The Central government on Wednesday defended the legality of the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in its counter affidavit filed in reply to a challenge to the constitutional validity of the new IT Rules.

The Delhi High Court is dealing with various petitions on several digital news platforms, including The Quint, The Wire and others, challenging the newly enforced Information Technology Rules, 2021. The newly notified rules regulate the functioning of online media portals and publishers, over-the-top (OTT platforms), and social media intermediaries. The plea has been moved by the Foundation of Independent Journalism, an organisation that publishes “The Wire,” a digital news website.

The pleas sought striking down of specific part of the IT Rules on the ground that it violates Article 19(1)(a) and 19(1)(g) of the Constitution, creating a chilling effect on media freedom, Article 14 of the Constitution by creating an unreasonable classification and by setting up a parallel adjudicatory mechanism to be overseen by the officials of the executive and is ultra vires the IT Act.

The affidavit was jointly filed by the Ministry of Information & Broadcasting, and the Ministry of Electronics & Information Technology.

‘To prevent misuse of freedom of press’

It stated that the regulations seek to prevent misuse of freedom of press by empowering the audience and that the grievance redressal mechanism was in consonance with the spirit of the public’s right to know. It also justified the creation of a governmental oversight mechanism, including its power for deletion, modification and blocking of content of publishers.

It was submitted by the Centre that consequences of fake and misleading audio-visual news on digital media have, in the recent past, led to deaths of innocent people on false pretexts such as in case of rumours of child-lifters and urged it to dismiss pleas challenging recently amended IT rules (The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021).

What does the IT Act say?

The IT Act identifies the originator of an electronic message as one being different from an intermediary. The key difference between the originators and intermediaries lies in the control exerted by these entities over the content which is published on digital media. While intermediaries only deal with third party content, originators directly control the content which is being published. In this regard, it is submitted that while the Act, under Section 79, provides safe harbour for the content being published by an intermediary, originators are not entitled to any safe harbour prOVISIOns and are mandated to take fun responsibility for the content published by them.

Furthermore, the term ‘originator’ is a broad term that includes persons generating and transmitting electronic messages, both in the nature of public and private communication irrespective of the nature and purpose of the message. In this regard, it is submitted that publishers of news and current affairs content, as being different from intermediaries, are originators of electronic messages of the nature of news and current affairs content, and therefore, these entities are well within the scope of the Act.

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That within the broader scope of communication, one can make a distinction between public and private communication. While communications such as sending and receipt of email, and conclusion of contracts over the internet are private communications between entities, publishing content on social media platforms, digital news portals and OTT platforms is essentially a public communication. The  Centre  submitted that the Information Technology Act recognizes both private and public communication. In respect of intermediaries, the users are the originators of content. Rule 3(2) ofthe Information Technology (Intermediary Guidelines) Rules, 2011  provided for intermediaries to inform the users not to host, display or upload certain forms of information.

With regard to an institutional mechanism for publishers of news and current affairs content under the IT Act, it is submitted that despite being within the scope of the Act, lack of institutional mechanism for these entities was due to the ambiguity regarding the Ministry under which such a mechanism was to be administered. This ambiguity was resolved by the Central Government notification dated 09.11.2020, through which the subject “News and current affairs content on online platforms” and “Films and Audio-Visual programmes made available by online content providers” was transferred to the Ministry of Information & Broadcasting. In this regard, it is submitted that Part III of the Rules dealing with public communication by publishers of news and current affairs content, would be administered by the Ministry of Information & Broadcasting utilizing the authority delegated by MeitY under the IT Act.

In respect to the application of the Norms of Journalistic Conduct or the Press Council of India under the Press Council Act, 1978, affidavit  submitted that The Press Council of India has the mandate to look into various aspects related to content appearing in Print Media. The Press Council has prepared the Norms for Journalistic Conduct for this purpose. Additionally, the Council has the powers to conduct enquiries on the basis of complaints and take suitable action including warning, admonition, censor, etc.

