The Bombay High court today stayed two Rules of the newly enacted Information Technology Rules, 2021, which required the digital media companies to adhere to the code of ethics mandated by the Rules. The High Court stayed the Rules 9(1) and 9(3), but let the overall rule remain in force.
A division bench comprising Chief Justice Dipankar Dutta and Justice GS Kulkarni passed the interim order in the petitions filed by AGIJ Promotion Of Nineteenonea Media Pvt. Ltd, the publisher of legal news portal ‘The Leaflet’, and journalist Nikhil Wagle. Former AAP leader and The Leaflet’s contributing editor Ashish Khetan is also a co-portioner.
The bench found that the Rules prima facie violated the right to freedom of speech and expression granted by the constitution of India.
“In so far as Rule 9 is concerned, we have found it prima facie to be an intrusion of the petitioners rights under Article 19(1)(a). We have also held that it goes beyond the substantive law. Therefore we have stayed clauses 9(1) and 9(3). The rule is not stayed in its entirety,” the bench said, according to LiveLaw.
This means that although the court found that the Rule violates the Article 19(1)(a), the Rule 9(2) will remain in force, which means that publishers will be liable for consequential action for violating any other law in force.
The Rule 9 of the IT Rules is as follows:
9. Observance and adherence to the Code.—
(1) A publisher referred to in rule 8 shall observe and adhere to the Code of Ethics laid down in the Appendix annexed to these rules.
(2) Notwithstanding anything contained in these rules, a publisher referred to in rule 8 who contravenes any law for the time being in force, shall also be liable for consequential action as provided in such law which has so been contravened.
(3) For ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India, and for addressing the grievances made in relation to publishers under this Part, there shall be a three-tier structure as under—
(a) Level I – Self-regulation by the publishers;
(b) Level II – Self-regulation by the self-regulating bodies of the publishers;
(c) Level III – Oversight mechanism by the Central Government.
As Rules 9(1) and 9(3) has been stayed by the interim order, this means the digital media houses need not adhere to the Code of Ethics laid down in the IT Rules, and the establishment of the three-tier mechanism to address the grievances made against the Digital media houses will also be stayed for now.
The Leaflet had challenged the entire IT Rules, and sought interim stay of Rules 9(1), 14(5) and 16, but the court only stayed the provision of Code of Ethics for digital media houses. The court refused to stay Rules 7, 14 and 16. Rule 7 provides for punishment of social media intermediaries for violations of the Rules, Rule 14 provides for the formation of an Inter-Department Committee to hear complaints of violations of the Code of Ethics, and Rule 16 empowers the govt to block content in case of emergency.
The court said that the committee under Rule (14) is yet to be formed, so there is no urgency to stay it. For Rule (16), the court noted that it is similar to the Rule 9 of the 2009 Intermediary Rules, and as the petitioners had not challenged the earlier rule, no case was made for staying the Rule (16)
Yesterday, the Court had reserved its verdict, but had questioned how the ‘Norms of Journalistic Conduct’ under the Press Council of India Act were made enforceable as Code of Ethics under the new IT Rules. The Court had said that the Press Council Code of Ethics are just guidelines, and they can’t be made into rules violation of which will lead to action.
“Unless you have the liberty to thought, how can you express yourself? You are restricting the liberty of thought. But according to your Rules, it appears a minor infraction makes a person liable for action,” the Chief Justice had said to the government.