"Gives Sweeping Powers To Social Media Intermediaries To Remove Access To Information; Constant Surveillance": Lawyer Moves Delhi HC Challenging IT Rules

A petition has been moved in the Delhi High Court by an advocate challenging the vires of Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021.

Moved by Advocate Uday Bedi, the plea challenges Rule 3 and 4 of the IT Rules for the reason that it provides sweeping powers to the Social Media Intermediaries to voluntarily remove access to information on the basis of complaints received by it from private individuals as it deems fit. 

Stating that the aforesaid attempts to overrule the decision of the Supreme Court in Shreya Singhal judgment, the plea avers thus:

"While giving powers in excess of the powers given under the parent legislation, to voluntarily remove access to information that does not conform to Rule 3(1)(b), the Impugned Rules have allowed the SMIs to place the users of these platforms under constant surveillance which is a gross breach of the right to privacy which has been recognised by the Hon'ble Supreme Court of India in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1."

The plea also states that the impugned Rules are arbitrary and irrational as they do not prescribe for the procedure of appointment of a Grievance Officer or Chief Compliance Officer by such Social Media Intermediaries and Significant SMIswhile giving them the responsibility of disposing of complaints.

"It is most pertinent to note that the procedure for disposing of a complaint made under the Impugned Rules contains no provision for the author of the information to be heard prior to the information being shared by him over the SMI platform effectively, depriving him of his fundamental rights without even being heard. As such, this provision is extremely draconian and amounts to a gross violation of Article 14." The plea reads.

On the aspect of Rule 4(2), the plea states that the same requires the Significant Social Media Intermediary to find out the first originator of a message thereby breaching the right to privacy.

According to the petitioner, such an act is not possible "without decrypting all information that is stored, published, hosted or transmitted through such SSMI". 

Calling it a shockingly disproportionate and deeply pervasive encroachment over the right to privacy of social media users, the plea reads:

"Impugned Rules are anti-thetical to the fundamental principles of democracy which is part of the basic structure of the Constitution, where the State agencies are liable to be transparent and the citizens are allowed various rights and freedoms."

The plea seeks the following prayers:

- Issue a writ, order or direction in the nature of mandamus, striking down Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as unconstitutional and ultra vires the IT Act, 2000.

- Issue a writ, order or direction in the nature of mandamus, striking down Rule 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as unconstitutional and ultra vires the IT Act, 2000.

- Pass any other such order as this Hon'ble Court may deem fit and proper in the premises of this case.

In a similar development, the Supreme Court last week posted to July 16 the petition filed by the Central Government seeking to transfer to the top court petitions filed in High Courts of Delhi and Kerala challenging the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021.

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.

Last week, the Delhi High Court issued a notice to the Central Government on a plea moved by Press Trust Of India (PTI), challenging the constitutional validity of Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.