The Bombay High Court’s recent interim order suspending certain key provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) is the latest of several setbacks suffered by the Government of India over the framework introduced earlier this year to regulate social media companies, video streaming services, and other digital platforms.
Since their notification in February 2021, the IT Rules have triggered the resignation of the country’s IT Minister, a war between the social media giant Twitter and Government officials, and no less than four separate writ petitions in as many High Courts across India.
A rule that violates the law
The Bombay High Court’s interim order found Rules 9(1) and 9(3) of the IT Rules to be, prima facie, illegal for two reasons: First, these rules require news publishers to comply with codes of ethics that originate under statutory regimes completely alien to the IT Act; secondly, and perhaps more importantly, the IT Act — given that it does not seek to censor content on the internet — does not empower the Government to formulate rules to regulate or censor content on digital platforms. In its crisp 33-page order, the court noted that Rule 9 does not comply with its parent legislation, viz. the IT Act, and thereby infringes upon the fundamental rights guaranteed to publishers under Article 19(1)(a) of the Constitution of India.
Future of digital censorship
The court’s observations and interim order spell serious trouble for the Government and its endeavours to regulate digital news publications and news aggregators in the country. Ordinarily, Indian courts are inclined to preserve a statutory provision when their constitutionality is challenged. In most cases, subordinate legislation such as the IT Rules enjoys a presumption of constitutionality and validity, placing the burden of proof on petitioners who challenge such rules when petitioning the court to strike them down. The Bombay High Court’s interim order is a strong indication that significant operative portions of Part III of the IT Rules may finally be struck down as unconstitutional.
Notably, Part III, which deals exclusively with the code of ethics and safeguards applicable to digital media platforms, is a crucial part of the Indian Government’s effort to increase control over news content disseminated over the internet. This interim order is also likely to influence benches of the Karnataka, Delhi, Madras, and Kerala High Courts, which, individually, are hearing petitions challenging the constitutional validity of various provisions of the IT Rules.
While the Government of India has filed petitions seeking to club and transfer these challenges to the Supreme Court of India, the Bombay High Court’s ruling may encourage other courts across the country to issue similar interim stay orders on other aspects of the IT Rules. For instance, a writ petition filed by noted Carnatic singer T.M. Krishna before the Madras High Court challenges not only Part III of the IT Rules, but Part II as well. Part II sets out the due diligence and grievance redressal obligations of intermediaries. Any interim stay on this part of the IT Rules would be disastrous for the Government and a huge victory for platforms such as WhatsApp that have publicly opposed and challenged the traceability requirements embedded in Part II.
Impact on OTT Players
Any decision on Part III of the IT Rules would also be of significance to the plethora of Over-the-Top (OTT) streaming platforms operating in India. While most of the controversy with regard to the IT Rules deals with their impact on news and current affairs, a few petitioners and courts have already noted the likely impact of these rules on freedom of expression and artistic elements. If struck down, the safeguards and procedures set out under Part III would no longer govern OTT platforms, and these platforms would once again find themselves in a nebulous regulatory environment.
Such an outcome could cut both ways for any media service that delivers content over the internet. Unlike news publishers, these OTT platforms have refrained from publicly condemning the IT Rules. In fact, many of them candidly admit that they would rather be regulated under the IT Rules than be subjected to a specialized statutory framework of a heavy-handed regulator. These stakeholders note that the IT Rules, despite their many strictures, do implement a self-regulatory system that could allow industry players to operate without excessive external intervention or censorship.
Back to Square One?
The Government may soon have the uphill task of defending Part III of the IT Rules before the Supreme Court. In doing so, the Government would need to convince the court that its powers to censor and regulate digital content are implied under the IT Act. Should the Government fail in this endeavour—an outcome that appears likely at the moment—its only recourse would be to introduce a new law or amendment before the Indian Parliament that specifically includes online news and content beyond the ambit of the Government’s rule-making powers. This may be a tall order, given that the Government has invested two-and-half years of effort to revise the intermediary regime under the IT Rules.
The author is Partner & Yajas Setlur, Principal Associate at J Sagar Associates.