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Brief: Arguments made by LiveLaw in plea challenging Information Technology Rules 2021

The Intermediaries Rules 2021 have not been issued following due process under the Information Technology Act 2000, claimed legal reporting portal LiveLaw, in its petition against the new Rules. They are “vague” and “suffer from excessive delegation of powers”, which will lead to the exercise of judicial functions by non-judicial authorities, the legal news platform said in its petition.

Earlier this week, LiveLaw filed a petition in the Kerala High Court, challenging the validity of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021. After hearing the petition, the court granted a stay against any coercive action by the government against LiveLaw by virtue of it being declared a “publisher” under the new Rules.

LiveLaw’s petition is the second legal challenge against the Rules, which were notified earlier this month. A few days ago, the Foundation for Independent Journalism (a trust which owns The Wire), The Wire’s founding editor MK Venu and TheNewsMinute’s editor-in-chief Dhanya Rajendran filed a plea in the Delhi High Court; the court is yet to begin hearings, but has issued notice to the central government, which is a respondent in the case.

Both the FIJ’s and LiveLaw’s petitions make similar arguments: they say that the Rules extend the scope of the parent act, the IT Act, 2000. They claim that the Rules define and regulate matters such as digital media, which was never a part of the parent act’s purpose or remit. Additionally, they argue that the prescribed three-tiered regulatory structure for digital media makes the executive (the Information and Broadcasting Ministry) the adjudicator of free speech questions. One key difference, however, is that LiveLaw’s petition also challenges due diligence requirements prescribed to intermediaries in Part II of the Rules, while FIJ’s petition does not.

For more context on how the IT Rules propose to regulate digital media and intermediaries, read our summaries on them  — Digital news; intermediaries; OTT streaming services.

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10 key arguments in LiveLaw’s petition

  1. Rules have ‘chilling effect’ on free speech: The Rules have an adverse impact on freedom of speech of users and the right to practice any trade, and the conditions they impose do not constitute “reasonably restrictions” on these rights, the petition argues.

    “In simple terms, the “chilling effect” refers to a phenomenon where a speech-regulating law is framed in such broad and wide terms, that its direct effect will be to encourage self- censorship, and deter persons from engaging even in lawful speech, for fear of legal consequences.” — LiveLaw petition

    The petition noted that the Supreme Court had recognised and articulated the concept of “chilling effect” in the Shreya Singhal v. Union of India 2015 judgement. Additionally, it noted a judgement of the United States’ Supreme Court from 1964 — which was later endorsed by the Supreme Court of India in 1994 — that the “chilling effect” refers to a situation where the the result of the law is to limit the public discourse to only statements which “steer far wider of the unlawful zone”.

    “The impugned Rules, specifically, chill speech by effectively compelling intermediaries to perform the role of adjudicatory bodies over legal and illegal speech, with severe penal consequences. The inevitable effect of this is that intermediaries will prefer to take down content that – in their judgment – even appears to stray close to the prohibited line (while being fully legal), rather than allow it to stay up and risk legal consequences.” — LiveLaw petition

    There is empirical research to suggest that in the pre-Shreya Singhal regime, intermediaries were over-complying with take down requests for censorship, regardless of the legitimacy of a request, the petition added.

  2. Rule making power is not infinite: It is a well-settled proposition of law that the exercise if the executive’s rule-making power — under Section 87(1) of the IT Act, in this case — is constrained by the condition that Rules must be consistent with the parent legislation. “It cannot, under the garb of making Rules, legislate on the field covered by the parent Act, and must restrict itself to the mode of implementation of the policy and purpose of the Act.”
  3. Adjudicatory mechanism gives executive too much power: Part III of the Rules — which deals with digital curated content (OTT streaming services) and digital news and current affairs — provide for blocking and oversight of content. However, neither Section 69A (dealing with blocking orders on intermediaries) nor Section 79 (dealing with safe harbour) have anything to do with regulating digital news media, the petition argued. The grievance redressal mechanism, through the governmental oversight body, amounts to excessive delegation, given that such a mechanism is not envisaged in the IT act.

    “This is both arbitrary and violates the rule of law and separation of powers, especially since there is no provision for the aggrieved publishers to appeal against the decision of the Inter-Departmental Committee.” — LiveLaw petition

    The Rules give the inter-departmental committee the power to decide complaints by individuals and by the I&B ministry as well. “However, the determination of whether any speech violates any law is a matter of adjudication by an independent judiciary, and cannot be delegated to the Executive”.

  4. IT Act doesn’t even talk about digital media: The IT Act does not contemplate regulation of digital news media and OTT platforms, and the Rules are ultra vires the Act, the petition said. There is nothing in Section 87 or any other part of the Act that allows the government to regulate digital news media and OTT platforms, it added.

