DigiPub Moves Karnataka High Court Supporting X Corp's Plea Against Take Down Orders, Says 92 Media Houses 'At Mercy' Of Centre

While opposing the Centre's content takedown directives, DigiPub News India Foundation has moved the Karnataka High Court on Friday (July 11) asserting that 92 media houses which are members of the foundation "putting out responsible reporting", are now at the mercy of an officer issuing take down orders. The foundation has moved the high court seeking intervention in X Corp's plea before the high court. Appearing for the foundation–which is a collective of media organisations aiming to represent, amplify and evolve best practices that are independent and upholds the highest standards of journalism–senior advocate Aditya Sondhi submitted before Justice M Nagaprasanna:"A judicial determination of an unlawful act by a duly constituted court of law on the one hand and a cyclostyle form with the hands of the officer to fill in a couple of blanks here and there and direct taking down, directly infringes Article 19(1)(a). I'm before your lordships as a conglomerate of responsible media houses. There can be no demur of the very grievous posts that some times take place. Children related and women related...We are media houses. Whether decency or morality is there in the act or not I'm really not here to argue. Extreme examples do not make the law. 92 media houses putting out responsible reporting are at the mercy of an officer issuing a cyclostyle order". Media/online platforms are directly affected as they create contentArguing that the foundation was set up to agitate "our rights qua free speech", he said that the members were platforms that provide cross section of news and reportage online, adding that the party which is directly affected by such blocking orders is actually them. "X is a platform or intermediary. X per se does not create content. We do, take down orders will affect us directly.The fact that the originator of content has a right, a locus standi, I may say has been recognised by Supreme Court in Shreya Singhal case," he said.He further said that Section 79 IT Act is an exemption adding that it begins with the word exemption. Section 79 of the IT Act exempts an intermediary from liability for any information, data or communication link made by a third party. However, Section 79(3)(b) provides that upon receiving actual knowledge or on being notified by the appropriate Government that any information is being used to commit the unlawful act, the intermediary would be liable if it fails to expeditiously remove access to such information.Govt can't say that since online is standalone it can do as it wishes"The reason I stress this because exemption is to be narrowly/strictly interpreted. If this is really an exemption it cannot become an empowering provision for such far reaching...," he said."Media is media. This nuance of offline versus online is well placed as has been observed. But that said this is not an omnibus license for government to say that online is standalone we can do what we wish," Sondhi emphasized. Referring to 2009 Blocking rules he gave details of the procedure to be followed to issue blocking orders.He thereafter said, "The news media channels are not included; the officer just issues an order to the intermediary and chapter is closed. Originator of content etc is not included (heard)". He further said that action should not be taken in the manner provided under Rule 3 (1) (d), emphasizing that rule cannot transgress the Act and it has to yield to the section.For context Rule 3(1)(d) of 2021 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules provides that an intermediary upon receiving an order by a court or being notified by the Appropriate Government shall not host, store or publish any unlawful information in the interests of sovereignty and integrity of India, security of the State, public order, decency or morality, etc.On the issue of safe harbour for intermediaries Sondhi said:"Safe harbour is not simplicity an insulation but is recognition of free speech right. An officer not palatable to his masters or other reasons sits in his office and says take down that is the chilling effect with the creator kept out milords. Absence of natural justice mechanism in the impugned rules makes it suspect...The absence of all the steps like post decision hearing etc, does it allow the rule to pass the muster of Article 14".As per safe harbour concept, intermediaries are granted immunity from liability of third parties. Section 79(1) of the Act states that notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.He further said that the 2021 Rules are not threadbare and are almost enabling as it uses the word unlawful information as it is understood by the officer. No access to Sahyog portalOn Sahyog portal he said that content creators have no access...

DigiPub Moves Karnataka High Court Supporting X Corp's Plea Against Take Down Orders, Says 92 Media Houses 'At Mercy' Of Centre

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