Freedom of Speech and Expression vs. Content material Regulation: The Battle Continues
The Indian government introduced the Rules for Information Technology (Guidelines for Intermediaries and Code of Ethics for Digital Media) in February 2021 (“rules“) According to the Information Technology Act, 2000 (“IT law“) To regulate intermediaries, publishers and individual creators of news and current affairs content as well as curated online content.
Since the rules were in place, a number of petitions have been filed contesting them and are currently pending in the High Courts of Delhi, Kerala, Karnataka, etc. Two petitions were recently filed in the Bombay High Court challenging the rules on the grounds that they were ultra vires of the IT Act and the provisions of Articles 14, 19 (1) (a) and 19 (1) (g ) of the Constitution of India. A petition, Agij Promotion of Nineteenonea Media Private Limited and Ors. vs. Union of India and Anr.1 was submitted by ‘The Leaflet’, a digital news portal that has published articles, opinion pieces and reports on various social and political issues. Shri Nikhil Mangesh Wagle, a journalist since 1977, submitted the second petition, Nikhil Mangesh Wagle vs. Union of India2, to the Bombay High Court.
Rule 9 (1) of the Rules requires editors of news and breaking content, as well as curated online content with a physical presence in India, to adhere to the Code of Ethics provided in the Rules. This requirement also applies to foreign publishers who systematically make their content available in India. Systematic business activity means any structured or organized activity that involves an element of planning, method, continuity or consistency.
The Code of Ethics requires editors of curated online content to: (a) classify content into categories based on the type and nature of the content; (b) provide and display the appropriate rating for those categories based on the relevant content; (c) introduce access control mechanisms; (d) use reasonable efforts to improve the accessibility of curated online content for people with disabilities; and (e) ensure that the online curated content is not prohibited by law.
According to Rule 9 (3) of the Rules, publishers operating in the territory of India are required to establish a three-tier complaint resolution mechanism, i.e. self-regulation by the publishers, self-regulation by self-regulatory bodies, which can be established by the self-regulatory bodies of the publishers, and a supervisory mechanism by the government.
The main argument of the petitioners in the above petitions is that the provisions of the Rules of Procedure are ex-facie draconian and arbitrary as these provisions go beyond the limitations of Article 19 (2) of the Constitution. It has also been argued that the rules, in their applicability to the Internet, have a terrible chilling effect as they create an apparently unreasonable and arbitrary regime that violates the constitutional guarantee of citizens’ right to freedom of expression and expression.
The central government forwarded its response to the Bombay Supreme Court, stating that the code of ethics had been put in place to level the playing field between online and offline publishers and that a complaint process had been put in place to address the issue of fake news fight. They also argued that the scope of the IT law includes the recognition of electronic records that have media content and therefore Part III of the rules is not ultra vires of the IT law as claimed by the petitioners.
After hearing the arguments of both sides, the court found that the obligation of the publisher of news and current content as well as curated online content was taken from a legal system that is foreign to IT law, namely the Press Council Act 1978 (“PCA“) And the Cable TV Networks Regulation Act of 1995 (“CTVRA“). It has been found that no independent legislation dealing with such areas can be put in place under the rules and that if it is violated, no substantial action can be taken under the rules. The IT law did not aim to censor content on the internet except for the purposes of Section 69A (in the interests of the sovereignty and integrity of India, the defense of India, the security of the state or public order, etc.). Rule 9 of the Rules went beyond the provisions of Section 69A. The Bombay High Court also ruled that compliance with the Standards and Program Code became mandatory legal compliance, however, the sanctions under the Standards and Program Code were moral, not legal, and they simply established a moral code for the editors. Rule 9 appeared at first sight to violate the constitutional guarantee of freedom of speech and expression under Article 19 (1) (a) of the Constitution of India by attempting to subject publishers to action under the PCA / CTVRA, which is an independent mechanism for violating theirs Provisions.
The Bombay Supreme Court recognized the importance of freedom of expression and ruled that democracy can only flourish if the Indian people regulate their behavior according to the preamble promise they themselves made to the constitution. Freedom of thought is one of those promises. In exercising this freedom, expressions take shape. Should at least part of Rule 9 of the rules not be prohibited in the transitional phase either, this would have a detrimental effect. As it is, the constant fear of being pulled up for breaking the code of ethics is entirely possible now. People would be deprived of their freedom of thought and would feel suffocated from exercising their right to freedom of expression if they had to live with the code of ethics hanging over their heads as a sword in this day and age of content regulation on the Internet by Damocles. This regime would clearly run counter to recognized constitutional ethos and principles.
In light of the foregoing, the Bombay High Court ruled that the IT Act that underlies the Rules does not give central government the power to make a provision under Rule 9. Accordingly, Rule 9 (1) and Rule 9 (3) have been suspended by the Bombay High Court as interim relief and the Government of India has been given time to file its affidavits and rejoinder. The matter will be raised for a final hearing on September 27th. It will be interesting to see if the restraining order granted by the Bombay High Court will be enhanced or lifted after the final hearing.