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Madras High Court has denied staying Rule 7 of IT Rules of 2021 while addressing the apprehension of intermediaries of action being taken against them under Rule 7 of the IT rules 2021 and that it will affect their rights under Article 19 of the Constitution. However, the Bench stayed sub-rules (1) and (3) of Rule 9 of Intermediary Guidelines and Digital Media Ethics Code Rules 2021 (IT Rules 2021) as was earlier also stayed by the Bombay High Court.

The Bench of Chief Justice Sanjib Banerjee and Justice P.D Audikesavalu said that it is not staying the Rule 7 though if any action is taken against the intermediaries, the same will abide by the result of the petitions.

Adv. Rajshekhar Rao appeared for one of the intermediaries and ASGI R. Shankarnarayanan appeared on behalf of the State.

Adv. Rao urged the court that the matter before HC should be disposed of expeditiously being independent of proceedings before the Supreme Court.

However, the court listed the matter to be next heard on October 27.

Rules 9(1) and 9(3) of the IT Rules 2021 required publishers of news on the internet and publishers of online curated content to comply with a Code of Ethics and also prescribed a three-tier grievance redressal mechanism headed by the government. 

Whereas, under Rule 7 of the 2021 Rules, if an intermediary fails to observe any of the rules laid down, it loses protection afforded to it by Section 79 of the Information Technology Act.

On earlier date of hearing Senior Advocate P.S Raman sought the Court’s leave to file a reply to Union’s 120-page affidavit. Therefore the court has directed the same to be filed before the next date. 

Earlier, the IT Ministry (MeITY) has filed an affidavit as regards Part I & 2 of the Rules and Ministry of Information and Broadcasting has filed the affidavit as regards Part 3.

In the affidavit, Centre has also told the court that there are total 19 writ petitions lying before various HCs challenging the IT Rules, 2021, and each emanate out of a unique set of circumstances.

Stressing upon the rationale and justification for implementation of the Rules, the Centre has stated that the 'Rules substantially empower the ordinary users of digital platforms to seek redressal for their grievance and command accountability in the case of infringement of their rights.'

Centre has also said that Article 19 of the Constitution (includes the freedom of speech and expression) are not absolute and are thus subject to restrictions under Article 19 (2) and (6) of the Constitution.
Court has submitted before the court that significant reasons' for enacting the IT Rules included:

1. significant expansion of online intermediary ecosystem;
2. growth of online social media platforms and their influencing capabilities;
3. international developments in social regulation;
4. compelling need to have a framework to deal with messages that have become viral and resulted in riots, mob lynching, other heinous crimes including those concerning the dignity of women and sexual abuse of children;
5. alignment of requirements of the law enforcement agencies and other appropriate government or their agencies;
6. need to refine and modernise the intermediary liability framework.

Centre has justified the implementation stating that ‘it was clear that the regulations that existed prior did not afford adequate protection to women and children in particular.'

Centre has also contended that the Rules are not new but an amendment to the already existing rules (Intermediary Guidelines of 2011) which have been upheld as constitutionally valid by the Supreme Court in Shreya Singhal v. UOI.

Centre has submitted that IT Rules, 2021 the counter stated that under Rule 3 (1)(b) the government does not block any content but that the provision only applies between the intermediary and the user in so far that the intermediary shall inform the user not to publish any content which is specifically prohibited.

The prohibited content is already part of the Intermediary Guidelines 2011, which was upheld by the Supreme Court in Shreya Singhal's case, Centre has stated.

Union has argued that ' a mere reading of the rules' would indicate that the users have not been barred from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating or sharing any information.

It is only that the user has to agree not to share information which is defamatory, obscene, pornographic, paedophilic, invasive of another's privacy, etc., Centre has clarified.

It is here to be noted that the Centre has filed a transfer petition in the Supreme Court seeking transfer of all cases on IT Rules form High Court to Supreme Court.

Case Title: Digital News Publishers Association and Another. Vs. Union of India and Another

Access the Court Order Here