Competition for eye-balls, regulatory vacuum has led to fake news in digital media

The Union government argued that an economic environment marked by competition for eye-balls and regulatory vacuum with respect to the content on digital media has led to spread of fake news and other potentially harmful content without any accountability of digital news publishers. There is a difference in the content published/broadcast by traditional media entities on newspaper/television and the content published by their digital media arms. Digital medium is format agnostic. This feature has been used by digital news entities of both newspapers as well as television news channels. Digital platforms of many newspapers conduct panel discussions in the audio-visual fonnat. These are not possible to be published in the newspaper but are made available 011 digital media in the form of videos or podcasts.

With regard to the Oversight Mechanism and the role of the Central Government, it is pointed out that even at present, in respect of traditional TV channels, there is an oversight mechanism in the Government by way of an Inter-Ministerial Committee (IMC) which looks at certain grievances relating to the violation of the Programme Code, a mechanism which is in existence since 2005.

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That the laws of the land apply to all individuals and legal entities, including the publishers on digital media. In this regard, the Code of Ethics does not apply any new restrictions but only reiterates that the content which has already been prohibited under any law for the time being in force not to be published on digital media.

In this regard, the Centre submitted  that many of the  laws have been upheld by various Courts of law, including the Supreme Court, and a mere repetition of the same by the Code of Ethics is not an infringement into the right to freedom of speech and expression of the publishers on digital media. “That the provisions similar to the above mentioned laws also exist in the Norms of Journalistic Conduct, and the Programme Code which constitute the Code of Ethics under the IT Rules. These provisions are intended to safeguard the rights of the persons who are reported about in news; rights of the audience which reads, views or shares the content; while simultaneously being sensitive to the wider society, with a special emphasis on the concerns related to the vulnerable sections,” the affidavit said.

“Over 1,800 digital media publishers, over 97% of them being publishers of news and current affairs content, have appointed a Grievance Redressal Officer (Level-I), and furnished their information to the Ministry. 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/redressed by them. Additionally, the publishers have the liberty to appoint any of their existing employees as the Grievance Redressed Officer for the purpose of the Rules. Moreover, in relation to Level II of the grievance redressal mechanism, many publishers have also expressed their willingness to constitute their self-regulatory bodies,” the affidavit read.

Delhi High Court issues notice to the Centre and Asthana in the challenge to the appointment of Delhi Police Commissioner Rakesh Asthana, seeking response … Advocate Prashant Bhushan again said, the petition is a copy of his application … Will go to the Supreme Court

The Central Government in the Delhi High Court in defense of the new IT Act said… IT rules are valid… Attempts to prevent misuse of press freedom… Doesn’t prohibit Press

Former Congress councilor Ishrat Jahan, accused in Delhi riots, sought bail… said, justice cannot be denied on technical issues

Allahabad High Court refuses to stay the release of the film ‘Chehre’… the allegation of copyright infringement against the release of ‘Chehre’

WhatsApp imposed a voluntary ban on the privacy policy… said, the privacy policy will not be implemented till the implementation of the data protection bill…. Delhi High Court refuses to interfere in the CCI investigation against the policy

The Supreme Court accepted the application of the Centre on the matter of hearing the petitions filed against the IT Act, issued a notice

News Broadcasters Association got Kerala High Court’s support on new IT Act…. High Court said – Even if the association does not implement the law, there should be no punitive action

Delhi High Court said…the right time to implement the Uniform Civil Code in the country…Today’s India has risen above religion, caste, community…. Problems are also coming in marriage and divorce.

WhatsApp has informed the Delhi High Court on Friday that it has decided not to enforce the new privacy policy till the Personal Data Protection Bill, 2019 comes into effect.

The Delhi High Court has deferred its hearing on the appeal filed by WhatsApp and its parent company Facebook against the order passed by the Single Judge refusing to interfere with the Competition Commission of India’s probe for investigation against the platform’s new privacy policy.