    “The object of IT Act, 2000 as mentioned in its Statement of Object and Reasons, is to provide legal recognition of electronic records and digital signatures to facilitate E-Commerce. Therefore, it is clear that the Parliament did not intend the IT Act, 2000 to be used as a mechanism to regulate Digital News Media and  OTT Platforms; the impugned Rules are therefore contrary to Section 87(1) of the Act.” — LiveLaw petition

  5. Digital media brought under PCI and Cable TV acts without amending them: The petition notes that the Rules bring digital media organisations under the Press Council of India Act and the Cable Television Networks (Regulation) Act — by mandating codes prescribed to journalists and TV channels on publishers. But the respective Acts were never amended.

    “This amounts to the Central Government conferring upon itself powers which are not provided in the parent acts (whether IT Act, Press Council of India Act, or Cable TV Networks (Regulation) Act) through a delegated legislation.” — LiveLaw petition

    The petition also notes that the code of ethics mandated on OTT platforms contains vague terms, and needs them to take into consideration India’s “multi-racial and multi-religious context”. “This requirement is vague as there is a lack of clarity on what constitutes taking ‘into consideration’ India’s multi-racial and multi-religious context, and any statement could be offensive, annoying or inconvenient to certain groups. This vagueness in the Code of Ethics, which is enforced by the three-tier mechanism, has a chilling effect on free speech over the internet,” it says.

  6. No public consultation held with digital publishers: The petition notes that there was no public consultation prior to the Rules being notified; DIGIPUB News Foundation, an association of digital publishers of news and current affairs “representing the largest collection of digital news publishers in the country”, was not consulted, it says. Additionally, the petition notes that the previous consultation had happened over the draft Rules 2018, which did not talk of digital news media and OTT platforms.

    “To the best of the knowledge of the Petitioner, Part III of the Intermediaries Rules 2021 have been notified without any public consultation. A consultation before notification of any rule, ensures that concerns of the public at large are addressed prior to the notification of the rule and that no stakeholder is disproportionately affected.” — LiveLaw petition

  7. Safe harbour protections being deprived: Part II of the Rules, which deal with intermediaries and social media intermediaries, violates Article 19(1)(a) of the Constitution by seeking to deprive intermediaries of their safe-harbour protections provided to them under Section 79 of the IT Act, the petition argues.

    The petition says that the Rules provides for safe harbour protections for intermediaries only if they comply with due laid down in Part II. “However, the Rules go far beyond the scope of the said provision, creating onerous requirements for intermediaries that are ultra vires the IT Act 2000. “

  8. No clarity on what 5 million users means: The petition notes additional compliance mandated on significant social media intermediaries, which have more than 5 million registered users in the country. But there is no clarity regarding intermediaries where users do not register themselves with the intermediary, the petition notes. “The Rule also fails to clarify what must be done in circumstances where the number of users for an intermediary is fluctuating,” it says.
  9. Traceability requirement violates right to privacy: The mandate to require traceability by design — [in significant social media intermediaries, to be precise] — violates Article 21’s guarantee to privacy, the petition says. The identification of the “first originator” of a message may require changes to technical architecture of messaging platforms and breaking of encryption protocols.

    “[I]t would violate the data protection principles endorsed by the Hon’ble Supreme Court in KS Puttaswamy v. Union of India, 2017 and also the provisions of the proposed Personal Data Protection Bill, 2019, besides being beyond the scope of Section 69.” — LiveLaw petition

  10. Automated take down tools delegate censorship powers to private party: Significant social media intermediaries are required to deploy technology-based measures, including automated tools, to identify and take down content that is obscene, defamatory, libellous, relates to “any other matters pertaining to computer resources”, or shows partial nudity, or implicit child sexual abuse material. The petition notes that this was ostensibly done in compliance with a Supreme Court order from 2015 on videos depicting sexual violence.

    “However, the impugned Rules far exceeds the mandate of the said order as well as the parent legislation […],” it notes, “The impugned Rules […] also delegate the censorship powers of the State to a private party, which is in blatant contravention with the judgement of the Hon’ble Supreme Court in Shreya Singhal (supra).” — LiveLaw petition

    The petition also noted that automated tools that can identify and remove unlawful content from online platforms are still in nascent states of development, and are rife with inaccuracies and discriminatory censorship.
    LiveLaw has also challenged the need to have automated tools to solve the issue of child sexual abuse and rape imagery, as they could be deployed for other reasons in the future through “function creep”— such as the use of tools such as PhotoDNA to for criminal investigations unrelated to sexual offences, even though the tool was built specifically for identifying child sexual abuse material.

Live Law’s petition | Kerala High Court’s interim order

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