IT Rules 2021 Empower Ordinary Users Of Digital Platforms To Seek Redressal: Centre Tells Madras High Court

The Central government represented by the Ministry of Electronics and Information Technology (MEITY) and the Ministry of Information and Broadcasting (MIB) has filed two counter-affidavits before the Madras High Court in response to the batch of petitions challenging the constitutional validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021).

Petitions have been filed by acclaimed Carnatic vocalist and Ramon Magsaysay awardee TM Krishna, Digital News Publishers Association (DNPA) as well as journalist Mukund Padmanabhan, challenging the constitutionality of the IT Rules, and seeking a declaration of the same as "ultra vires, void and violative of Articles 14, Article 19(1)(a) and 19(1)(g) of the Constitution of India".

On Friday, Senior Advocate P.S Raman informed the Bench comprising Chief Justice Sanjib Banerjee and Justice P.D Audikesavalu that the Centre had filed an 'exhaustive' 120 page counter affidavit and accordingly sought the Court's leave to file a reply.

During earlier hearings, the Bench had expressed strong reservations against the dealt in filing the counter affidavit by the Union.

"Learned Additional Solicitor General should explain why appropriate measures should not be taken against those responsible for not filing the counter-affidavit on behalf of the Union despite the previous directions", the Bench had observed.

Justifying such a delay, the Union mentioned that the delay could be attributed to the fact that various petitions have been filed before different High Courts challenging the IT Rules 2021 and that these challenges were not 'streamlined or uniform'. While some of these petitions have challenged Part II of the IT Rules, relating to 'Intermediary due diligence', others have assailed Part III of the Rules relating to 'Digital Media and Code of Ethics', it was noted.

In the counter affidavit, the Union further submitted that all the cases filed before the High Courts 'commonly seek to declare the IT Rules 2021 ultra vires the Constitution and the IT Act. 2000'. In all, there are nineteen writ petitions at present, and each emanate out of a unique set of circumstances, it was further informed.

"Therefore, there was an overbearing need for the Union to present a consistent, uniform stand before all High Courts. The need to ensure such consistency led to the delay in finalising the affidavit. The delay was only on account of the need to ensure consistency of the pleadings of the Union and the delay was consequently not wilful nor was it wanton ... The delay is solely attributable to the need to ensure consistent defence to the multiplicity of the proceedings before various High Courts. It was not malicious or intentional", the counter affidavit further stated.

The IT Ministry (MeITY) has filed an affidavit as regards Part I & 2 of the Rules and Ministry of Information and Broadcasting has filed the affidavit as regards Part 3.

The Centre averred that the IT Rules, 2021 were enacted within the scope of the Information Technology Act (IT Act), 2000 and that they do not violate the fundamental rights of citizens.

"The Rules have been framed under unambiguous provision of law and it has been constituted after making adequate consultations and taking into account the necessary social and technological issues that necessitated regulation. Therefore, the rules do not suffer from any legal or constitutional infirmity", the counter affidavit further stated.

Averments in the counter

It was explained that the IT Rules 2021 had been introduced bona fide, for the benefit of the public and its intention is to ensure adequate regulation of digital and intermediary platforms. Thus, these rules were issued in public interest and to ensure the regulation of unlawful content, the counter stated.

Enumerating upon the rationale and justification for implementation of the Rules, the counter stated that the 'Rules substantially empower the ordinary users of digital platforms to seek redressal for their grievance and command accountability in the case of infringement of their rights'

It was further averred that the fundamental rights guaranteed under Article 19 of the Constitution (includes the freedom of speech and expression) are not absolute and are thus subject to restrictions under Article 19 (2) and (6) of the Constitution.

Other 'significant reasons' for enacting the IT Rules included: (i) significant expansion of online intermediary ecosystem; (ii) growth of online social media platforms and their influencing capabilities; (iii) international developments in social regulation; (iv) compelling need to have a framework to deal with messages that have become viral and resulted in riots, mob lynching, other heinous crimes including those concerning the dignity of women and sexual abuse of children; (iv) alignment of requirements of the law enforcement agencies and other appropriate government or their agencies; (v) need to refine and modernise the intermediary liability framework.

"It was clear that the regulations that existed prior did not afford adequate protection to women and children in particular', it was further stated.

Furthermore, it was submitted that the IT Rules 2021 had been formulated pursuant to adequate public consultation.

"The Ministry of Electronics and Information Technology (MeitY) prepared draft Rules and invited public comments on 24/12/2018. MeiY received 171 comments from individuals, civil society, industry association and organisations. 80 counter comments to these comments were also received. These comments were analysed in detail and an inter-ministerial meeting was also held and accordingly, these Rules have been finalized. The detailed document of the draft of the Intermediary Rules and the comments received has been made available in MeitY website", it was further explained.

