MUMBAI: The new Information Technology Rules of 2021 are “so wide and so vague’’ they will have a “terrible chilling effect’’ and a “draconian effect’’ on the people who want to put content on the internet, media, editors, publishers too, contended a petitioner before the Bombay high court on Monday. For the first time, the ministry of Information and Broadcasting, seeks to regulate content and free speech beyond the reasonable restrictions permitted under article 19(2) of the Constitution, submitted senior counsel Darius Khambata, appearing for a digital portal that has raised a constitutional challenge to the validity of the new, amended rules. He likened it to policing the media and said “9 out of 10 people may not say anything out of fear’’ as the two rules empower the I&B ministry to direct deletion and modification of content.
The HC was hearing two Public interest litigation (PIL) against the new IT rules that came into effect in May. One is by AGIJ Promotion of Nineteennonea Media pvt Lt and Ashish Khetan, represented by Khambata. The second PIL, by Nikhil Wagle, argued by his counsel Abhay Nevgi said the rules were nothing but an “attempt at mass censorship’’ and that the rules “are a new way of bypassing the legislature for whatever its reasons.” Khambata and Nevgi sought interim orders to stay the new IT rules.
Khambata sought staying of “rules 9, 14 and 16 which induce a chilling effect and anti-free speech.’’
Khambata said, “the essence of democracy is criticism of public officials. But no, now you do it at your own peril, because these new rules will censure, punish and sanction you if it is not found in favour of an inter-ministerial committee.’’ Even ‘music reviews’ have been pushed into the rules, he smiled. “They do not want sting operations too,’’ he added. “That is the sting in the rules.’’
The new rules are called the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. They came into effect in May 2021.
Arguing before a bench of Chief Justice Dipankar Datta and Justice Girish Kulkarni, Khambata said main ground was the “indeterminate and wide terms’’ of the rules by which “regular publishers, authors, editors are all chilled because for anything they can be hauled up.’’ The rules are “manifestly unreasonable’’ and go beyond the IT Act of 2000, its aims and its provisions. He said the rules define the ‘news and current affairs content’ very widely and brings within its ambit publishers of news and current affairs content and makes them liable for any contravention of the rules.
The additional solicitor general Anil Singh for the Centre said its transfer petition was likely to come up before the Supreme Court on Tuesday and sought time. The HC, observed that it was a month when he had mentioned about the transfer petition before the SC and asked what steps were taken since, but posted the matter for further hearing to August 10. The HC said it will on Tuesday at 2.30pm hear the Centre’s submissions to oppose the two PIL, provided it is not precluded by an SC by then.
Singh said while only Kerala high court, via a single Judge bench has passed interim orders of no coercive steps, two other high courts, including Madras HC had issued notice to the Centre and not stayed the Rules. He said there are 15 petitions filed all over various high courts against the Rules, hence Centre had sought a transfer all, to the SC.
The Act provides for rule making power to carry out provisions of the Act. Section 69 A gives power to the Centre to block access by the public and section 69 A (1) does not go beyond the reasonable restrictions under the Constitution, he said.
The rules being objected include rule 9 which calls for adherence to Code of Ethics by publishers and rule 13 that provides for an “oversight mechanism by the Central government’’ which empowers an interdepartmental committee to hear grievances and complaints and take action. The other is rule 14 (inter departmental committee empower to order deletion or modification of content) and rule 16 on ‘blocking of information in case of emergency’ “without giving an opportunity of hearing’’ which Khambata read out before exclaiming, “see the draconian nature of the powers. And this is by the I&B Ministry completely ignoring that section 69A of the IT Act there is a full fledged mechanism already set up under the 2009 rules…now this ministry is to be given overriding powers to effectively monitor, censor and regulate content on the internet. It is the most draconian assault on free speech and democracy in recent times.’’ “It can never do good to a democracy to have that.’’
‘The code of ethics’ under the rules “really give the game away as to why this has to be brought in’’ said Khambata. They are completely beyond the rule making power under the IT Act, he said as they have nothing to do with regulating e-transactions which is the scope of the Act.
They seek to regulate norms of journalistic conduct and also the cable television content by tapping into what were guidelines of the Press council and the Cable TV code of ethic to give them a mandatory status, he said.
Khambata read from the journalistic norms prescribed by the Press Council of India against ‘crass commercialism’, and gives guidelines on criticism of public figures, accuracy and fairness, sting operations, to eschew suggestive guilt, he said “as citizens each one of them are laudatory’’ but as SC has held these sorts of grounds can never be grounds to restrict free speech. “Who will decide? An inter ministerial committee?’’ he asked. Reading the definition of ‘accuracy and fairness’ he the press has to eschew publication of ‘inaccurate, graceless, misleading or distorted material…rumours ought not to set forth as facts’ adding what may be graceless to one, may be essential to another…but it doesn’t give right for the government to interfere…this is a brazen attempt to regulate content which is not regulatable under Article 19(1) (a).’’
Nevgi added that his challenge was too three parts of the rules. He said while the ‘dark web’ is being unable to be controlled, the government is trying to regulate social media platforms where innocent people are trying to express themselves. He said, ‘something not in parent Act cannot be introduced by a backdoor method.’’ He also said there was no adequate debate on the rules.
Source: https://timesofindia.indiatimes.com/india/new-it-rules-will-have-terrible-chilling-effect-of-free-speech-bombay-hc-told-sc-likely-to-hear-transfer-petition-on-tuesday-says-centre/articleshow/85179220.cms