We are fact-checkers, not news publishers, so new rules don't apply to us: Alt News to Delhi HC

In its petition before the Delhi High Court, while the fact-checking website says it should be exempted from the Code of Ethics, the court refused to grant a stay on any coercive action taken by the government for non-compliance

Aditi Agrawal
Published: Jun 28, 2021 07:51:22 PM IST
Updated: Jul 14, 2021 11:30:28 AM IST

In a petition filed before the Delhi High Court, Alt News wants the court to declare that it is not a publisher of news and current affairs. 

Are articles published by a fact-checking publication verifying the veracity of publicly available information “news and current affairs content”, as defined under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021? According to fact-checking website Alt News, they’re not. 

In a petition filed before the Delhi High Court, seeking Part III of the Rules, the Digital Media Code of Ethics—that regulates online news publishers and streaming platforms—to be declared unconstitutional and ultra vires (beyond the mandate) of the Information Technology Act, Alt News also wants the court to declare that Alt News is not a publisher of news and current affairs content and should therefore not be mandated to comply with the code. 

Apart from arguing that is not a publisher, Alt News, in the same vein as The Wire, The Quint, The News Minute and Live Law before it, has argued that the Code of Ethics is ultra vires, impinges on freedom of speech and expression, and erodes free media via an adjudicatory mechanism that is headed by the central government. 

Calling the rules “sweeping”, “onerous”, “burdensome”, Alt News’s petition says that they impinge on freedom of speech, are “draconian”, “unjust”, where the central government has the final say on complaints filed against content on a news portal, and has the power to “interfere even in the absence of any complaint(s)”.  

The vacation bench constituting Justices C Hari Shankar and Subramonium Prasad has tagged Alt News’s petition with those of The Wire and The Quint. Senior Advocate Nitya Ramakrishnan, on behalf of all three publications, today had sought a stay on any coercive action by the Ministry of Information and Broadcasting (MIB) for not complying with the code while the petitions were being heard. The bench asked why the stay was not sought from the regular bench. Ramakrishnan replied that the threat of coercive action was brought up only via a June 18 notice from MIB, at which point the court had already broken for vacation. The bench refused to grant a stay, stating that it was not in agreement with her. 

In the earlier cases filed by The Wire and The Quint, the Centre had been directed to file a response by April 16, but it hasn’t filed a response yet. Earlier today, the court directed the Centre (represented by Additional Solicitor Generals Vikramjit Banerjee and Chetan Sharma, and standing counsel for central government in the Delhi High Court Kirtiman Singh) to file a reply before the matter is taken up by the regular bench on August 4. 

Is Alt News a publisher or not? 

Filed by Nirjhari Sinha, director of Pravda Media Foundation, the parent company of Alt News, the petition argues that Alt News is “merely a website” that checks the veracity of information “using various algorithms” and “digital forensic tools”. Alt News “is a fact-checking platform which debunks misinformation circulated on social media platforms as well as that published by mainstream media”. It has argued that since it neither publishes news which may be recent or noteworthy events, or publishes any analysis, it is not a publisher. It compared its service to Press Information Bureau’s PIB Fact Check.

Despite this, as per Alt News, the government, via MIB, is “pressurising” it to comply under the Digital Media Code of Ethics by adhering to the Code of Ethics, appointing a grievance officer, registering with a self-regulating body (tier two of the grievance redressal mechanism) and furnishing all such information to the MIB. 

It is not clear how Alt News is making this argument, especially when it is a founding member of DIGIPUB News India Foundation which represents digital news media organisations. Furthermore, its own methodology for fact-checking explains that apart from using digital tools (such as Google Reverse Image search), it contacts local authorities to debunk rumours, consults subject matter experts where necessary among other steps. Most news publications engage in similar methodology and then some to do reporting and fact-checking.  

