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Bombay HC stays parts of IT Rules mandating adherence to code of ethics

A bench of Chief Justice Dipankar Datta and Justice G S Kulkarni stayed these two sub-clauses of the Information Technology
A bench of Chief Justice Dipankar Datta and Justice G S Kulkarni stayed these two sub-clauses of the Information Technology (Pixabay)

Bombay HC stays parts of new IT Rules which mandate adherence to `code of ethics' by digital media

Saying that "dissent" is vital for democracy, the Bombay High Court on Saturday granted an interim stay to the operation of parts of the Information Technology Rules, 2021 which require that all online publishers follow a "code of ethics". Sub-clauses 1 and 3 of clause 9 of the new Rules were, on the face of it, "manifestly unreasonable", and "the indeterminate and wide terms of the Rules bring about a chilling effect qua (regarding) the right of freedom of speech and expression of writers/editors/publishers" as they can be hauled up for anything if the authorities so wish, the HC said.

A bench of Chief Justice Dipankar Datta and Justice G S Kulkarni stayed these two sub-clauses of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, saying they seem to violate the petitioners' constitutional right to freedom of speech and expression under Article 19. "Dissent in democracy is vital....For proper administration of the State, it is healthy to invite criticism of all those who are in public service for the nation to have a structured growth, but with the 2021 Rules in place, one would have to think twice before criticizing any such personality, even if the writer/editor/publisher may have good reasons to do so," the judges said. If a committee proposed under the rules did not approve of criticism of a public figure, anyone who criticizes such a person would invite punishment, said the court.

The HC order came on petitions filed by legal news portal The Leaflet and journalist Nikhil Wagle which challenged several provisions of the new IT Rules claiming that they were vague and likely to have a "chilling effect" on a citizen's right to free speech. The Rules went beyond the scope of the main IT Act and also the `reasonable restrictions' on freedom of speech and expression allowed by Article 19 (2) of the Constitution, the petitioners said.

The new Rules are "manifestly unreasonable and go beyond the IT Act, its aims and provisions," HC said. The IT Rules, 2021 include an appendix on 'Code of Ethics' that a publishing body, journalist, an intermediary or any other person posting content online must adhere to. These norms include an advisory code of conduct prescribed by the Press Council of India (PCI) and the Cable TV network (CTVN) Rules. The HC pointed out that the IT Act itself did not have a provision for bringing in such censure on online content. The PCI and CTVN norms were formulated under separate statutory legislation but the Union government tried "illegally" to grant an "exalted status" of mandatory compliance to such norms, the court said. "People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles," the high court said.

The HC, however, refused to stay clause 14 that pertains to the setting up of an inter-ministerial committee with powers to regulate online content and deal with grievances and breach of rules, and clause 16 which is about blocking of online content in case of an emergency. As such a committee was yet to be formed, it did not see any reason to stay clauses 14 and 16 at present, the court said. The HC also did not stay sub-clause (2) of clause 9 which provides for action in case of the contravention of any law in force for the time being.

The petitioners had sought an interim stay on the implementation of the new IT Rules till the court gives its final decision in the matter. Senior counsel Darius Khambata, lawyer for The Leaflet, had argued that the new IT Rules were beyond the rule-making power of the Union government as the "parent Act", that is the Information Technology Act, did not provide for anything seeking to regulate ethics and content of online publishers. On Friday, the HC had asked the Union government what was the need to introduce the new IT Rules, 2021 without superseding the existing IT Rules of 2009.

The Union government's lawyer Additional Solicitor General Anil Singh had defended making code of ethics mandatory, saying the Press Council of India (PCI) also prescribes a code of ethics for journalists. But the judges had pointed out that the PCI's guidelines were in the nature of advisory norms. ASG Singh had also contended that the need to bring in new rules was felt for checking the spread of fake news and illegal content in the digital space. The bench on Saturday also refused the Centre's request to stay the order for a few weeks. It directed the Union government to file a detailed affidavit replying to the issues raised by the petitioners within three weeks. The high court will hear the petitions further on September 27.

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