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The Madras High Court has restricted the Central Government from taking any coercive action against digital media organizations under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 till January 25, 2022 without the Court's permission.

The injunction was given by the Bench of Acting Chief Justice Munishwar Nath Bhandari and Justice PD Audikesavalu on a petition filed by the Indian Broadcasters and Digital Media Foundation (IBDF).

During the hearing of Foundation's plea challenging the 2021 Rules, the Foundation had alleged that the union government was initiating penal action as per the provisions of the new Rules, even though the Bombay High Court had granted an interim stay on the Rule 9(1) and Rule 9(3) a few months ago.

Though the Court granted the interim relief, it expressed its reservations about the Bombay High Court order stating that rules cannot be nullified without examining the constitutional validity since there is a presumption of constitutionality when the vires of a legislation is challenged.

The matter will now be heard again on January 25, as upon the request of Assistant Solicitor General of India, the bench granted four weeks' time to the Centre to file its counter affidavit in the matter.

IBDF's challenge

In its plea, the IBDF has challenged the vires of Rules 8-19 under Part-III [Code Of Ethics And Procedure And Safeguards In Relation To Digital Media] of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The Foundation, which is the apex body of national and regional television channels and also has online/digital streaming platforms (OTT platforms) as its members, has contended that these Rules go beyond the restrictive ambit of the grounds mentioned in Article 19(2) and more particularly, the Statement of Objects & Reasons of the IT Act, 2000 (the parent Act).

IBDF has raised the argument that Parent Act's 'Statement of Objects & Reasons' clearly demonstrates that the focus and subject of the entire enactment is on – "Electronic Commerce" ("e-commerce") and not for dealing with the content of any program.

Primarily, the IBDF has contended that the Inter-Departmental Committee in three-tier complaint redressal mechanism, which new rules provide to supervise digital OTT Platforms and the Oversight Committee constituted only of executive members is against the rule of separation of powers and violative of principles of natural justice.

Rule 9(1) (3) of the new Rules provide a 3-tier structure headed by the government that has to be adhered to by all publishers for grievance redressal, which includes-

Level I: Self-Regulation by the publishers

Level II: Self-regulation by the self-regulating bodies of the publishers

Level III: Oversight mechanism by the Central Government

The Foundation has also averred that the central government does not have the power to regulate OTT Platforms, and no provision in the Parent Act empowers the Government to regulate the dissemination of content on the internet.

The IBDF has pointed out that Section 87(2)(zg) of the Parent Act applies only to intermediaries and does not empower rule-making powers with regards to OTT Platforms. In its plea, it has stated that it is evident from Rule 2(1)(i) of the 2021 Rules that 'publishers of online curated content' are not an "intermediary" as envisaged under the IT Act or even the IT Rule."

To question the rule-making power to the central, the IBDF has relied upon Section 87(1) of the Parent Act which grants rule-making power to the central government to carry out provisions of the Act.

IBDF has contended that impugned Rules which regulate and impose restrictions on the exercise of free speech by publishers of online curated content do not fall within the ambit of the "general rulemaking power" within the four corners of the Act.

The Foundation has also asserted that the Ministry of Electronics and Information Technology (MEITY) is not empowered to curate online or digital media in the aftermath of the 2020 notification that entrusts such power to the Ministry of Information & Broadcasting.

Accordingly, the IBDF has contended that Rules are unreasonable, disproportionate, manifestly arbitrary, and violate Articles 19(2), 19(6) and 14 of the Constitution.

This is not the first time the rules have been challenged before a court. In its affidavit before the Madras High Court in September 2021, the Centre had told that there are total of 19 writ petitions lying before various HCs challenging the IT Rules, 2021, including Delhi, Bomaby etc. and each emanates out of a unique set of circumstances.

The Centre has also filed a transfer petition in the Supreme Court seeking transfer of all cases on IT Rules from various high courts to the Apex Court.

Cause Title: Indian Broadcasting & Digital Foundation v. Ministry of Electronics and Information Technology & Ors