The largest news agency in the country, the Press Trust of India (PTI), has challenged the constitutional validity of Part III of the Information Technology (Intermediary Guidelines and
Digital Media Ethics Code) Rules, 2021, which seek to oversee regulation of digital news media publishers. PTI has argued that the Code of Ethics is “draconian” and that the Rules “usher in an era of surveillance and fear”, which will result in “self-censorship” and violation of fundamental rights.
It has also stated that Part II of the Rules, which govern intermediaries, are “antithetical to fundamental rights”. Arguing that they should be stayed, PTI has said the Rules are only meant to be “a weapon for the Executive or the State to enter and directly control the content of online digital news portal”. Filed on behalf of PTI’s Chief Administrative Officer Mohini Ranjan Mishra, the lawsuit echoes other similar lawsuits as it calls out “vague conditions” such as “good taste”, “decency”, prohibition of “half-truths” mentioned in the Code of Ethics.
Although PTI’s petition has been filed by Mishra, it makes it clear that its editor-in-chief and CEO, Vijay Joshi, is involved in the matter.
The petition clarifies that it is challenging the Rules only as far as they apply to news publishers, and not to OTT platforms or intermediaries.
This is the tenth lawsuit by a news organisation against the Digital Media Code of Ethics and the second by a legacy media organisation. The Digital News Publishers Association (DNPA), whose members include the digital arms of legacy publishers and news channels such as the Times Group, India Today Group, NDTV and others, had earlier moved the Madras High Court against the Code. However, unlike PTI and the other seven lawsuits, DNPA’s has also argued that legacy media houses, which run newspapers and TV channels, are not digital media and should not be covered by the Rules. PTI’s board of directors, chaired by Anand Bazar Patrika’s Aveek Kumar Sarkar, also has representation from The Times Group, HT Media Ltd, Express Group, The Hindu, Jagran Prakashan Ltd, Deccan Herald, Bombay Samachar, Malayala Manorama and others. PTI is described as a “non-profit sharing cooperative owned by the country’s newspapers”. Lay readers have access to a small section of its website but the agency earns revenue through subscriptions offered to newspapers, news channels, and other news organisations.
Wasim Beg, partner at L&L Partners that is representing PTI, told Forbes India that PTI’s lawsuit differs from DNPA’s as it argues, amongst other things, that digital media, as a concept, has not been defined under the IT. “If the parent act has not defined digital media, the delegated legislation can’t look to govern it,” he said.
It is not clear if PTI also received a notice from MIB on June 18 to furnish information by June 23 but Beg said, “Given the unconstitutional nature of the Rules, we decided that we would challenge them straightaway.” Beg, along with Managing Associate Swarnendu Chatterjee, has been working on the lawsuit for two weeks.
Says Chatterjee: “Whether the Rules enacted in pursuance of the Act can cover within its expanse the ‘digital media’ or if the same amount to going beyond the scope of the Act should definitely be clarified by the courts. This is why we see a plethora of petitions being filed all over the country.”
Journalist Nikhil Wagle’s petition against the entirety of the Rules will be taken up by the Bombay High Court today. Online digital publication, The Leaflet, which focusses on legal news, too has moved the Bombay High Court against the Rules. In all cases, notices have been issued to the central government. It is only in Live Law’s lawsuit that the Kerala High Court granted it interim protection from any coercive action. In all other lawsuits, no court granted any stay.
The Central Government has, meanwhile, filed a transfer petition to transfer all these cases to the Supreme Court.
The Delhi High Court refuses to grant interim protection
Earlier today, a Delhi High Court special bench of Justice DN Patel and Justice JR Midha refused to grant PTI interim protection against coercive action by the state, but issued notice to the Ministry of Electronics and Information Technology (MeitY), and Ministry of Information and Broadcasting (MIB). Advocate NB Joshi, on behalf of PTI, had argued to not have any coercive action be taken against the news agency for not being a part of a self-regulatory body. He argued that such a body must be industry-wide. Joshi represented the DNPA in the Madras High Court.
The division bench of Chief Justice DN Patel and Justice Jyoti Singh also refused to grant any interim protection to The Wire, The Quint, The News Minute and Alt News from any coercive action taken by the central government and instead adjourned the cases to August 20.
The bench also directed the government to file their affidavit by then. Senior Advocate Nitya Ramakrishnan pointed out that the government has not filed a reply yet. This reply was due in April.
Ramakrishnan repeatedly asked for protection from adverse actions pointed out that “heavens will not fall if they [central government] wait” for the cases to be resolved first before sending notices to publishers. Justice Patel said the court would grant protection next time.
Lawyers for the government, Chetan Sharma, Kirtiman Singh, and Vikramjit Banerjee submitted that the transfer petition in the Supreme Court have been preferred. Sharma submitted that 1,000 digital publishers have already furnished their information to MIB.
For those in the back, intermediary ≠ publisher, publishers not within the IT Act
Like its digital brethren, PTI has also pointed out that the definition of “digital media” under the Rules makes it clear that an “intermediary” (such as Airtel, RazorPay, Cloudflare, Google, Facebook, etc.) is mutually exclusive from a “publisher”.
