“Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021” as being violative of Articles 14 (right to equality), Article 19(a) (freedom of speech and expression), and 19(1)(g) (freedom to practice any profession, or to carry on any occupation, trade or business).HE Leaflet, a digital news web portal, has approached the Bombay High Court challenging the
Former journalist Ashish Khetan who is a contributing editor to The Leaflet is a co-petitioner.
In its petition, The Leaflet has contended that the new IT Rules 2021 are beyond the rulemaking power of the Central Government as the parent Act i.e. Information Technology Act, 2000 does not provide for anything which either seeks to regulate or enables the regulation of the ethics and digital content of online publishers.
“Apart from a single provision that enables the blocking of content available online on specified grounds, there is nothing in the IT Act that seeks to regulate content, in particular, the content of news publishers”, the plea says.
Besides, The Leaflet contends that the IT Rules 2021 impose unreasonable, excessive, and tenuous burdens on digital news publishers, which are designed to restrict and narrow the scope of reporting undertaken by such publishers and place unfeasible economic hardship on them, thereby imposing a disproportionate burden that directly violates the rights of the press that are protected under Article 19(1)(a) of the Constitution of India.
“The IT Rules 2021 contain provisions that enable the Government, and/or its representatives, to direct the modification of the content published by such news publishers, without any limitations or guidelines for the exercise of this power, thereby empowering the State to dictate and direct what is being published by the press, which amounts a gross violation of the freedom of the press”, the petition states.
The petition goes on to assert that the new IT rules are exceedingly vague, purport to bring digital publishers of news and current affairs content under the purview of the Press Council of India Act, 1978 and the Cable Television Networks (Regulation) Act, 1995 without amending the said legislations, and also enable exercise of judicial functions by non-judicial authorities, thereby violating the doctrine of separation of powers.
The IT Rules 2021, the plea contends, create a mechanism by which the content distribution networks operated by intermediary technology platforms, on which many digital news publishers rely on to reach their audiences, are subject to stringent takedown mechanisms and censorship obligations based on vague criteria, thereby directly affecting both the freedom of speech and freedom of trade of digital news publishers.
The Leaflet has argued that the IT Rules undermine the constitutionally-guaranteed freedom of the press for the following reasons-
The powers of the Executive to direct modifications and deletions of specific parts of the content or articles published by News and Current Affairs (NCA) Publishers amounts to the Executive directly controlling what the NCA Publishers put out;
• The obligations imposed on NCA Publishers under the mandatory grievance redressal mechanism amount to an undue and excessive burden that impedes the functions and freedoms of the press; and
• The provisions of the IT Rules 2021 will have a significant chilling effect on the freedom of the press.
• The plea has been drawn by advocate Varun Mathew and filed through advocate Meenaz Kakalia.
Senior journalist Nikhil Wagle has also approached the Bombay High Court by way of public interest litigation, challenging the rules. Seeking a stay, Wagle, in his petition, described the rules as “arbitrary, illegal” and against the “principle of net neutrality.”