“The difficulty appears to be not only you are collecting all this data but you are also giving it to somebody else without the permission of the person” queried the division bench of Chief Justice D.N. Patel and Justice Jyoti Singh.

The senior counsel Harish Salve, appearing for the WhatsApp, informed that the Court that it is not intending to enforce the new privacy policy till the Private Data Protection Bill comes into existence.

Salve submitted that the enquiry by the CCI is into the implication of the policy. But, when the Government of India, being the administrator, is seized of the issue and has instructed WhatsApp to take off the policy till the law is made, CCI cannot jump the gun and direct enquiry.

He raised question on the the probe ordered by CCI on the ground that if Parliament makes a law and allows it to share data, the CCI cannot then question as to why they are sharing the said data.

Senior Counsel Mukul Rohatgi, appearing for Facebook, also raised objection on the suo motu jurisdiction initiated by the CCI. He submitted that when the aspect of the privacy policy is being examined by both the Supreme Court as well as the Delhi High Court in matters pending before the said Courts.

“Even assuming there is suo-moto jurisdiction, can it be exercised when superior Constitutional Courts are examining all aspects of the policy?” said Rohatgi.

Thereafter, Salve urged the bench to direct the CCI to extend time for furnishing the requisite information as asked by the CCI from July 16 to the end  of the month.

Per contra, Additional Solicitor General Aman Lekhi, appearing for the CCI, submitted that arguments meted out by the senior counsels are contrary to the mandate of the Competition Act. He contended that any submission for extension of time for furnishing the information would mean that the enquiry be stalled. He further submitted even after a report is filed on the basis of the information furnished by the messaging platforms, there will be an enquiry by the Competition Commission.

“So, it is not as if, by filing a reply, anything determinative will actually happen which may affect the rights of any of the parties…” he said stating the reason why the vacation bench did not grant stay on the probe. Furthermore, he contended that there is no obligation upon them under the Competition Act to disclose information as comprehensive as is sought.

Mr. Lekhi stated thus “They are making a statement that they are not going to insist upon compliance, but it is not the statement of Whatsapp that they are in way giving up the policy. The CCI is dealing with the Competition Law implication on the policy. What WhatsApp is saying is only in so far as its decision to implement the policy is concerned, it’s been deferred, but the policy stands. As long as the policy stands, the Competition Law implications persist; and as long as the Competition Law implications persist, the jurisdiction exist.”

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The matter will now be heard on July 30, 2021, as the response filed by the CCI was not on record.

The vacation bench of Justice Anup J. Bhambhani and Justice Jasmeet Singh on June 21, 2021, refused to stay the notice dated June 4, 2021, issued by the CCI to WhatsApp seeking information on the platform’s new privacy policy.

Earlier, the division bench of Chief Justice DN Patel and Justice Jasmeet Singh issued notice to the CCI seeking its response on the appeals preferred by WhatsApp and Facebook against the single judge order of dismissal of their pleas challenging the CCI’s order for an investigation into the platform’s new privacy policy.

The Central Government has moved the Supreme Court for transfer of all cases challenging IT Rules 2021, from all High Courts to Supreme Court. The petition filed by Centre has been tentatively listed for a hearing on July 9. 

The transfer petition has been filed by the Centre in the wake of pending matters before various High Courts across the Country challenging its new IT Rules. 

In one of the petitions listed before the Delhi High Court by one Amit Acharya who has sought action against Twitter for not complying with the New IT Rules the Delhi HC has expressed its displeasure and asked Twitter to comply and appoint a Grievance Officer by July 8, i.e. next hearing of the matter. 

In the particular matter, the Ministry of Electronics and Information Technology (MeitY) has filed its reply alleging that Twitter has not complied with the Centre’s IT Rules.