PTI has argued that while any news and current affairs content, made available over internet and computer networks, is covered by the Rules, any such content that is published in a physical newspaper, and in its exact replica online edition, is not. However, none of these definitions—“news and current affairs content”, “newspaper”, “publisher of news and current affairs content”—are given in the Rules’ parent legislation, the Information Technology Act.
PTI, like others before it, has argued that Part III is ultra vires (beyond the mandate of the law) of the IT Act and does not recognise digital news media as a separate category of entities. It has argued that the Rules seek to “diversify and amplify the limited reading beyond all possible recognition to allow impermissible state dictation and interference with the digital media and online publishers of news and current affairs”. The news agency has also said the enabling provision of the IT Rules is only related to intermediaries.
Distinction between digital and print publishers is artificial
PTI has argued that the distinction between print and online news publishers is artificially and violative of Article 14 of the Constitution as per which equals cannot be treated unequally. It has also argued that granting the executive the power to “virtually dictate” the content of news portals will violate right to freedom of speech and expression (under Article 19). It also challenges a clarification that the central government issued on June 10 as per which online media sometimes report incidents differently from print media. PTI has called this a “presumption”.
How can government adjudicate news content?
PTI has argued that the three-tier grievance redressal mechanism, which is headed by an inter-ministerial committee which has also been granted emergency blocking powers, impinges on the right to freedom of speech and expression as it will “inexorably” lead to adjudication of news by the executive. Moreover, through emergency blocking powers granted to the central government under Rule 16, the publishers are not even given an opportunity of being heard, thereby “vitiate[ing] the principles of natural justice”. It points out that Rule 16 has its origins in Section 69A(2) of the IT Act which allows the central government to issue blocking orders only against intermediaries but in the new Rules, the government has “travelled beyond the scope and mandate of Section 69A(2)”. In its June 10 notification, the MIB reiterated its February 27 claim that the provision to issue blocking orders under Rule 16 is satisfied by Section 69A blocking rules.
PTI, like Alt News, before it, has argued that these adjudicatory mechanisms are “manifestly unjust and arbitrary” and “a parallel and extralegal adjudicatory mechanism” that violates the principle of separation of powers. PTI has called the self-regulatory mechanism (level 2) an “eye wash” as publishers of news will be subjected to “government diktat in addition to normal civil and criminal liabilities” at every stage. It has argued that allowing the State to regulate news is “against public interest”.
Furnishing information of accounts with intermediaries to the MIB leads to surveillance of online activity, PTI to court
TI has also submitted that Rule 5—which mandates all intermediaries to inform their users who are publishers to furnish details of their accounts to the MIB—read with Rule 18—as per which a publisher (both news publishers and streaming platforms) must furnish information to the MIB—is a way for the central government to get access to the list of subscribers and users of a publisher. In this way, PTI argues, the government is “effectively seeking circumvention of industry standard encryption tools and creating a backdoor entry for themselves to monitor online activity of users”. It has also argued that this violates right to privacy as well.
Forbes Indiahad earlier reported that these two Rules mean that digital publishers not only have to turn over names of their Twitter handles and Facebook pages, but also details of their telecom service provider, cloud service provider, email service provider, payment service provider, hosting service provider, and many others amongst the litany of intermediaries that make a website. Nikhil Narendran, partner at Trilegal, had called this “excessive” and a “symptom of the government trying to exert excessive control over free speech itself”. For Sneha Jain, partner at Saikrishna & Associates, it is clear that the government want to control all form of dissemination.
This also poses a massive cybersecurity risk as it will create a single database within the MIB that will lay bare the entire technical infrastructure of all digital news publishers in the country.
PTI has also said these Rules were brought via a “side door” without any debate or consultation with key stakeholders. It has called the June 10 clarification a “rejection of the representations” made by members of the press and digital media. “It is an abuse of plenary powers enjoyed by the executive with the clear intent of choking the media, which is an anti-theses to the principles of democracy,” PTI has argued in its petition.
Part II gives private intermediaries ‘excessive power’ in shaping free speech
PTI has also argued that Part II of the Rules, under which entities such as Jio, Facebook, Twitter, Google, etc. are regulated is “antithetical to fundamental rights” and vests “private intermediaries with excessive powers in shaping the disclosure of free speech in the country”. According to PTI, the obligatory grievance redressal mechanism that all intermediaries must have, and the traceability requirement (that only social media intermediaries primarily in the business of messaging with more than 50 lakh users must implement) will lead to censorship at two levels—first, individuals will always fear consequences and thus restrain from posting any content that may not toe the line despite being legal, and second, intermediaries will lower the threshold for complaints received and be “trigger happy” when it comes to pulling down content.
It has also argued that Rule 7—as per which intermediaries will lose immunity from liability for third party content on non-compliance with Rules—will have a “chilling effect of the intermediaries” on free speech as they will be over-compliant.Update (July 8, 10:37 am): Added paragraph beginning "PTI's board of directors ...". Updated article to reflect that this is the tenth such petition, after taking into account The Leaflet's petition in Bombay High Court. Correction: PTI’s Chief Administrative Officer was incorrectly named in the previous version of the article. His name is Mohini Ranjan Mishra, not Madhusudan Mishra as was previously reported. The error is regretted.