The Ministry of Information & Broadcasting employed a wide range of arguments to defend the IT Rules in the Madras High Court in a 116-page affidavit; these range from references to reports on the digital media published by Reuters to remarks made by parliamentarians over two decades ago when the Information Technology Act was being debated. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, attempt to regulate streaming services, social media companies, and digital news publishers through subordinate legislation notified by the central government. The move has sparked at least 19 legal battles, mostly from digital news companies who argue that the law was insufficiently debated, improperly introduced, is unconstitutional, and may chill freedom of expression.
The government’s responses to these arguments in its affidavit, provided to MediaNama by a lawyer involved in one of the cases (TM Krishna v. Union of India and Digital News Publishers Association v. Union of India) is its most in-depth and fleshed out stand on the matter, at least until the Supreme Court starts hearing the issue. The government’s climb has so far been uphill: its own advisors warned that the Rules may go beyond the scope of the IT Act, and the Bombay High Court has already ordered a stay on the operation of some parts of the legislation.
You can read our coverage of TM Krishna’s petition here.
Summary
The affidavit starts with a summary of the IT Rules. You can read our summary of the law here (streaming services), here (digital news publishers), and here (social media platforms).
Legislative competence
- Publishers are users too: “Digital media has enabled wide dissemination of content beyond the original platform where it is published,” the affidavit said. It cited the Reuters Institute India Digital News Report 2019, where only 35% of respondents said they consumed news directly from news websites or apps, with most preferring social media. It quoted a similar report by the Reuters Institute published in 2021 to justify that “originators, such as publishers of news and current affairs content, are also users of intermediaries’ platforms (such as social media platforms) for dissemination of content published by them. […] In this regard, it is submitted that the Rules not only retain and recognize the difference between an intermediary and an originator, but also identify their inter-linkages on digital media.”
- Does IT Act allow content regulation? The government’s answer to this essentially goes back to school:
- First, it cites the preamble to the IT Act (which provides recognition for “transactions by means of […] electronic communication, […] which involve the use of alternatives to paper-based methods of communication and storage of information”) to argue that the ambit of the act is wide enough to welcome all types of interactions, news and streaming video online into the law’s dragnet; it said that fake news was a “misuse of electronic records” that affected people’s democratic rights.
- Second, it cited anti-obscenity and content takedown-related sections of the act to bolster this argument. It even cited the struck-down Section 66A judgment. (“Even though this Section was declared unconstitutional by the Hon’ble Supreme Court in Shreya Singhal vs Union of India, it is submitted that it does not take away the fact that the legislative intent behind the Section was related to regulation of media content over the internet,” the affidavit argued.)
- And third, it cited transcripts of legislative debates in the run-up to the IT Act’s passing. It quoted the late Pramod Mahajan, then the IT Minister, as saying, “Information Technology is the fourth generation of human communication,” and a passing mention by late minister Arun Jaitley to ‘e-Communication’ as support for its argument that the legislative intent included a wide range of communications online that were subject to the act’s purview.
- Additionally, it argued that courts had upheld the validity of parliamentary debates and the Statement of Objects and Reasons parts of acts to indicate the conformity of subordinate legislation to the parent act.
- Why IT Act provisions were not enough: In spite of a Delhi High Court judgment that said that the “Information Technology Act itself provide[s] for enough procedural safeguards for taking action in the event of any prohibited act being undertaken by the broadcasters or organizations [online],” the affidavit held its ground that the Rules were necessary. Citing that judgment, the affidavit said that the IT Act was administered by MEITY, in spite of an emerging split between “public” and “private” communications on the internet. This is why, the government said, it notified the amendment to the Allocation of Business Rules that gave the I&B Ministry supervisory authority over streaming services and digital news.
Need for the Rules, level playing field
- No norms were there for electronic media: The affidavit rued that guidelines and rules like the Norms of Journalistic Conduct of the Press Council of India and the Cable Television Networks (Regulation) Act, 1995 don’t apply to online media. “Similar harmony between various laws relating to a particular field, regulation of news and current affairs in this case, already exists in the case of multiple other subject matters [… and] it is also submitted that in the absence of guidelines for digital media, the existing set of guidelines, which have been time-tested with respect to print and electronic media, are apt to be applicable to news and current affairs content on digital media as well,” the government argued, citing a Bombay High Court ruling in Nilesh Navalakha v. Union of India, where the court observed that such norms need to apply for digital publishers too.
