Key takeaways

  • The constitutionality of the IT Rules 2021 can be challenged on the grounds of manifest arbitrariness, excessive delegation and violation of Article 14
  • Providing for a higher level of grievance redressal where someone from the bureaucracy sits and appeals against the decision taken by the tier 2 tribunal or a self regulatory entity reflects upon an the issue of separation of powers
  • Jurisprudence around the scope of modification of content under section 79 of the IT Act remains scarce
  • The Rules can have a chilling effect on the impact of free speech of media

In a panel discussion held by MediaNama on the impact of IT Rules, 2021 experts shared their views on how the IT Rules, 2021 will impact news in India, and what it means for digital media organisations. The panelists included Abhishek Malhotra (TMT Law), Gurshabad Grover (Centre for Internet and Society). Matthew Chacko (Spice Route Legal) and Udbhav Tiwari (Mozilla).

Webnyay and Centre for Internet & Society were our community partners and the discussion was supported by Google.  All quotes have been edited for clarity and brevity.

Grounds for challenging the Rules

Do you think that under subordinate legislation, these new categories of intermediaries could have been created?

Chacko disagrees that this is unconstitutional as courts do not support that as grounds for unconstitutionality, one that the law is badly drafted; and two is what some would call the Don Quixote objection (“tilting at windmills”). “None of this makes sense, but unfortunately, none of the courts agree that those are valid reasons to strike down a law. On the technical legal grounds, the argument that these rules are beyond what IT act allows you to do, I’d love to say, yes. Because I hate these rules. But I don’t think under present constitutional jurisprudence , there are grounds to say that the rules are ultra vires the statute.” argued Chacko.

Independent advocate Priyadarshi Banerjee countered that the test of manifest arbitrariness remains a ground of challenge for a subordinate legislation, which is plainly outrageous. He added that this test is no longer simply a test for principal legislation, but also for subordinate legislation thanks to Justice Nariman. Chacko contended that manifest arbitrariness is a relatively newly fleshed out ground. 

“Various old judgments clearly indicate that manifest arbitrariness emanates out of article 14. I don’t think there is enough flesh on manifest arbitrariness to be a single ground of challenge, where articles 14, 19, 21 read together indicates that there is good reason why this should not be allowed. Manifest arbitrariness may be allowed as an additional ground for saying something is unconstitutional. I don’t think the constitutional separation of powers allows for that.” — Matthew Chacko

Banerjee recalled a decision by Justice Nariman in cellular operators, where he had struck down a subordinate legislation for not being adequately tuned to realities. “Those are essentially the highlight grounds on which these present 2021 rules could be challenged in the court of law successfully,” he argued. He further said that the function of the legislation is to actually accurately define the scope of particular legislative policy, which has to be carried out by the legislation and cannot be delegated. “So the argument would be that regulation of news functions is a policy function completely outside the scope of the IT Act itself. Thus, such a novel policy function cannot be delegated through rules.”

Narayan was of the opinion that as long as the conditions laid out for manifest arbitrariness are met, along with arguments that prove how the rules are ultra vires the Act, they remain valid grounds for challenge. “The difficulty in all of these challenges is going to be whether we can tailor our challenge to these old established grounds, but the fact that the ground exists of course is completely there. As far as things like take down are concerned, they are challengeable under standard grounds of chilling effect on free speech, proportionality, etc.” 

Malhotra went on to explain four grounds to challenge the vires and on grounds of constitutionality. 

“First these regulations have been notified under 87(1)and 87(2)(z) and (zg). One of the important aspects to remember is 79(2) says that you will get that safe harbor protection, if you satisfy certain conditions. One of those conditions is that you should not select or modify the information contending the transmission. When you are getting into the aspect of aggregation or online curated content or publishers of news, you are automatically getting into the zone of where you are not going to be getting protection.” So if the focus of the Act is to provide safe harbor intermediaries, then it should be limited in that sense by way of these guidelines or rules to provide for those circumstances which need to be adhered to or followed by intermediaries for them to get protection under 79. “So introducing anyone except a pure play intermediary for the purposes of regulation from 87(2)(zg) there is a clear violation of the constitutional principle and this is an excessive delegation of power,” he reiterated.

