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IT Rules face yet another hurdle after Madras High Court temporarily stays parts of the law

In its interim order, the court found substance in the petitioner’s arguments on press freedom and constitutional violations.

The Madras High Court on September 16 stayed a few more portions of the Information Technology (Intermediary Liability and Digital Media Ethics Code) Rules, 2021, a month after the Bombay High Court stayed significant parts of the Rules applicable to digital news organisations. The wording of the order constrains the government from taking action under Rule 3 and 7 that require social media platforms to take down content that violates norms (including a defamation clause that petitioners took specific issue with) and deprive intermediaries of protection from content posted by users in case of non-compliance.

The ruling came in the following two petitions: TM Krishna v. Union of India, and Digital News Publishers Association v. Union of India. You can read our coverage of TM Krishna’s petition here, coverage of the DNPA petition here, and our coverage of responses by the government here and here.

The IT Rules are under severe stress from the judiciary, with nineteen separate cases in courts around the country. The government has filed a transfer petition at the Supreme Court to get these cases heard in one place. Although the government told the Madras High Court that it expects the top court to hear the case in October, the Chief Justice of the Chennai-based court Sanjib Banerjee agreed with petitioners that interim protections were required. While the present judgment is unlikely to stop large social media companies who are already complying with the IT Rules, from continuing to do so, it may be a useful signal for how the courts may approach and eventually settle this issue.

Madras High Court’s reasoning

For understandable reasons, the petitioners are wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation. Prima facie, there is substance in the petitioners’ grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there.

Nothing more need be said on such aspect of the matter since the High Court of Judicature at Bombay, by an order dated August 14, 2021, has stayed the operation of sub-rules (1) and (3) of Rule 9 of the said Rules of 2021. […]

In the light of the Supreme Court judgment reported at (2015) 5 SCC 1 (Shreya Singhal v. Union of India), wherein Section 79(3)(b) of the Act has been read down and it has observed therein that unlawful acts beyond what is laid down in Article 19(2) of the Constitution “obviously cannot form any part of Section 79” of the [Information Technology] Act, there is substantial basis to the petitioners’ assertion that Article 19 (1) (a) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries. […]

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Accordingly, if there is any action taken in terms of Rule 3 of the said Rules read with Rule 7 thereof during the interregnum, it will abide by the result of the petitions and further orders herein. — Madras High Court order

What the IT Rules require of digital news

The IT Rules have the following requirements for digital news publishers:

  • Hire a grievance officer (Level I) to take complaints from the public;
  • Submit to oversight by a self-regulatory body (Level II) headed by a retired Supreme Court justice or other eminent personality;
  • Submit to further oversight by an inter-departmental committee of the government (Level III);
  • Submit details of their operations and Level II membership to the Ministry of Information & Broadcasting;
  • Take down content when ordered to do so, and issue an apology;
  • “observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act thereby providing a level playing field between the offline (Print, TV) and digital media,” per a government press release.

The government announced that two groupings of news organisations had registered as self-regulatory bodies under the IT Rules this month.

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I cover the digital content ecosystem and telecom for MediaNama.

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