The Central government on Wednesday defended the legality of the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in its counter affidavit filed in reply to a challenge to the constitutional validity of the new IT Rules.
The Delhi High Court is dealing with various petitions on several digital news platforms, including The Quint, The Wire and others, challenging the newly enforced Information Technology Rules, 2021. The newly notified rules regulate the functioning of online media portals and publishers, over-the-top (OTT platforms), and social media intermediaries. The plea has been moved by the Foundation of Independent Journalism, an organisation that publishes “The Wire,” a digital news website.
The pleas sought striking down of specific part of the IT Rules on the ground that it violates Article 19(1)(a) and 19(1)(g) of the Constitution, creating a chilling effect on media freedom, Article 14 of the Constitution by creating an unreasonable classification and by setting up a parallel adjudicatory mechanism to be overseen by the officials of the executive and is ultra vires the IT Act.
The affidavit was jointly filed by the Ministry of Information & Broadcasting, and the Ministry of Electronics & Information Technology.
‘To prevent misuse of freedom of press’
It stated that the regulations seek to prevent misuse of freedom of press by empowering the audience and that the grievance redressal mechanism was in consonance with the spirit of the public’s right to know. It also justified the creation of a governmental oversight mechanism, including its power for deletion, modification and blocking of content of publishers.
It was submitted by the Centre that consequences of fake and misleading audio-visual news on digital media have, in the recent past, led to deaths of innocent people on false pretexts such as in case of rumours of child-lifters and urged it to dismiss pleas challenging recently amended IT rules (The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021).
What does the IT Act say?
The IT Act identifies the originator of an electronic message as one being different from an intermediary. The key difference between the originators and intermediaries lies in the control exerted by these entities over the content which is published on digital media. While intermediaries only deal with third party content, originators directly control the content which is being published. In this regard, it is submitted that while the Act, under Section 79, provides safe harbour for the content being published by an intermediary, originators are not entitled to any safe harbour prOVISIOns and are mandated to take fun responsibility for the content published by them.
Furthermore, the term ‘originator’ is a broad term that includes persons generating and transmitting electronic messages, both in the nature of public and private communication irrespective of the nature and purpose of the message. In this regard, it is submitted that publishers of news and current affairs content, as being different from intermediaries, are originators of electronic messages of the nature of news and current affairs content, and therefore, these entities are well within the scope of the Act.
That within the broader scope of communication, one can make a distinction between public and private communication. While communications such as sending and receipt of email, and conclusion of contracts over the internet are private communications between entities, publishing content on social media platforms, digital news portals and OTT platforms is essentially a public communication. The Centre submitted that the Information Technology Act recognizes both private and public communication. In respect of intermediaries, the users are the originators of content. Rule 3(2) ofthe Information Technology (Intermediary Guidelines) Rules, 2011 provided for intermediaries to inform the users not to host, display or upload certain forms of information.
With regard to an institutional mechanism for publishers of news and current affairs content under the IT Act, it is submitted that despite being within the scope of the Act, lack of institutional mechanism for these entities was due to the ambiguity regarding the Ministry under which such a mechanism was to be administered. This ambiguity was resolved by the Central Government notification dated 09.11.2020, through which the subject “News and current affairs content on online platforms” and “Films and Audio-Visual programmes made available by online content providers” was transferred to the Ministry of Information & Broadcasting. In this regard, it is submitted that Part III of the Rules dealing with public communication by publishers of news and current affairs content, would be administered by the Ministry of Information & Broadcasting utilizing the authority delegated by MeitY under the IT Act.
In respect to the application of the Norms of Journalistic Conduct or the Press Council of India under the Press Council Act, 1978, affidavit submitted that The Press Council of India has the mandate to look into various aspects related to content appearing in Print Media. The Press Council has prepared the Norms for Journalistic Conduct for this purpose. Additionally, the Council has the powers to conduct enquiries on the basis of complaints and take suitable action including warning, admonition, censor, etc.
Competition for eye-balls, regulatory vacuum has led to fake news in digital media
The Union government argued that an economic environment marked by competition for eye-balls and regulatory vacuum with respect to the content on digital media has led to spread of fake news and other potentially harmful content without any accountability of digital news publishers. There is a difference in the content published/broadcast by traditional media entities on newspaper/television and the content published by their digital media arms. Digital medium is format agnostic. This feature has been used by digital news entities of both newspapers as well as television news channels. Digital platforms of many newspapers conduct panel discussions in the audio-visual fonnat. These are not possible to be published in the newspaper but are made available 011 digital media in the form of videos or podcasts.
With regard to the Oversight Mechanism and the role of the Central Government, it is pointed out that even at present, in respect of traditional TV channels, there is an oversight mechanism in the Government by way of an Inter-Ministerial Committee (IMC) which looks at certain grievances relating to the violation of the Programme Code, a mechanism which is in existence since 2005.
That the laws of the land apply to all individuals and legal entities, including the publishers on digital media. In this regard, the Code of Ethics does not apply any new restrictions but only reiterates that the content which has already been prohibited under any law for the time being in force not to be published on digital media.
In this regard, the Centre submitted that many of the laws have been upheld by various Courts of law, including the Supreme Court, and a mere repetition of the same by the Code of Ethics is not an infringement into the right to freedom of speech and expression of the publishers on digital media. “That the provisions similar to the above mentioned laws also exist in the Norms of Journalistic Conduct, and the Programme Code which constitute the Code of Ethics under the IT Rules. These provisions are intended to safeguard the rights of the persons who are reported about in news; rights of the audience which reads, views or shares the content; while simultaneously being sensitive to the wider society, with a special emphasis on the concerns related to the vulnerable sections,” the affidavit said.
“Over 1,800 digital media publishers, over 97% of them being publishers of news and current affairs content, have appointed a Grievance Redressal Officer (Level-I), and furnished their information to the Ministry. None of these publishers, who have been able to establish communication with the Ministry, have expressed any difficulty arising out of the number of grievances which are being received/redressed by them. Additionally, the publishers have the liberty to appoint any of their existing employees as the Grievance Redressed Officer for the purpose of the Rules. Moreover, in relation to Level II of the grievance redressal mechanism, many publishers have also expressed their willingness to constitute their self-regulatory bodies,” the affidavit read.