'Legacy Media Houses Wrongfully Classified As Digital Media' : DNPA Moves Madras High Court Against IT Rules

The Madras High Court on Wednesday issued notice in a plea filed by the Digital News Publishers Association (DNPA) as well as journalist Mukund Padmanabhan, challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and seeking declaration of the same as "ultra vires, void and violative of Articles 14, Article 19(1)(a) and 19(1)(g) of the Constitution of India".Digital News Publishers Association is an organization of online news media which are part of traditional media houses involved in print and TV journalism. According to DNPA, only those platforms, which solely run online publication, come under the ambit of the IT Rules.A Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy heard the submissions put forth by Senior Advocate PS Raman, and proceeded to tag the matter with the writ petition filed by acclaimed Carnatic vocalist TM Krishna. The Court further granted liberty to the Petitioners to approach the High Court in case any coercive action was taken against them under Rules 12, 14 and 16 of the 2021 IT Rules. The DNPA contends that online news portals of "legacy media houses", which run newspapers and TV channels, do not come within the purview of IT Rules. "That by way of the said IT Rules, the Respondent No. 1 has wrongfully and arbitrarily classified legacy media houses involved in television and print media….as part of 'digital media', submits the plea. It is contended that in light of this, Part III of the Rules imposes an "arbitrary, unjustified, undue and unfair oversight into the acts of the Petitioner No.1's member media houses, which opens the door to suppressing freedom of speech and the independence of news media in the country, which has been upheld by the Hon'ble Supreme Court in a catena of judgments", states the DNPA plea The aforementioned submission stems from the alleged wrongful classification of the Petitioner under 'publisher of news and current affairs content' as per Rule 2(1)(t), which is distinct from 'newspaper' as per Rule 2(1)(n). It is stated that the Respondents have failed to appreciate that the Petitioners are legacy media houses. "While 'newspaper' is not governed by the IT Rules 2021, 'publisher of news and current affairs content' is governed by Part III of the IT Rules 2021. This implies that some of the members of Petitioner No. 1 association which are primarily newspaper publishers would not be governed by the IT Rules 2021 if they only published newspapers. But by making available, inter alia, the same content on a digital platform, they ought to be governed by the IT Rules 2021. Therefore, the IT Rules 2021 have created a distinction that is vague and arbitrary, and which has no reasonable or rational nexus with the purported object which it purportedly seeks to achieve". It has further been submitted that the Rules, such as Rule 3(2)(b), Rule 3(1)(d), Rule 4(2) and Rule 4(4) under Part II, seek to curb the freedom of speech and expression, as well as freedom of press by proscribing content on the basis of vague and subjective grounds, and also seek to "usher in an era of surveillance and fear, thereby resulting in self-censorship, which curtails the fundamental rights as envisaged under the Constitution of India". "While at the first level, an individual will constantly remain in fear of facing consequences and thereby not engage in any content that may be close to the prohibited line (while being legal), at the second level, the intermediaries will also be trigger happy to pull down content while keeping a low threshold for any complaints received. Thus, this will lead to self-censorship without the Respondents having to exercise and explicit power to curb such freedom of speech". Stating that adherence to Code of Ethics with the aid of a mechanism established under the three-tier system with powers to adjudicate upon whether or not a publisher has contravened any existing law, the plea submits that the mechanism is outside the scope of the Executive and can only be performed by the judiciary. "That by way of providing the Respondents with the power to act on the basis of adherence to the Code of Ethics, the Rules intend to regulate content on undefined, vague and subjective standards as provided in the Code of Ethics, such as 'half-truths', 'good taste', 'decency', etc. which provide a broad scope for imminent misuse by the Respondents", avers the plea with a reference to the decision in Shreya Singhal wherein the Supreme Court had struck down Section 66A due to the usage of abstract terms. The plea also contends that complying with the Rules would lead to a situation of over-regulation and unnecessary complication of a sector that is already well-regulated and compliant. "There is and cannot be any valid justification or a valid formation of opinion on the part of the Respondents for such...

'Legacy Media Houses Wrongfully Classified As Digital Media' : DNPA Moves Madras High Court Against IT Rules

Radhika Roy

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