The Centre submitted that the Government of India notified the IT Rules, 2021 on 25.02.2021. On 26.02.2021 the threshold limit of the number of registered users for an intermediary to qualify as an SSMI was notified. That a sufficient period of three months from this date, i.e. from 26.02.2021 was granted to all SSMIs to comply with the additional due diligence set out under Rule 4 of the IT Rules, 2021. Thus, from 26.05.2021 onwards, all SSMIs are mandatorily required to comply with the obligations set out in Rule 4 of the IT Rules, 2021.

Another matter which are pending before the Delhi High Court; 

The Foundation for Independent Journalism, The Wire, Quint Digital Media Ltd and Pravda Media Foundation, parent company of Alt News, had filed a petition before the Delhi High Court challenging the new IT Rules. The Delhi High Court had issued notice to the Centre. While hearing the matter on June 28, the petitioner had sought a stay on the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, on the grounds that a fresh notice had been issued to them to comply with the rules or else coercive action would be taken. But the High Court had refused to stay the rules and list the matter before the Roster bench for hearing in July 7, 2021. 

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Matters pending before the Madras High Court; 

Recently on June 23, the Madras High Court had issued notice on a plea filed by by the Digital News Publishers Association challenging the Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021. But the Court had refused to stay the operation of rules and granted liberty for the association to approach the court if any coercive and arm-twisting action is taken under the rules, particularly under provisions 12, 14 & 16 of the rules. Carnatic musician and columnist T.M. Krishna had also moved the Madras High Court against the IT Rules.

Similar petitions have also been filed before the Bombay High Court and Kerala High Court.

The Karnataka High Court has given relief to Twitter India managing director Manish Maheshwari by restraining the Uttar Pradesh police from taking any coercive action against him. The relief comes after Maheshwari had approached the HC for transit anticipatory bail after he got a notice from Ghaziabad Police to appear at the Loni police station in connection with the tweets over the assault of an elderly Muslim man in Ghaziabad.

Justice G. Narender said the police can examine Maheshwari if they so desire by virtual mode. The judge said the petitioner is fearing arrest. Maheshwari’s counsel Senior Advocate Nagesh said Maheshwari is an employee who looks after revenue generation via advertisements and is not a director of the company to be held liable for content on the platform.

An FIR had been filed last week by Ghaziabad Police against Twitter India, several journalists, and Congress leaders after the man Abdul Samad alleged he was thrashed by some youth and forced to chant “Jai Sri Ram” and “Vande Mataram”. Journalists Rana Ayyub and Saba Naqvi, and Congress leaders Salman Nizami, Shama Mohamed and Maskoor Usmani were also charged for posting and sharing the alleged “misleading” tweets, and the video, and “provoking communal sentiments”.

In the Tweet, Samad claimed he was forced to chant “Jai Shri Ram” and “Vande Mataram” though police ruled out the communal angle, saying the accused — both Hindus and Muslims — attacked the man after a dispute over amulets. Soon after the video went viral, Police booked Twitter and some individuals for misinformation.

Social media companies have to comply with the new IT Rules that came into effect on May 26 this year, to get protection and the absence of the same exposes them to be held liable for fake news, harassment and defamation on their platform. The Uttar Pradesh government has become the first to book Twitter in a criminal offence after the social media company failed to comply with the new rules.

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Manish Maheshwari was expected to reach the police station at Loni, which is on the Delhi-Uttar Pradesh border for questioning related in connection with the controversial tweets. “You couldn’t remove certain tweets even after you were asked to by authorities. You understand Indian laws and are bound to follow them,” the notice summoning Maheshwari had said.

Justice Rekha Palli of the Delhi High Court on Monday observed the information technology (IT) rules of the Centre, if not stayed, will have to be obeyed by Twitter India and other such social media platforms.

The judge allowed three weeks for replies in an appeal filed by Advocate Amit Acharya, seeking action against Twitter and Twitter India for its failure to comply with the Centre’s IT guidelines within the legally tenable framework. This was after the respondents clarified that it had, on May 28, appointed a resident grievance officer.

