New rules at the Center for Information Technology (IT) could deprive the media of their independence and the fourth pillar of democracy could cease to exist, Madras high court judges said in ordering a suspension on Thursday. parts of the new government regulations, and prevented it from taking action against social media companies for the time being.
The IT rules, notified in February, contain a host of new directions and responsibilities for social media companies (also known as intermediaries), news websites and streaming content providers (also known as OTT services) such as Netflix. and Amazon Prime.
The Madras High Court on Thursday became the third court of appeals in the country to block the operations of the rules relating to the last two – in particular two clauses contained in Rule 9 – paragraphs 1 and 3. It also declared an action in under Rules 3 and 7, which deals with social media companies and their safe haven status, cannot be taken until it has ruled on the petitions.
The court heard two motions – one filed by Carnatic music singer TM Krishna and another by a set of 13 news websites as part of the Digital News Publishers Association (DNPA).
“At first glance, the petitioner’s grievance is based on the fact that the mechanism of control of the media by (the) government may deprive the media of their independence, and the fourth pillar, so to speak, of democracy may not be at all there, ”said the trial court of Chief Justice Sanjib Banerjee and Judge PD Audikesavalu, while remaining within the sub-rules.
Sub-rule 1 requires digital publishers to adhere to a code of ethics while sub-rule 3 provides for a three-tier regulatory mechanism that is ultimately led by the government.
On July 9, Kerala’s high court ruled that the new rules appeared to give “excessive powers” to “unreasonably and unacceptably” restrict media freedom of speech and expression, and on August 15, a court of the high court of Bombay declared these special provisions. were an intrusion on free speech rights and beyond the scope of the main statute under which the rules were framed, the Information Technology Act, 2000.
While the functioning of these sections was practically the same as having been suspended with the second ordinance – that of the Bombay High Court on August 15 – the new ordinance now covers more ground because it prevents the Center from acting by invoking either the rule. 3 or Rule 7.
Rule 3 concerns the due diligence that social media intermediaries will need to exercise in ensuring that certain types of content, such as that which is defamatory or false, does not remain on their platforms, while Rule 7 sets out the power of the government removing this is known as the Safe Harbor provisions. The Safe Harbor provisions essentially mean that social media companies will not be responsible for what users post on their platform.
In this regard, the court referred to the 2015 Supreme Court order (in the case of Shreya Singhal v Union of India) and relied on the observation of the highest court that “he would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary must then judge which of these requests are legitimate and which are not ”.
The Madras High Court has accepted the present petitions that although the petitions were not brought by website platform hosts, social media platforms “are used by everyone and there is real apprehension that ‘a wink or a nod from the appropriate circles could result in the platform being inaccessible to a citizen.’
According to the court, the action invoking one or the other of these rules will be “subject to the results of the lawsuits”.
The judges in their order also note a second reason why a new order was issued after the suspension of the Bombay District Court: “… it may not have been necessary to make an independent order. However, it is submitted on behalf of the applicants that notwithstanding the order made by the Bombay High Court of Justice, which is expected to have pan-Indian effect, notices were issued to the applicants subsequently requiring the applicants to adhere, between inter alia, said Rules and Rule 9 thereof. ”
Additional Solicitor General R Sankaranarayanan representing the Union government agreed at the hearing that this would have a pan-Indian effect.
At present, there are a total of 19 pending high court applications and each emanates from a unique set of circumstances, the Ministry of Electronics and Information Technology said on August 25 ( Meity) at the high court of Madras.
Meity’s spokesperson did not respond to requests for comment on Thursday.
The ministry separately moved the Supreme Court asking that all these requests be transferred to the highest court. On September 3, the Supreme Court ordered that the government’s petition be filed six weeks later.
Experts welcomed Thursday’s order.
“This is the correct legal and constitutional position taken by both courts,” said Gurshabad Grover, senior researcher at the Center for Internet Society. “If you look at the guidelines for intermediaries, and the digital media code was notified under sections 69A and 79 of the 2000 IT law, both were applicable to what the IT law called intermediaries. Whereas if we take a look at Rule 9, we will see that it applies to digital news publishers and online content platforms. The parent provisions were never intended to regulate these entities. Therefore, this is clearly a violation of both the delegated legislative power conferred on the central government and the separation of powers. Because without a parental law that allows this, the executive should not regulate these entities, ”he said.