IT Rules 2021: Madras High Court Restrains Coercive Action Against Digital Media Platforms Under IBDF

"In the meanwhile, the respondents are restrained from taking any coercive action against the petitioners without seeking permission of the Court", it was noted in the order.

The plea challenges vires of Rules 8-19 under Part-III [Code Of Ethics And Procedure And Safeguards In Relation To Digital Media] of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

However, the Division Bench expressed its reservations about the Bombay High Court order. It observed that rules cannot be nullified without examining the constitutional validity since there is a presumption of constitutionality when the vires of a legislation is challenged.

The senior counsel then drew the Court's attention to a recent order of the then CJ-led Bench, observing that the stay granted by the Bombay High Court ought to have a pan-India effect.

The matter will now be taken up on 25^th January, 2022.

Background

IBDF is the apex body of national and regional television channels and also has online / digital streaming platforms/OTT platforms as its members.

The plea states that IBDF has set up an independent self-regulatory body called Digital Media Content Regulatory Council (DMCRC) for addressing grievances for any content made available on the digital OTT platforms of its members.

"The Impugned Rules go beyond the restrictive ambit of the grounds mentioned in Article 19(2) and more particularly, the Statement of Objects & Reasons of the IT Act, 2000, which clearly demonstrates that the focus and subject of the entire enactment is on – "Electronic Commerce" ("e-commerce") and not for dealing with content of any programme", the petition states.

One of the primary contentions of the petitioner is that the three-tier complaint redressal mechanism to supervise digital OTT Platforms will infringe the rights guaranteed under Article 19(1)(a). Moreover, the Inter-Departmental Committee in Tier III Mechanism and the Oversight Committee constituted only of executive members is against the rule of separation of powers and violative of principles of natural justice, states the petitioners.

The petitioner submits that the central government does not have the power to regulate OTT Platforms, and no provision in the IT Act empowers the Government to regulate the dissemination of content on the internet. According to the grounds made out by the petitioner, Section87(2)(zg) of the parent Act applies only to intermediaries and does not empower rule-making powers with regards to OTT Platforms.

"Evidently, 'publishers of online curated content' are not an "intermediary" as envisaged under the IT Act or even the IT Rule", it is stated relying upon Rule 2(1)(i) of the 2021 Rules.

It also adds that Section 87(2)(z) read with Section 69A(2) of IT Act does not empower rule-making qua publishers of curated content providers. Section 87(2)(z) only empowers the Government to make rules laying down the procedure and safeguards to block public access in terms of Sec.69A(2) of the IT Act. Section 69A(2) empowers the Government to prescribe the procedure and safeguards subject to which 'such blocking for access' by the public may be carried out. Section 69A does not empower the Government to impose strictures or penalties in the form of directions, adds the petitioners.

"Use of the word "such" clearly means and implies that the procedure and safeguard which may be prescribed through rule-making relates back to the procedure and safeguard to be followed while ordering and directing the blocking for access under Sec.69A(1)", the petition adds.

Referring to Section 87(1) which grants rule making power to the central government to carry out provisions of the IT Act, the plea contends that Impugned Rules to regulate and impose restrictions on the exercise of free speech by publishers of online curated content does not fall within the ambit of the "general rule making power" within the four corners of the Act.

It also adds that Ministry of Electronics and Information Technology (MEITY) is not empowered to curate online or digital media in the aftermath of 2020 notification that entrusts such power to the Ministry of Information & Broadcasting.

"Having a self-regulatory body headed by a retired High Court Judge (under Rule 12), for redressal of complaints is enough to maintain the adequate balance between the freedom of speech and expression on one hand and the imposition of reasonable restrictions as provided under Article 19(2). The unreasonableness, disproportionality and manifest arbitrariness is evident from the fact that the Central Government has given this self-regulatory mechanism a statutory recognition on the one hand and in the same breadth, diluted the robustness and efficacy of the said self-regulatory system by having the Executive sit in appeal over the decisions of a retired Judge", the petitioners argue.

The petition also contends that there is deprivation of opportunity to be heard before blocking content under Rules 15, 16 and 17.

Hence, the petitioner has argued that the impugned Rules are unreasonable, disproportionate, manifestly arbitrary and violate Articles 19(2), 19(6) and 14 of the Constitution.

Case Title: Indian Broadcasting & Digital Foundation v. Ministry of Electronics and Information Technology & Ors

Case No: WP/25619/2021 (Gen. Misc.)