The judge said: “I am inclined to issue notice. If the rules have not been stayed, then they have to comply with the rules.”

Advocate Sajan Poovayya for Twitter said: “The rules were not complied when the petition was filed but now we have complied. The resident grievance officer was appointed on May 28 and I’ll file an affidavit with regards to the same.”

There was a small interjection by Advocate Ripudaman Bhardwaj, for the petitioner, saying: “They have submitted that the resident grievance officer has been appointed, but we don’t know if they’ve appointed it as per law.”

The judge said: “Don’t interject just for the need of interjecting. That’s why I am issuing notice and not disposing of the plea.” The matter will be heard on July 6.

The plea was against the non-compliance of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 by Twitter and seeking an appropriate instruction against Union of India and Twitter to perform its statutory and executive duty under IT rules.

According to Rule 4(c) of the IT Rule, every Significant Social Media Intermediary has to appoint a Resident Grievance Officer, who shall, subject to clause (b), be responsible for the functions referred to in sub-rule (2) of rule 3 While sub-rule (2) of rule 3 prescribes Grievance redressal mechanism of intermediary in the following words:

(a)The intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it, and the Grievance Officer shall –

(i) acknowledge the complaint within twenty four hours and dispose of such complaint within a period of fifteen days from the date of its receipt;

(ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.

(b) The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation in an electronic form, including artificially morphed images of such individual, take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it:

(a) The intermediary shall implement a mechanism for the receipt of complaints under clause (b) of this sub-rule which may enable the individual or person to provide details, as may be necessary, in relation to such content or communication link.

Rule 4 of the IT Rules, 2021 put Additional due diligence on significant social media intermediary (who have more than 50 lakh users or subscribers in India). It says that:

(1) In addition to the due diligence observed under rule 3, a significant social media intermediary shall, within three months from the date of notification of the threshold under clause (v) of sub-rule (1) of rule 2, observe the following additional due diligence while discharging its duties, namely:—(c) appoint a Resident Grievance Officer, who shall, subject to clause.

(b), be responsible for the functions referred to in sub-rule (2) of rule 3.
Explanation.— For the purpose of this clause “Residential Grievance officer” means the employee of a significant social media intermediary , who is resident in India;Additionally sub-rule (6) of rule 4 states that:

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(6) The significant social media intermediary shall implement an appropriate mechanism for the receipt of complaints under sub-rule (2) of rule 3 and grievances in relation to the violation of provisions under this rule, which shall enable the complainant to track the status of such complaint or grievance by providing a unique ticket number for every complaint or grievance received by such intermediary:

Provided that such intermediary shall, to the extent reasonable, provide such complainant with reasons for any action taken or not taken by such intermediary in pursuance of the complaint or grievance received by it.

Source: ILNS

In the midst of its face-off with the Indian government, social media messaging giant WhatsApp has moved the Delhi High Court seeking an order to declare the Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules”) as being violative of the following rights guaranteed by the Constitution:

• Articles 14 (right to equality)
• Article 19(1)(a) (freedom of speech and expression)
• Article 19(1)(g) (freedom to practise any profession, or to carry on any occupation, trade or business)
• Article 21 (right to life and liberty which also includes right to privacy)

WhatsApp, which has over 2.5 billion users worldwide, has argued that criminal liability may not be imposed for non-compliance with Rule 4(2) and any attempt to impose criminal liability for non-compliance is unconstitutional, ultra vires the IT Act, and illegal. Rule 4(2) requires intermediaries like WhatsApp to enable “the identification of the first originator of the Information”, which means this rule forces WhatsApp to disclose the identity of the person who was the first source of the message upon the government or courts order. Hence, WhatsApp will have to keep a track of every message sent on its platform for that purpose.