Secondly, in case of news publishers there is a clear Article 14 violation in as much as where as you say that a facsimile edition of a newspaper will be exempted from these rules. Therefore, whatever is coming out in print, if they come out in digital domain exemption, these rules do not apply. “But you allow for application of these rules for live streaming of news content already in the television domain. So clearly there is an Article 14 violation. I don’t see an intelligible differentia here to distinguish between the print and television form of the content.” he said.

“The third aspect is a separation of powers issue.” In the three-tier grievance redressal mechanism, level 2 provides for a self-regulatory mechanism where an independent body is to be headed by a person who should be either an eminent jurist or a retired Supreme court or High Court Judge. Malhotra argued that providing for a higher level of grievance redressal where someone from the bureaucracy sits and appeals against the decision taken by the tier 2 tribunal or a self regulatory entity, clearly shows an issue of separation of power.

“The fourth argument for challenging the vires is that other than intermediaries, when you’re getting into the domain of news and current affairs in the digital domain, and online entertainment content and films, there is also a separation that has been carried out by the Allocation of Business Rules 1961. Under these Rules, a notification dated November 2020 these two aspects of content were specifically handed over to the MIB. This is the first time I’ve seen it, that the Ministry under the IT Act issues the net notification, and then says the nodal ministry for enforcing rule eight onwards, chapter three, is MIB. It’s completely unheard of in any jurisprudence,” concluded Malhotra.

The interdepartmental committee at the third level of grievance redressal is neither an independent arbitration body, a part of the judiciary, nor is it a tribunal. 

In response Malhotra saidby this three tier structure, you’re actually providing an appeal against a decision supposedly given by a panel which is headed by a judicial officer or a retired judicial officer, and then being decided by a bureaucracy. I think that’s a clear violation.

Scope of modification under 79

A provision of 79 which has completely been left ignored by courts so far, is the requirement that intermediaries do not modify content.

The scope of modification is incredibly vast. Nobody’s really spoken about what that means or really tried to explore or go into what that could imply, urged Joshi. And depending on how it’s really interpreted, if ever, it can be broad enough to cover all kinds of information ever published on any online website or narrow enough only to cover specific algorithmic mediation of content.

How is part two of these rules intended to be enforced in that, what is the legal penalty that publishers should be wary of. And what’s the expected enforcement of this likely to be, apart from being called a self regulatory code. Joshi added “To my mind, there are two things that could potentially apply in terms of requiring news aggregators, publishers etc to enforce this. One is the residue penalty under Section 45, which applies to affected users and therefore may not even apply in this case, which is a residual penalty for anything kind of, any kind of offense or non-compliance with rules.”

Grover agreed that we do need more jurisprudence on the three conditions that are set out in 79, to understand what is permissible and what is not permissible. “There is only one judgment that talked about modification of the transmission, and that was in the Myspace case, where Myspace was converting the audio track by uploaders into another format, and maybe inserting ads in the middle algorithmically. And the court said that’s fine, that’s not what 79 means by modification,” he recalled. The second point, Grover said, is about selecting the receiver of transmission. “And I think that’s why their news feeds and algorithmically selecting content has a sword hanging over it. Because essentially what you’re doing is, even if I’m friends with all of you on Facebook, Facebook decides who sees my post right, you can see it and not. In that lay person telling of it, it is selecting the receiver of a transmission,” he explains.

So it’s the same with many other services including Google News and in many RSS feed readers like Feedly which prioritize certain news for you, based on your reading habits.

Grover said “In the 2021 rules, the Good Samaritan provision or allowing for content moderation also still doesn’t address these concerns that have been like a 79 problem for a while. Further, it doesn’t cover spam, it doesn’t cover specific communities that want to moderate content on their own basis right. So, we do need that wide allowance which can only perhaps come through amendment of the IT Act,”

Impact of Section 69A

69A(3) applies specifically to particular directions issued under 69A(1). As such there’s no clear regulatory enforcement of part two of these rules. How will orders under 69A be issued after the three tier mechanism is put in place?

