procedure and Safeguards in Relation to Digital Media”, i.e. Part III of the Rules.

The mentioned part contains conditions such as “good taste”, “decency” etc. which are not only beyond the contemplation of the IT Act, 2000 but are also extremely vague.

Ten days later, Quint Digital Media Ltd, also filed a petition, also adding that Part III of the IT Rules is in violation of Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution of India. On March 19^th, the High Court of Delhi issued a notice to the Central Government, who then requested for more time to file a reply.

On 28^th March 2021, despite the Counsel’s pleas, the bench judged the matter of granting interim protection as not urgent and adjourned the matter till 4^th August. Meanwhile, both the petitioners were left to fend for themselves, against the rules.

A third case was again filed in the Delhi High Court by Pravda Media Foundation. The court on 28^th June 2021 declined to grant them interim relief. On 7^th July 2021, news portals The Wire, The Quint and AltNews were once again refused interim relief by the Delhi High Court.

On the same day, the bench granted Central Government sometime to reply to the applications filed for interim relief and listed the matter on 20^th August 2021. Coincidently, on 8^th July 2021, a new case, on the same grounds for interim protection was filed by The Press Trust of India. While the bench refused to grant them protection, a notice was issued, and the case was posted for further consideration on 20^th August 2021.

To conclude, the government has still not replied to the notice issued to it by the Delhi High Court and neither has interim relief been granted to any of the petitioners.

Madras High Court

While not a digital portal, it is necessary for us to include the petition filed by T.M. Krishna, as his petition is deeply related to such portals. On 10^th June 2021, he described the rules as "arbitrary, vague, disproportionate and unreasonable" restrictions on digital news media and social media intermediaries.

A notice was issued to the central government, and a counter-affidavit was expected to be filed within three weeks by them.

Notice was also issued on 23^rd June 2021, after the pending writ petition by T.M. Krishna was tagged with a new writ petition filed by the Digital News Publishers Association, which comprises 13 different media outlets and journalist Mukund Padmanabhan.

They identified themselves as “legacy media houses”, and differentiated themselves from the “digital media” mentioned in the rules and raised the same in the court amongst others grounds which have been repeated before.

The Court refused to give the latter an omnibus order as no adverse action had been taken against the outlets yet. However, in case the respondents rely upon Rules 12, 14 and 16 of the IT Rules, the petitioner will have the liberty to approach the court for interim relief. The respondent, i.e. the government has been given two weeks to file a counter-affidavit and the matter will be next heard in three weeks.

To sum it up, the petitioner has not been granted interim relief yet, but has been given a safe guarantee for the future and the government yet again, has failed to reply to any notice, similar to the High Court of Delhi.

Bombay High Court

The two challenges to the IT Rules 2021 in Bombay High Court were filed by Nikhil Mangesh Wagle, on 1^st July 2021 and a digital news portal, in the case of AGIJ Promotion Of Nineteenonea Media Pvt. Ltd. on 9^th July 2021.

The grounds were still the same. The digital news portal here wished for an urgent interim protection relief, which was however rejected, due to the central government moving the Supreme Court to transfer all the petitions challenging the constitutionality of the IT Rules 2021 across various High Courts, to the Supreme Court.

This was done to “avoid prolixity, multiplicity of proceedings and divergent judicial views” on the validity of the rules. Note that however, the Supreme Court later refused to pass any interim orders to stay the proceedings in various High Courts and listed the matter for hearing again on 16^th July 2021.

Thus, there was no interim protection granted due to the government’s transfer petition to the Supreme Court.

Calcutta High Court

The only challenge under this court was by petitioner Sayanti Sengupta on 30^th June 2021. The grounds were the same as the ones mentioned above. The Court issued a notice to the Centre, and a counter-affidavit from the same is expected before 19^th July 2021.

In this jurisdiction, the matter of interim protection has not been raised, as the petitioner is not a digital media network; however a notice has been issued and a counter-affidavit from the government is still expected.

High Court of Kerala

The High Court of Kerala is an inconsistency amongst the numerous consistencies of refusal of granting interim protection. There are two major challenges to the rules in Kerala. Both the cases are regarding digital news portals and surprisingly, in both the cases, interim protection against the same has been granted.

The first case was filed by LiveLaw News Media Pvt Ltd, on 10^th March 2021. The grounds of the petition were the same as the others, and the bench passed an order of restraining any coercive action against the petitioner under Part III of IT Rules.

Notice was also issued to the Central Government for this case. The second case’s judgment was based on the first judgment and accordingly interim protection was granted to the News Broadcasters Association (NBA) on 9^th July 2021.

Note that this judgment was given after the Centre’s appeal to move all the cases to the Supreme Court.

Kerala is the only High Court which has directly provided interim protection to the digital media networks and also issued a notice to the government. It is a welcome anomaly.

Analysis

Now that we have explored most of the cases and situational factors regarding the challenge of the IT Rules, 2021, it is prima facie clear that there are a few concerns giving sleepless nights to not only digital media, but to all those who are concerned about free speech.

It is noteworthy that out of the total eight prayers for interim protection, only two have been absolutely granted, both of which are from Kerala. The four from the High Court of Delhi are all being treated as “not urgent” enough. The High Court of Bombay has also refused to intervene and grant protection in the seventh. The Judiciary has long been known to be the champion of fundamental rights, and is undoubtedly digital media’s last hope. Without its protection, digital media is virtually defenseless.

The second worry is the lack of receptivity and indifference of the government towards the plight of digital media. The Center has been issued notices from the High Courts of four different jurisdictions, and has preferred not to reply to any of them. They have instead, as mentioned, filed a plea in the Supreme Court to club all the High Court cases, and transfer them to the Supreme Court.

The manner of implementation of these Rules without proper consultation and debate has left much to be desired and is, perhaps, the single biggest concern of all the stakeholders.

Against this backdrop, the Center’s Supreme Court hearing on 16^th July 2021 is going to be extremely significant in deciding the fate of these rules and the future of digital media.

Conclusion

It is indisputable that digital media is a fertile breeding ground for fake news. Hence, regulation of digital media, primarily to rein in fake news, is indeed a dire necessity. Even the Supreme Court issued a notice for a new law to curb fake news in February.

However, matters of such importance should be debated and carefully deliberated upon. The government may have good intentions but the Rules, in their present form, grant far too much power to the bureaucracy without putting a robust system of checks and balances for protection against bureaucratic tyranny.

Moreover, regulation of digital media, of fake news, is too serious a business to be left in the hands of a few bureaucrats through delegated legislation. This matter needs a comprehensive parliamentary debate and discussion, so that the Rules truly reflect the will of the people of India.

To put things in a relatable context, even Bar and Bench itself qualifies as a “publisher of news and current affairs content”, and thus even this article’s very existence is at the mercy of an “Authorized Officer” under Rules 14 and 15 of the Guidelines.

This is precisely what worries the digital media, and should worry you too.

(The author is first-year student at O.P. Jindal University)