WhatsApp has contended that this rule infringes upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securely. WhatsApp states that this rule is against their policy of end-to-end encryption which ensures that every communication sent on WhatsApp, both messages and calls, can only be decrypted by the recipient. No one else, not even personnel at WhatsApp, can read or listen to encrypted communications or determine their contents.

WhatsApp has cited some examples in this regard that end-to-end encryption enables government officials, law enforcement agencies, journalists, members of ethnic or religious groups, scholars, teachers, students and the like to exercise their right to freedom of speech and expression without fear of retaliation. WhatsApp also allows doctors and patients to discuss confidential health information with total privacy, enables clients to confide in their lawyers with the assurance that their communication is protected, and allows financial and government institutions to trust that they can communicate securely without anyone listening to their conversations. However, the requirement that intermediaries, like the petitioner, enable the identification of the first originator of information in India on their platforms puts end-to-end encryption and its benefits at risk.

WhatsApp has taken various grounds in its plea under the following heads:

• Rule 4(2) should be struck down as unconstitutional and ultra vires the IT Act. Rule 4(2) should be struck down on the grounds that it
• violates the fundamental right to privacy guaranteed under Article 21 of the Constitution;
• (ii) it violates the fundamental right to freedom of speech and expression guaranteed under Article 19 of the Constitution;
• (iii) it is ultra vires the parent statutory provisions, Sections 69A and 79 of the IT Act, as well as the 32 intent of the IT Act itself;
• (iv) it is “manifestly arbitrary” in violation of Article 14 of the Constitution; and
• (iv) it violates the principle of data minimisation
• Rule 4(2) violates the fundamental right to privacy. In the landmark decision of K.S. Puttaswamy vs Union of India, (2017) 10 SCC 1 (“Puttaswamy I”), the Supreme Court held that the right to privacy is a fundamental right guaranteed under Article 21 of the Constitution. In reaching its decision, the Court identified nine types of privacy, including:

(a) “communicational privacy, which is reflected in enabling an individual to restrict access to communications or control the use of information which is communicated to third parties”;

(b) “informational privacy, which reflects an interest in preventing information about the self from being disseminated and controlling the extent of access to information”; and

(c) “associational privacy which is reflected in the ability of the individual to choose who she wishes to interact with”.

• More recently, the Supreme Court affirmed that the right to privacy includes the right to anonymity. (See 33 Central Public Information Officer, Supreme Court vs Subhash Chandra Agrawal—“Privacy and confidentiality encompass a bundle of rights, including the right to protect identity and anonymity.”)
• Impugned Rule 4(2) does not satisfy the valid law requirement. There is no law enacted by Parliament that expressly requires an intermediary to enable the identification of the first originator of information in India on its end-to-end encrypted platform or otherwise authorises the imposition of such a requirement through rule-making.

The company is already facing many petitions in the Delhi High Court against its privacy policy. In one such hearing, the company’s counsel had submitted before the Court that if its users do not adhere to new privacy (end-to-end encryption), policy they will be removed from using its services. The centre had submitted that WhatsApp should be restrained from implementing its new privacy policy.

On May 26, Union Law Minister Ravi Shankar Prasad released a statement saying: “The Government of India recognizes that ‘Right to Privacy’ is a Fundamental right and is committed to ensure the same to its citizens.” He added in his statement, released by the PIB: “The Government of India is committed to ensure the Right of Privacy to all its citizens but at the same time it is also the responsibility of the government to maintain law and order and ensure national security. None of the measures proposed by India will impact the normal functioning of WhatsApp in any manner whatsoever and for the common users, there will be no impact.”

WhatsApp is not the only platform affected. The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, will cover all significant social media platforms with more than 50 lakh users and digital media platforms, including news sites and streaming platforms. Twitter’s Indian rival, Koo, which has 60 lakh users, is the only platform that has complied with the Rules so far. Facebook (41 crore subscribers) and Google have said that they will comply with the new rules. At least five industry bodies, including the Confederation of Indian Industries (CII), the Federation of Indian Chambers of Commerce & Industry (FICCI) and the US-India Strategic Partnership Forum (USISPF) have sought an extension of between 6 and 12 months.