In a response to two emails sent by Sinha to the MIB, in an email dated June 9, Kshitij Aggarwal, assistant director (digital media) at MIB, wrote that Alt News would be classified as a publisher of news and current affairs content under the rules. He cited the content published on the Alt News website and on its verified social media accounts which shows that “the published content involves analysis of claims related to recent events, including those of socio-political, economic or cultural nature going viral on digital and/or social media”. The email also cites Alt News’s methodology for fact-checking which, as per the email, involves “selection, research and publishing of content related to recent claims, speeches, tweets, hashtags, etc which may also be of a political nature”. 

In response, on June 11, Sinha wrote to Aggarwal, stating that by the logic that fact-checking entails analysis, “every person or entity, any comment on the internet on socio political themes would fall within the meaning” of the publishers of news and current affairs “because any comment on the internet would be a result of some element of analysis”. “Surely, that could not be the logic behind IT Rules as such an interpretation would lead to an absurd situation,” she wrote. She said the information on grievance redressal mechanism is available on the website to every reader, and that “there is no urgency to press us at this juncture”. 

Free press goes for a toss 

Alt News has argued that government control over digital news portals is a violation of freedom of speech, a right guaranteed to all citizens under Article 19 of the Constitution. It further states that all news publishers, irrespective of medium, are “already vulnerable to a host of civil and criminal liabilities”. It argues that any additional regulatory mechanism, especially for digital news publishers, will cause a chilling effect on their fundamental right to freedom of speech and expression, especially given the recent “proliferation of FIRs against journalists and news publishers”.

Furthermore, the three-tier grievance redressal mechanism, which has been severely criticised by all journalists, human rights organisations and defenders of free speech, impinges on freedom of speech and expression under which content would “inexorably” be assessed by an inter-ministerial committee set up by the central government, even without a complaint. Alt News has also raised an issue with emergency powers that are granted to the joint secretary of MIB to block content “without as much as a hearing”. This is a “parallel and extra-legal adjudicatory mechanism” which is headed by the central government. This, as per Alt News, violates the principle of separation of powers.

Criteria for grievances are too vague, subjective 

Alt News has argued that the government is seeking to regulate content on “vague and highly subjective standards” such as “half-truths”, “good taste” and “decency”. Such vague language, as per Alt News, has been held by the Supreme Court to breach citizens’ freedom of speech and expression in the Shreya Singhal judgment. The 2015 Shreya Singhal judgment struck down Section 66A for stifling free speech through vague language. Using the same logic, the petition argues, the new rules should be struck down as well.

It has further argued that since such subjective and vague criteria like “good taste” and “decency” can be invoked to seek government interference, the rules also violate Article 19(1)(g) of the Constitution as they place unreasonable restrictions on the right to practice the profession and business of online news journalism. Article 19(1)(g) grants all citizens the right “to practise any profession, or to carry on any occupation, trade or business”. 

‘Digital news publishers are news media, not intermediaries or OTT platforms’

Grouping digital news portals with social media and OTT platforms, and distinct from print news media is “unfair” and “irrational”, according to Alt News. There is no rationale for categorising digital news distinctly from newspapers and e-replicas of newspapers (which are exempted from the rules). It further points out that in other “democratic countries” such as the UK and Australia, online news outlets are grouped with print medium and are only subject to self-regulation by a voluntary body of peers, “without any role or space to the government”.

‘Information Technology Act is not supposed to regulate publishers’

The Digital Media Code of Ethics is ultra vires, that is, goes beyond the mandate of the Information Technology Act as it seeks to govern publishers of news and current affairs content, even though the IT Act and the new rules are only meant to regulate intermediaries. In fact, the rules themselves establish intermediaries and publishers as two distinct entities. The petition states that the scope of the IT Act “was restricted to the recognition and enabling of electronic data and transactions” and did not envisage regulating news or opinion.

The provisions under which Intermediary Rules are notified—Section 69A (allows for central government to block content) and Section 79 (safe harbour provision)—only concern themselves with intermediaries, not with publishers. The petition further points out that the previous version of the rules—Information Technology (Intermediary Guidelines) Rules, 2011—did not deal with news publishers either. For Alt News, this means that the central government was thus “aware of the boundaries set out in the IT Act itself”.

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