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IT Rules 2021 Deter Fake News; No Chilling Effect On Free Speech : Centre Tells Delhi High Court

Akshita Saxena
31 Aug 2021 5:22 PM GMT
IT Rules 2021 Deter Fake News; No Chilling Effect On Free Speech : Centre Tells Delhi High Court
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In an affidavit filed before the Delhi High Court, the Central Government has stated that the IT Rules 2021, notified earlier this year for regulation of online news and social media platforms, do not muffle the right to free speech in the country. It claims that the legislative intent behind the Rules is to deter fake news, bring about self-regulation clubbed with a...

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In an affidavit filed before the Delhi High Court, the Central Government has stated that the IT Rules 2021, notified earlier this year for regulation of online news and social media platforms, do not muffle the right to free speech in the country.

It claims that the legislative intent behind the Rules is to deter fake news, bring about self-regulation clubbed with a "co-regulatory" mechanism for grievance redressal of the general public and promotion of the right to information.

The Centre has denied the claims that the Rules have been introduced for pre-censorship/ surveillance. It states that the impugned Rules do not contain any provision for monitoring of content of the digital media publishers by the Government or any other body. Rather, it provides an institutional framework to deal with publicly published content, based on public complaints.

It highlights that the entire grievance redressal procedure, which has been assailed before various Courts in the country, is only civil in nature, and any decision regarding violation of the Code of Ethics does not lead to any criminal punishment.

The development comes by way of a counter affidavit filed by the Central Government in a batch of pleas challenging the 2021 Rules before the Delhi High Court. These pleas have been filed by digital media houses 'The Quint', 'The Wire', 'Alt News' and news agency 'PTI'.

The affidavit, running over 150 pages, has been filed though Deputy Secretary of the IT Ministry through Advocate Kirtiman Singh.

It is urged therein that the pleas challenging the maintainability of the IT Rules, 2021 in terms of the IT Act, 2000 and Article 19 of Constitutions of India are fallacious and liable to be dismissed, for the following reasons:

Grievance redressal mechanism does not have a chilling effect on free speech

The Centre claims that the establishment of a grievance redressal mechanism for digital news publishers does not intrude into the freedom of speech and expression of the digital news publishers, but only provides a mechanism of accountability.

It is submitted that provisions related to the grievance redressal mechanism are in consonance with the spirit of the public's right to know under the right to free speech and expression. The affidavit states,

"The Rules do not provide for any pre-censorship for content. Therefore, news content generally having a short shelf-life, is not impacted by the Rules, which establish a three-tier grievance redressal mechanism for redressal of grievances related to the violation of Code of Ethics."

The affidavit further mentions that the decision on whether a particular content is violative of the Code of Ethics is a deliberative one involving the publisher, their representative self-regulating bodies, and the Government.

It emphasizes that the publisher has the opportunity to express and defend itself at all the three levels of the grievance redressal mechanism.

"The Rules establish a soft-touch co-regulatory mechanism for redressal of public grievances related to the alleged violation of the Code of Ethics, protect the publishers on digital media from criminal proceedings, and therefore do not lead to any chilling effect on the freedom of speech of the publishers."

It states that the Petitioners have not produced any evidence before the Government, showing that the Rules have led to a large number of grievances being filed and subsequently appealed by the audience.

In fact, it claims that there has not been any significant change in the production of content by news publishers due to the IT Rules. It adds,

"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."

Self-Regulation & Oversight Mechanism

The IT Rules provide for a three-tier content regulation mechanism, which includes: Level I - Self-regulation by the applicable entity; Level II — Self-regulation by the self-regulating bodies of the applicable entities; and Level III - Oversight mechanism by the Central Government.

With regard to Level I of the grievance redressal mechanism, it is stated that the same requires a digital publisher to redress the grievances relating to the Code of Ethics within a certain time frame.

"Such a mechanism is in line with the judgement of the Hon'ble Supreme Court in Common Cause vs Union of India, and is appropriate from the viewpoint of providing a forum for citizens who may flag concerns related to the content published, and hence ensure speedy clarification, up dation or correction by the publisher itself," the affidavit states.

So far as Level-II of the grievance redressal framework is concerned, it is submitted that self-regulation by associations of news publishers is already in vogue in respect of the television news media. Thus, the requirement of the Level II under the IT Rules, 2021 is only an extension of an existing institutional practice.

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.

In this backdrop it is contended,

"The IMC mechanism has stood the test of time. The concept of Inter Departmental Committee (IDC) is similar and does not lead to any interference or control of the central Government in the functioning of the digital media publishers.

