Sep 30, 2021

Bombay High Court’s Interim Stay on Certain Rules of Intermediary Guidelines and Digital Media Ethics Code

The Bombay High Court in Agij Promotion of Nineteenonea Media Pvt. Ltd. v. Union of India, has issued an interim stay on Rules 9(1) and 9(3) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘IT Rules’) on the grounds that it is ultra vires the Information Technology Act, 2000 (‘IT Act’). The IT Rules enacted in February 2021 apply to publishers if they are: (a) located in the territory of India by having a physical presence in India; or (b) if they conduct a systemic business activity by making their content available in India.

Rule 8 of the IT Rules states that the code of ethics is to be followed on digital media by: (a) publishers of news and current affairs content; and (b) publishers of online curated content. Rule 9(1) of the IT Rules requires publishers to adhere to the Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978 and the Program Code under Section 5 of the Cable Television Networks Regulation Act, 1995 (‘Codes of Ethics’). Further, Rule 9(3) of the IT Rules requires that publishers operating in India adhere to a three-tier grievance redressal mechanism: (a) self-regulation by the publishers; (b) self-regulation by the self-regulating bodies of the publishers; and (c) oversight mechanism by the Central Government.

The petitioners challenged Rules 9(1) and 9(3) as being ultra vires the IT Act, arguing that: (a) Rule 9 amounted to a virtual censorship of information; (b) censorship or scrutiny on messages or information cannot be exercised unless it falls within the parameters of Article 19(2); (c) the restriction imposed are beyond the restrictive ambit of powers laid down under Section 69A of the IT Act; and (d) they have a chilling effect on the internet, are unreasonable and are arbitrary.

The Bombay HC issued an interim stay on Rules 9(1) and 9(3), until the next hearing date (which has not yet been allotted) on the basis that: (a) Rule 9 imposes an obligation on publishers to observe the Codes of Ethics alien to the IT Act, which is illegal; (b) Section 87 of the IT Act conferring rule making powers on the Central Government did not allow for rules to be framed contemplating such restrictions; (c) the Codes of Ethics are framed under different statutory regimes and independent legislations and cannot be appended to the IT Rules; (d) substantive action cannot be taken for the contravention of the Code of Ethics; (e) Section 69A of the Act allows for censorship of content on grounds of security, interest of sovereignty of India etc., however Rule 9 goes beyond the powers laid down in Section 69A; and (f) Rule 9 also infringes upon fundamental rights laid down in Article 19 of the Constitution by imposing restrictions on free speech and expression and bringing about a chilling effect.

The Madras High Court in an order dated September 16, 2021, observed that the Bombay HC Order staying Rules 9(1) and 9(3) of the IT Rules must have a pan-India effect. The Court also noted that there is a “substantial basis” for assertions that Rule 9 violates Article 19(1)(a) of the Constitution and that Rule 9 may be applied to intermediaries coercively. Given that similar cases are pending before the Supreme Court of India and are expected to be heard in early October, the matter has been adjourned to be heard on October 27, 2021, and there have been no further updates.




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