'Legacy Media Houses Wrongfully Classified As Digital Media' : DNPA Moves Madras High Court Against IT Rules

A Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy heard the submissions put forth by Senior Advocate PS Raman, and proceeded to tag the matter with the writ petition filed by acclaimed Carnatic vocalist TM Krishna. The Court further granted liberty to the Petitioners to approach the High Court in case any coercive action was taken against them under Rules 12, 14 and 16 of the 2021 IT Rules.

The DNPA contends that online news portals of "legacy media houses", which run newspapers and TV channels, do not come within the purview of IT Rules.

"That by way of the said IT Rules, the Respondent No. 1 has wrongfully and arbitrarily classified legacy media houses involved in television and print media….as part of 'digital media', submits the plea. It is contended that in light of this, Part III of the Rules imposes an "arbitrary, unjustified, undue and unfair oversight into the acts of the Petitioner No.1's member media houses, which opens the door to suppressing freedom of speech and the independence of news media in the country, which has been upheld by the Hon'ble Supreme Court in a catena of judgments", states the DNPA plea

The aforementioned submission stems from the alleged wrongful classification of the Petitioner under 'publisher of news and current affairs content' as per Rule 2(1)(t), which is distinct from 'newspaper' as per Rule 2(1)(n). It is stated that the Respondents have failed to appreciate that the Petitioners are legacy media houses.

"While 'newspaper' is not governed by the IT Rules 2021, 'publisher of news and current affairs content' is governed by Part III of the IT Rules 2021. This implies that some of the members of Petitioner No. 1 association which are primarily newspaper publishers would not be governed by the IT Rules 2021 if they only published newspapers. But by making available, inter alia, the same content on a digital platform, they ought to be governed by the IT Rules 2021. Therefore, the IT Rules 2021 have created a distinction that is vague and arbitrary, and which has no reasonable or rational nexus with the purported object which it purportedly seeks to achieve".

It has further been submitted that the Rules, such as Rule 3(2)(b), Rule 3(1)(d), Rule 4(2) and Rule 4(4) under Part II, seek to curb the freedom of speech and expression, as well as freedom of press by proscribing content on the basis of vague and subjective grounds, and also seek to "usher in an era of surveillance and fear, thereby resulting in self-censorship, which curtails the fundamental rights as envisaged under the Constitution of India".

"While at the first level, an individual will constantly remain in fear of facing consequences and thereby not engage in any content that may be close to the prohibited line (while being legal), at the second level, the intermediaries will also be trigger happy to pull down content while keeping a low threshold for any complaints received. Thus, this will lead to self-censorship without the Respondents having to exercise and explicit power to curb such freedom of speech".

Stating that adherence to Code of Ethics with the aid of a mechanism established under the three-tier system with powers to adjudicate upon whether or not a publisher has contravened any existing law, the plea submits that the mechanism is outside the scope of the Executive and can only be performed by the judiciary.

"That by way of providing the Respondents with the power to act on the basis of adherence to the Code of Ethics, the Rules intend to regulate content on undefined, vague and subjective standards as provided in the Code of Ethics, such as 'half-truths', 'good taste', 'decency', etc. which provide a broad scope for imminent misuse by the Respondents", avers the plea with a reference to the decision in Shreya Singhal wherein the Supreme Court had struck down Section 66A due to the usage of abstract terms.

The plea also contends that complying with the Rules would lead to a situation of over-regulation and unnecessary complication of a sector that is already well-regulated and compliant.

"There is and cannot be any valid justification or a valid formation of opinion on the part of the Respondents for such ex-facie arbitrary over-regulation. Such over-regulation is designed to create a logjam in the smooth functioning of the members of the Petitioner No.1, even if they were to function in accordance with fair and just laws".

The petition lastly contends that the Rules were passed with any consultation or discussion with the most relevant stakeholders, and having not been tabled in the Parliament, it does not have the benefit of independent scrutiny and inputs from the legislature.

The writ petition comes after a statement was issued by the Ministry of Information and Broadcasting in March 2021 remarking that the DNPA, which was one of the participants in the interaction between Union Minister Prakash Javadekar and representatives of digital news publishers, had welcomed the new Rules.

The members of the Association comprise of

ABP Network Private Limited,

Amar Ujala Limited,

DB Corp Limited,

Express Network Private Ltd.,

HT Digital Streams Limited,

IE Online Media Services Pvt. Ltd.,

Jagran Prakashan Limited,

Lokmat Media Private Limited,

NDTV Convergence Limited,

TV Today Network Limited,

The Malayala Manorama Co. (P) Ltd.,

Times Internet Limited, and

Ushodaya Enterprises Private Limited.

Senior Advocate PS Raman and Rahul Balalji argued for the petitioners.

On 10^th June, the Madras High Court had issued notice to the Union Government in the plea filed by TM Krishna against the IT Rules, thereby becoming the fourth High Court in the country to consider the validity of the new Rules after Delhi, Kerala and Karnataka.

In March, online news media 'The Wire' approached the Delhi High Court, followed by 'The Quint'. The Kerala High Court has granted interim protection from coercive action under Part III of the Rules to 'LiveLaw' in a petition filed by it against the Rules. Kannada news portal 'Pratidhwani' has approached the Karnataka High Court against the Rules. Recently, WhatsApp moved the Delhi High Court challenging the 'traceability clause' under Part II of the Rules. Later, Google also approached the Delhi High Court against the Rules.