The key points of the new IT Act include:

• The new IT rules require social media companies to remove any flagged content within 36 hours.
• The rules also require social media platforms to act on any concerns related to the dignity of users, including showing nudity, pornographic material, impersonation, etc, within 24 hours after a complaint is made.
• Under its grievances redressal system, social media companies would need to appoint three officers, based out of India, who would handle grievances: (i) Chief Compliance Officer, responsible for ensuring compliance with the Act, (ii) Nodal Contact Officer for 24×7 coordination with law enforcement agencies and officers to ensure compliance to orders and (iii) Resident Grievance Officer, who would be responsible for these functions.
• To ensure adherence to the Code of Ethics, publishers also need to set up a three-tier structure that includes:
• Self-regulation by publishers
• Self-regulation by setting up one or more self-regulatory bodies of publishers. Such a body will be headed by a retired judge of the Supreme Court or High Court or an independent eminent person from media, broadcasting, entertainment, child rights, human rights or other relevant fields.
• Oversight mechanism for self-regulation by the central government. Such a mechanism will have representatives from the Ministry of Information and Broadcasting, Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Electronics and Information Technology, Ministry of External Affairs, Ministry of Defence, and other such ministries and organisations.
• OTTs will have to self-govern and cla­ssify content based on age appropriateness. Films would need to be classified under five age-based categories—U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
• OTTs would need to prominently display age classification of a specific programme along with content describing viewers of the nature of the content. OTTs would also be required to set up parental locks for content classified as U/A 13+ and above.
• OTTs need to take into account India’s multi-ethnic and multi-religious background and “exercise due caution and discretion” while featuring religious or racial practices, or views.
• Social media platforms, OTT platforms and digital media companies will have to file monthly compliance reports, providing details of grievances received and action taken.

All these could lead to innocent people being targeted, caught up in investigations or even landing up in jail. This, according to the messaging platform, would violate universally recognised principles of free expression and human rights.

The new IT rules face at least six legal challenges across three High Courts in the country. The Internet Freedom Foundation has said that the guidelines pose a tremendous challenge to artistic expression and diversity and lead to government-mandated censorship. The Foundation for Independent Journalism has also filed a petition challenging the IT rules. On its part, while maintaining that user privacy will not be affected, the Indian government has stated that “no Fundamental Right, including the Right to Privacy, is absolute and it is subject to reasonable restrictions”. It has said that the requirements in the intermediary guidelines pertaining to the first originator of information are an example of such a reasonable restriction.”

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While the decision of the courts are awaited, what is clear is that the new rules would make operating in the country difficult for digital companies, creating an hostile environment which can only increase the fears that the government is bent on exercising control over posts and social messages that it may not agree with, or like.

—By Abhinav Verma and India Legal News Service

Lead Visual:- Amitava Sen

The Delhi High Court on Friday sought response from the Centre and the Ministry of Information and Broadcasting over a petition filed by online news portal The Quint challenging the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 with respect to online news portals and websites.

A division bench of Chief Justice D.N. Patel and Justice Jasmeet Singh issued notice on the petition filed by the media portal through Prasanna S.

The court has now tagged matter with other petitions with similar prayers and listed them for hearing on April 16.

The plea challenges the IT Rules, 2021 only in so far as they affect digital news portals, and is not with reference to ‘publishers of online curated content’, i.e., OTT media platforms or any other entities sought to be regulated by the Impugned Rules.

The plea sought court’s direction to declare the IT Rules, 2021 as void and inoperative in so far as they define and apply to publishers of news and current affairs content, and Part III of the Rules, in so far as it regulates publishers of news and current affairs content, for being violative of Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution.

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