HE Kerala High Court Wednesday directed the Central Government not to take any coercive action against the news portal LiveLaw for failing to comply with Part III of the newly enacted ‘Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021’.
A single-judge bench of Justice PV Asha also issued notice to the Ministry of Information and Broadcasting and Ministry of Electronics and Information Technology asking them to file their respective replies to the petition challenging the rules.
The interim order granting relief to LiveLaw came to be passed on a petition filed by Live Law Media Private Limited through its Director MA Rashid challenging the said rules as being ultra vires of the parent Act i.e. Information Technology Act, 2000.
The plea contended that the IT Act, 2000 did not regulate digital news media. It asserted that part III of the new rules imposed an unconstitutional three-tiered complaints-and- adjudication structure upon publishers, which made the executive both the complainant and the judge on vital free speech questions, involving blocking and take down of online material.
The plea argued that the rules imposed a disproportionately onerous set of administrative regulations upon digital news media, which would make it virtually impossible for small or medium-sized publishers, such as LiveLaw to function. Finally, Part III required publishers to comply with a code of ethics that was both vague and overbroad in its formulation and sought to proscribe constitutionally protected speech.
“The net effect of Part III, it is respectfully submitted, is to cause a chilling effect upon entities such as the petitioners, in the exercise of their constitutional rights under Articles 19(1)(a) of the Constitution, and to disproportionately infringe their rights under Articles 19(1)(g) and 21 of the Constitution”, the plea stated.
In its plea, LiveLaw also challenged the Part II of the said rules which pertains to due diligence by intermediaries and a grievance redressal mechanism. The portal contended that the rules obligated social media intermediaries to perform private censorship, at the cost of severe penalties. “These rules have a direct chilling effect on online speech, will cause the proliferation of self-censorship, and thus disproportionately violate Article 19(1)(a) of the Constitution,” the plea pointed out.
It asserted that the rules under challenge also sought to overrule the judgment of the Supreme Court in Shreya Singhal by expanding the scope of the situations in which intermediaries could be deprived of their “safe harbour” protections under Section 79 of the IT Act and subjected to legal prosecution, and by requiring intermediaries to respond to complaints by aggrieved users.
It said 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 impugned rules disproportionately violate the fundamental right of internet users to privacy, and undermine the holding of the Supreme Court in K.S. Puttaswamy v Union of India.