IT Rules, 2021 don’t infringe fundamental rights, right to freedom of speech: Centre in Delhi HC

The Central government has contended before the Delhi High Court that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) are well within the scope of the Information Technology Act (IT Act), 2000; that they do not infringe any fundamental rights and that there is little evidence to show that they have had a chilling effect on the right to freedom of speech.

These submissions were made in a reply running into about 150 pages, filed in response to petitions challenging the validity of the IT Rules, 2021, particularly the Code of Ethics under Part III applicable to publishers of news and current affairs on digital media, Bar & Bench has reported.

These Rules have been challenged by the Foundation for Independent Journalism which also publishes The Wire, the Foundation's director and The Wire Founding Editor, MK Venu and Dhanya Rajendran, the Editor-in-Chief of The News Minute. Petitions challenging the Rules have also been moved by The Quint, AltNews and the Press Trust of India in the Delhi High Court.

The reply has been filed through Amarendra Singh, Deputy Secretary to the Government of India in the Ministry of Information and Broadcasting.

Highlights of the Central government’s reply

IT Rules, 2021 are within the scope of the IT Act, 2000

The Preamble of the IT Act indicates that transactions carried out through "electronic communication" are within the scope of the Act. Application of concepts in the Act such as "electronic record", "data", "information", etc. are not limited to only commercial transactions or contracts over the internet. Rather, they are defined widely to include various forms of media content which are exchanged over the internet.

The legislative intent behind the IT Act includes the “recognition and institutionalisation of media content in the digital space.” The scope of the Act extends to media content used for electronic communication. Part III of the IT Rules, 2021 is limited to "news and current affairs content" and "online curated content", and is therefore well within the scope of the Act.

It is also contended that the IT Act already has several provisions dealing with media content published or transmitted in the electronic form, including - Section 11, Section 66A (which was struck down by the Supreme Court in Shreya Singhal’s case, but, which the Centre submits indicates that the legislative intent behind the Act has been to regulate media content on the internet), Sections 67, 67A, 67B, 69, 69A, 69B and 79 (3)(b).

It is added that the subjects "News and current affairs content on online platforms” and "Films and Audio-Visual programmes made available by online content providers" lie within the administrative ambit of the Ministry of Information and Broadcasting (MIB).

IT Rules 2021 seeks to curb fake news, misuse of freedom of press etc

The “Statement of Objects and Reasons” of the IT Act itself states that it is intended to “prevent possible misuse” arising out of transactions and other dealings concluded over the electronic medium. The State has a responsibility to ensure fairness within the digital media ecosystem which involves publishers of content on one hand and the audience on the other.

Dissemination of correct information lies at the heart of democratic discourse. Misuse arising out of exchange of information in the digital media space has direct implications for democratic rights of citizens. Disinformation, or simply fake news, on digital media may lead to violation of other fundamental rights of the audience, including the violation of the right to dignity through defamation; violation of the right to privacy through unlawful depiction in the media, violation of the right to life and personal liberty through disturbance of public order, etc.

While the right to freedom of speech and expression, including he freedom of press, is critical for a vibrant democracy like India, the rights of the audience who believe and act upon misleading news cannot be overlooked. Citizens cannot be treated as passive consumers without any recourse to participation in the process of accountability with respect to content being published.

IT Rules, 2021 address the lack of guidelines applicable to digital entities

Before the notification of the IT Rules, digital news media was largely unregulated.

In the absence of guidelines for digital media, an existing set of guidelines, which have been time-tested with respect to print and electronic media, are applicable to news and current affairs content on

digital media as well. In this regard, the IT Rules, 2021 makes applicable the existing Norms of Journalistic Conduct and the Programme Code to digital entities.

IT Rules, 2021 seeks to ensure a level playing field between traditional and digital media

The establishment of a separate institutional mechanism for dealing with media content on the internet is not violative of Article 14 of the Constitution (right to equality).

The reach and audience of digital media is far wider as compared to traditional media platforms, the Centre highlights. This also means that the risk of false or misleading information is also greater over the internet. Digital media also does not have the level of investment, infrastructural and logistical requirements that traditional media outlets do. Online platforms have transformed consumers into producers as well (“prosumers”).

The Code of Ethics under the Rules merely extends the existing standards and norms of traditional news media to apply for digital news publishers, without providing for any new restrictions or regulations. Such application of existing time-tested legal norms to be followed by digital media would not constitute an intrusion into the fundamental right to freedom of speech and expression of digital news publishers.

IT Rules 2021 do not amount to “chilling effect”, government surveillance

The IT Rules, 2021 establish a civil mechanism of grievance redressal related to the Code of Ethics. Such a mechanism is bereft of any police

powers. The entire grievance redressal procedure is civil in nature, and any decision regarding violation of the Code of Ethics does not lead to any criminal punishment.

No evidence has been presented to show that the IT Rules, 2021 have led to self-censoring or a chilling effect on free speech, as contended by the petitioners. Reliance is placed on the ruling in Anuradha Bhasin vs Union of India to recount the Supreme Court’s observation that within evidence to show that there is a chilling effect on freedom of press, it remains speculative and “impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self-serving purpose."

The IT Rules, 2021 contain no provision for monitoring of content of the digital media publishers by the government or any other body. The institutional framework established through Part III deals with publicly published content. Therefore, the question of surveillance does not arise. In this regard, there is no control of the government over the content published by the news media.

On these grounds, the Centre has urged the High Court dismiss the challenge to the validity of the IT Rules, 2021.