Furthermore, the oversight mechanism at Level III is visualized as a residual level, insofar as the grievances which do not get redressed at the first and second levels would go to the oversight mechanism."

Furthermore, the Centre states that after the consideration by the multimember IDC, any direction can only be issued with the approval of the Secretary, Ministry of Information and Broadcasting.

Therefore, it is submitted that the oversight mechanism has a dual safeguard- the IDC, as well as the senior most officer of the Ministry i.e. Secretary, Ministry of Information & Broadcasting to prevent any arbitrary decision-making.

Free speech

The Centre claims that regulation of digital media under Part III of the IT Rules is well within the scope of the IT Act which provides for regulation of media content in the electronic form, including news and current affairs content and online curated content.

In this regard, it cites section 11, 67, 67A, 67B, 69, 69A, 69B, 79(3)(b) of the Act.

The affidavit states that, the Rules are intended to ensure accountability of such entities towards the audience they serve. It reads:

"The digital media ecosystem involves publishers of content on one hand while the audience (including subscribers of digital media publishers) on the other, with the State having the positive responsibility to ensure fairness of the dealings between these stakeholders.

Since correct information lies at the heart of the 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 is one of the misuse of electronic records which may lead to violation of other fundamental rights of the audience, e.g. 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 ofpublic order, etc."

The affidavit adds,

"The citizens, while being the audience for the information published by the professional publishers of news and current affairs content, cannot be treated as passive consumers without any recourse of participation in the process of accountability with respect to the content being published."

Thus, it is the case of the Central Government that the IT Rules seek to prevent the misuse of the freedom of press by empowering the audience with a mechanism to raise their grievances related to the content being published by the digital news publishers.

It claims that the said grievance redressal mechanism emphasises on the self-regulatory architecture for digital news publishers, and is therefore not only within the ambit of the IT Act, but also fulfils the object sought to be achieved by the Act.

Necessity of IT Rules 2021

The affidavit states that in the past, there have been various instances of fake news spread through digital media platforms.

Reference is made to the case of Nilesh Navalakha v. Union of India, where the Bombay High Court had opined that the norms of journalistic conduct framed by the PCI for the print media ought to be extended to cover the electronic media till such time appropriate guidelines are framed for the electronic media by the appropriate authority.

In this backdrop it is stated that the IT Rules merely extends the Journalistic Norms/ Code of Ethics, already applicable to traditional media, to the digital media (without extending the entire Press Council Act or the Cable Television Networks (Regulation) Act).

The affidavit states,

"Similar harmony between various laws relating to a particular field, regulation of news and current affairs content in this case, already exists in the case of multiple other subject matters, and in no way can be interpreted to go beyond the boundaries of the parent legislation. Furthermore, it is also submitted that in the absence of guidelines for digital media, the existing set of guidelines, which have been time-tested with respect to print and electronic media, are apt to be applicable to news and current affairs content on digital media as well."

It adds,

"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."

Intelligible differentia between traditional media and digital media

Through the affidavit, the Centre claims that the legislative intent behind the IT Act includes recognition and institutionalisation of media content in the digital space, and the scope of the Act extends to media content used for electronic communication.

It submits that there exists a "substantial intelligible differentia" between the traditional media (print and TV) and digital media, and any contention that digital news publishers are similar to newspapers is flawed and superfluous.

"Based on the intelligible differentia between the speech on digital media and traditional media, it is submitted that a separate institutional mechanism for dealing with media content on the internet is not violative of Article 14 of the Constitution."

Registration of Digital platforms

Earlier, no prior registration or licensing was mandatory for operating a digital media house. Under the IT Rules, 2021, publishers are required to inform the Ministry about the details of their entity by furnishing information to the Ministry for the purpose of future communication and coordination.

The Centre claims that such a provision not only ensures identification of the entities which publish news on digital media, but also enables the Ministry to transfer the grievances received from the general public to the concerned publisher.

It is further clarified that there is no requirement for prior registration of digital media publishers with the Ministry. Rule 18 instead provides for furnishing of certain information by the digital media publishers to the Ministry.

Related News

It is significant to note that the Bombay High Court has stayed Rules 9(1) and 9(3) of the IT Rules, which mandate that digital news media and online publishers should adhere to the "Code of Ethics" prescribed by the Rules.

The High Court prima facie observed that the said provisions infringe the fundamental right to freedom of speech under Article 19(1)(a) and also go against the substantive provisions of the Information Technology Act 2002.

The interim order was passed in the petitions filed by AGIJ Promotion Of Nineteenonea Media Pvt. Ltd , the company that runs the legal news portal 'The Leaflet' and journalist Nikhil Wagle.

Click Here To Read/ Download Affidavit


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