IT Rules 2021 within the purview of Section 87, IT Act 2000 and an extension of 2011 Guidelines

The counter stated that the Rules were not unconstitutional as Section 87 of the IT Act, 2000 stipulated that guidelines can be issued for intermediaries and for procedures and safeguards to block public access. Thus there was no question of excessive delegation or delegation of essential legislative function, it was noted.

Furthermore, it was contended that the Rules are not new but an amendment to the already existing rules (Intermediary Guidelines of 2011) which have been upheld as constitutionally valid by the Supreme Court in Shreya Singhal v. UOI. Thus, the new Rules have been enacted to 'meet the requirements of time and new developments in the field of technology.'

Government has 'limited role' in seeking the removal of content

Referring to the IT Rules, 2021 the counter stated that under Rule 3 (1)(b) the government does not block any content but that the provision only applies between the intermediary and the user in so far that the intermediary shall inform the user not to publish any content which is specifically prohibited. The prohibited content is already part of the Intermediary Guidelines 2011, which was upheld by the Supreme Court in Shreya Singhal's case.

The duty has been cast on the intermediary to remind the users at least once every year that in case of non-compliance with the IT Rules, the intermediary has the right to terminate the usage and access rights of such users immediately. The right to terminate upon non-compliance has been bestowed upon the intermediary to curb the malpractices plaguing the country, it was further stated.

In the counter, the Union further argued that ' a mere reading of the rules' would indicate that the users have not been barred from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating or sharing any information. It is only that the user has to agree not to share information which is defamatory, obscene, pornographic, paedophilic, invasive of another's privacy, etc. This does not in any way create a chilling effect on the freedom of speech and expression, it was contended.

Furthermore, it was stated that the government only has a limited role in seeking the removal of content or seeking information only when a complaint is received by the government and not otherwise.

'The IT Rules, 2021 only governs the right to publish, download or remove content and it does not by itself make a user criminally liable for posting content. Criminal liability is a consequential action which commences when the penal provisions of an existing laws in force is violated by the user', the counter further added.

"Freedom of speech and expression" does not entitle anyone to publish fake messages to create public order situations

The Union stated in its counter affidavit that "freedom of speech and expression does not entitle or grant right to publish or circulate manipulative/fake messages to create 'public order' situations. In catena of judgments, the Supreme Court has opined that the freedom of expression and speech is not absolute and placed reasonable restrictions."

It was further submitted that the IT Rules do not impose any penalties or sanctions on users who post content in contravention of the Rules. The only consequence would be the removal of such content or the termination of access of such user by the intermediary, which may be challenged by the user under the grievance redressal mechanism specifically set out in the IT Rules or by way of judicial review.

Thus, it was argued that in the absence of additional civil or criminal liability, mere removal of content or blocking of access of users vis a vis information which is in any case unlawful will not tantamount to creating a chilling effect on speech and expression.

Referring to Rule 3 (2) which requires the intermediary to remove content within 24 hours on receipt of a complaint that there is content showing the complainant in full or partial nudity or which is in the nature of impersonation or including artificially morphed images, the counter stated,

"The content removal within 24 hours timeline does not result in over censorship and it has to be seen in light of the sensitive issue that the same is dealing with and the protection of victim's dignity, which is utmost priority. Rule 3(2)(b) have been issued for the benefit and protection of victims whose sensitive pictures have been leaked online..it can in no way be said to affect the right of freedom of speech and expression of an artist'

Only Significant Social Media Intermediaries can be authorised to identify first originators of information

Opining that there exists checks and balances in place to safeguard the privacy of users, the counter averred that 'only "Significant Social Media Intermediaries" (SSMI) are authorized to enable the identification of first originators of information or its computer resource and only by judicial order.'

The purpose behind Rule 4(2) is that by seeking the details of the first originator, the Central government is enlarging the present scope of the rules for effective investigation purposes only. It has also been noticed that fake messages or Child Sexual Abuse Material has potential to rupture the community fabric and has led to public order problems, it was further explained.

Referring to the Supreme Court judgment in K.S Puttaswamy v. Union of India, the Union argued,

"The Supreme Court has rightly observed that the right to privacy must be considered in relation to its function in society and be balanced against other fundamental rights which includes the need of the competent authorities for prevention, investigation, prosecution of criminal offences including safeguards against threat to public security.'

Recently, Centre filed a similar affidavit before the Delhi High Court as well defending IT Rules 2021.

The Centre has filed a transfer petition in the Supreme Court seeking transfer of all cases on IT Rules form High Court to Supreme Court.

Click here to read the affidavit of MIB on Part III of IT Rules

Click here to read the affidavit of MeITY on Part I & II of IT Rules