- Digital media reach wider: The government claimed that digital media’s reach was far wider than traditional media’s. “Content published from one part of the country can be disseminated and shared even in the remotest locations. Using the open internet, a digital media entity can publish news or analysis about happenings in any part of the world. While enabling interactions across the world, the transcontinental nature of digital news also makes it a powerful tool for information campaigns by foreigns tate and non-state actors to influence public opinion in any nation,” the government said. “The audience on digital media is far wider than the audience on traditional print media forms. While the written word can only be accessed by literate persons, internet can be accessed by literate and illiterate both.”
- Online, news is less reliable: That’s more or less the gist of the government’s following argument. “In case of print media or […] television, whatever is truly recorded can only be published or broadcasted (televised) viewed,” the affidavit says. “In the case of digital media, morphing of images, change of voices and many other technologically advance[d] methods to create serious potential social disorder can be applied,” the government said. It further argued that people had themselves become publishers of news, and that the lack of institutionalized approach left it without checks and balances. “A substantial intelligible differentia [exists] between the traditional media and digital media, and any contention that digital news publishers are similar to newspapers is flawed and superfluous,” the government argued. It argued that news online was characterised by rushed deadlines, substandard editing, and “competition for eyeballs and regulatory vacuum”.
- Exception for traditional publishers unconstitutional: The affidavit said that traditional publishers (represented by the DNPA, one of the two petitioners) have adopted the digital medium as well, and that any exception to them would be violative of the constitution and discriminatory to digital-only platforms. A lot of the content on these publishers’ websites doesn’t necessarily make it to their traditional mediums, the government added. For TV channels, the Programme Code under the Cable Television Networks (Regulation) Act, 1995 meant that the new rules were “no new or additional compliance,” the government argued. The affidavit added that the self-regulation systems for traditional media had been time-tested.
- Risk more on digital media: “While the Courts, in recent times, have pointed out in several cases that the impact of sensationalism of television news can be harmful for a democratic society, the risk is further accentuated on the digital media due to the factors such as permanence on the internet, and the potential of the content to be shared at a rapid pace,” the government argued, rehashing an argument it had brought up when it pushed back against the Supreme Court’s urging to do something about a Maharashtra TV anchor who was on the verge of airing a programme spreading a conspiracy theory that Muslims were systematically plotting their way into the civil services.
IT Rules not like Section 66A
The IT Rules are not like the struck-down Section 66A of its parent act, the government insisted:
The Hon’ble Supreme Court, in the Shreya Singhal judgement, held that Section 66A of the IT Act to be unconstitutional on the ground that it casts the net very vide — “all information” disseminated over the internet was included within its reach. In this regard, it is submitted that Part III of the IT Rules is limited in scope, not directly pertaining to the freedom of speech of common citizens, but in the form of a normative standard for commercial entities engaged in professional production and dissemination of content on digital media. The Rules are intended to ensure accountability of such entities towards the audience they serve. — MIB affidavit
Additionally, the affidavit argued, safeguards that were required by the Supreme Court in the Shreya Singhal case that struck down Section 66A and read down Section 69A, had been retained in the Rules.
Disinformation during pandemic
The government cited the 2020 COVID-19 migrant crisis in India as an example of media failure, citing “the panic caused among migrant workers during the COVID-19 pandemic as a result of factually incorrect reporting.” It added that “similar situations” had happened before with “communal clashes, terrorist attacks, etc.,” without providing examples.
It argued that the Indian Penal Code had sections that had restrictions on speech, such as Section 124A (sedition), 153A and 295A (promoting hate against specific groups), and 499 (Defamation). It also cited the Indecent Representation of Women (Prohibition) Act, 1986, which prohibits ads that “contain indecent representation of women,” and the same by way of books or pamphlets. It goes on to list a bevy of acts that regulate speech in India.
IT Rules are civil
The government also emphasised that the IT Rules were civil in nature:
Such a mechanism is bereft of any police powers. The entire grievance redressal process is civil in nature, and any decision regarding violation of the Code of Ethics does not lead to any criminal punishment. The decision on whether a particular content is violative of the Code of Ethics is a deliberative one involving the publisher, their representative self-regulating bodies, and the Government. The publisher has the opportunity to express and defend itself at all three levels of the grievance redressal mechanism. — MIB affidavit
Arguments on flood of complaints not tenable
Of the ~1,800 news publishers who have registered with the I&B Ministry, the government said, none have complained of being flooded with complaints. “None of these publishers, who have been able to establish communication with the Ministry, have expressed any difficulty arising out of the number of grievances which are being received/addressed by them,” the government said. “The argument of chilling effect on the freedom of the press or an adverse impact on the right to conduct business due to allegedly onerous obligations under the Rules is largely an emotive appeal, and is not legally tenable.”
Also read
- Madras High Court Issues Notice To Union Government Over Plea Moved By Media Outlets Challenging IT Rules 2021
- All you need to know about the petition challenging IT Rules 2021 in Madras High Court
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