Vikram Jeet Singh
Bombay High Court stays OTT Code of Ethics under the new IT Rules
Vikram Jeet Singh and Kalindhi Bhatia
In a significant development in the implementation of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”), the High Court of Bombay (“Court”) on August 14, 2021, issued an interim stay on the operation of Rules 9(1) and 9(3). A copy of the Court’s order passed in Agij Promotion of Nineteenonea Media Pvt. Ltd. Vs. Union of India and Nikhil Mangesg Wagle Vs. Union of India, can be accessed here.
As background, the IT Rules were notified by the Ministry of Electronics and Information Technology (“MEITY”) under the Information Technology Act, 2000 (“IT Act”). Our materials on the IT Rules can be accessed here.
Compliances under the IT Rules apply primarily to two types of entities; online ‘intermediaries’ (including social media intermediaries), and publishers of news and current affairs content and publishers of online curated content (collectively “publishers”).
The petitioners mainly argued that regulating online content publishers is outside the scope of the IT Act - Rules 7, 9, 14 and 16 of the IT Rules go beyond the ambit of the IT Act, which is to provide legal recognition to transactions using electronic data and electronic information. The Petitioner also argued that the IT Rules violated the constitutional rights to freedom of speech and expression and the Supreme Court’s decisions in K.S Puttaswamy v. Union of India (AIR 2017 SC 4161) and Shreya Singhal v. Union of India (AIR 2015 SC 1523).
A. Code of Ethics set aside:
Rule 9(1) of the IT Rules requires publishers to adhere to a ‘Code of Ethics’, which comprises the Norms of Journalistic Conduct of the Press Council of India (“Norms”) and the Programme Code under the Cable Television (Network) Regulation Act 1995 (“Code”). Rule 9(3) of the IT Rules sets out a three-tier grievance redressal mechanism which allows anyone to raise complaints against publishers. It includes an oversight mechanism to be constituted by the Government.
The Court stayed the operation of Rules 9(1) and 9(3), on two grounds.
First, that they imposed an obligation on publishers to observe the Code of Ethics provided under a completely different statutory regime (print journalism and cable TV), alien to the IT Act. The Court noted that Section 87 of the IT Act does not empower the government to impose these compliances upon publishers. The Norms are guidelines framed by the Press Council of India. The sanction of the Norms is moral and not statutory, in its usual journalistic setting. However, the Code of Ethics has placed the Norms to the status of mandatory compliance.
Second, that Rule 9 of the IT Rules prima facie infringed the constitutional guarantee to freedom of speech granted by Article 19(1)(a), by requiring publishers to comply with the Norms.
B. Rules that continue to be in force:
Although challenges were also made against the application of Rules 7, 14 and 16 of the IT Rules, the Court refused to stay their application.
On Rule 7, which states that a violation of the IT Rules by an intermediary would lead to loss of safe harbour protection and the intermediary becoming liable under applicable laws, the Court was not satisfied that the petitioner (in this case) was an intermediary under the IT Act.
On Rule 14, which sets out the constitution and grievance redressal procedure of an inter-departmental committee by the MIB, the Court held that there was no immediate urgency as the Government had not constituted the committee and the oversight mechanism was not effective yet.
On Rule 16, which permits blocking of information in case of an emergency, the Court found it to be traceable to Section 69A(1) of the IT Act, which is line with Article 19(2) of the Constitution that allows placing reasonable restrictions on the freedom of speech.
WHAT THIS MEANS FOR YOU:
The order brings (temporary) relief to online content publishers from the Code of Ethics and the redressal mechanism provided under the IT Rules. The order may also guide other Indian courts where several similar petitions are pending.
Note, that the order does not impact the applicability of the IT Rules to online intermediaries; who will continue to be subject to (separate) due-diligence, content take-down, and grievance redressal requirements.
The Court’s order is temporary, and remains in force until at least September 27, 2021, i.e., the final hearing date for the matter. It would be interesting to see if this ruling is made permanent, and if it is appealed by the Government.
We will keep you updated on any progress.