Joshi suggested that one thing that could happen is that the interdepartmental committee could frame an order in a direction under 69A(1). That’s kind of the anticipated method, where one of the reasons under which a 69A(1) order can be issued is by linking it to the conditions of part two of the rules; and therefore through the back door there’s an enforcement requirement under 69A(3). 

Grover “the new rules are creating a parallel mechanism with the blocking rules, but will have the penalty as 69A. So, I’m imagining that this part two was separate from these intermediary guidelines. So now there are two sets of blocking rules, one is the blocking rules under section 69A and, the other under this ethics code. The punishment for non-compliance seems to be the same, which is seven years under 69A(2).

Content Code and Press Council of India applicable to online news

Are both the content code and the Press Council of India guidelines applicable to an online news entity, since it’s mixed media? And do you see any areas of conflict between the two?

Malhotra said that it has not been clearly delineated in the regulations like a lot of other ambiguous stuff. 

“So there could be some audiovisual content, there could be some which is purely written content, in the digital context. The Programme Code certainly cannot be applicable to non-audio visual space. So whereas the Journalistic Code of Ethics was originally evolved in the context of print media. The Code of Ethics and the principles enshrined there would be applicable to the audio visual domain, in addition to the Programme Code, but the same is not true of application of Programme Code to the non audio visual media. So for the non-audiovisual media, it’s only the Journalistic Code of Ethics; for the audiovisual media it’s possibly both.” – Abhishek Malhotra

Is there a requirement of an SRO for news aggregators? And is there any risk of coercive action against news aggregators in the absence of an SRO for them?

Malhotra argued that there’s no independent manner of regulation specifically concentrating on the news aggregators. “So if it is falling within the superset of an arbiter of news content, then clearly, the publisher’s news content falls within part three, which is the part to which the SRO process applies. Then by that analogy, it will apply to news aggregators as well,” he explained.

And in the event that news aggregators do not have that mechanism, how will you go about setting up a mechanism? Malhotra asked This becomes another ground for challenging constitutionality, claims Malhotra. “Are you forcing me to create an association as a precursor to following these regulations?

Can news aggregators be asked to take down content under the IT rules?

Tiwari said it can. One could definitely imagine an order being issued that prohibited a certain media content entity from showcasing any content that irks the government or discusses a particular topic they don’t want to be discussed. “And that’s a pretty scary thought,” he added. 

What these rules are going to do in terms of boxing news in and regulating it, especially in the digital world.

Seshu pressed upon a need to figure out how digital content platforms would like news in the digital world to be regulated, because in the current situation they are left reacting to what the government has given them.

Impact on free speech

The impact on free speech online from an aggregation perspective, since a lot of our access to news comes through aggregators?

Grover argued that even if we do not take the scope of delegated legislation argument, 69A allows content takedown only for particular grounds and those relate to national security and public order, etc. Grover said “They’re not as expansive as grounds under Article 19(2). So morality and decency, for instance, are not included under 69A. If you look at some provisions of the code of conduct, it includes some content which is relatable to morality and decency, even though one can discuss if it goes beyond 19(2). So that’s another way in which, it’s even beyond the scope of 69A some of the code of conduct content here.” 

He continued to say that such regulatory mechanisms are often used as a blunt instrument to intimidate news publishers. Gurshabad said “One can imagine that news aggregators might face similar threats, and we’ve seen in the case of Twitter for instance, where the hash tags selected as trending become a topic of contestation. We’re in that territory now where what these aggregators and platforms prioritize, that is also under sort of great scrutiny by the state. So even in those areas we can begin to see straight threats of censorship or punishment.” 

He insisted that specifically with regard to media freedom, the government needs to make up its mind specifically when treating news aggregators – whether it wants to treat these aggregators as intermediaries, whether it wants them to exercise, some or little, or no control over what they do, or have this expansive Code of Conduct which they need to behave by. 

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