'Goes beyond substantive law': Bombay HC stays certain provisions of Rule 9 of new IT rules

MUMBAI: In an interim relief to publishers of online content, the Bombay high court on Saturday partially stayed rule 9 of the new Rules of 2021 for Digital media ethics code and intermediary guidelines under the Information Technology Act.
The court observed that the rule “goes beyond the substantive Act" or in other words seeks to regulate something that the IT Act itself does not.
It said the rule 9 prima facie was an intrusion of the rights of the petitioners under Article 19(1) (a) (freedom of speech and expression) of the Constitution.
The bench of Chief Justice Dipankar Datta and Justice Girish Kulkarni pronounced the interim order on two public interest litigation (PIL) that challenged the constitutional validity of the new IT rules.
The HC did not stay rule 16, which empowers "blocking of information (content) in case of emergency" without hearing the person, publisher or intermediary.
“No case is made out to stay Rule 16," the bench said.
The HC said the petitioners had not challenged similar provisions in the earlier 2009 rules under the IT Act.
The rule 9, which is partly stayed, seeks “observation and adherence" by publishers to the code of ethics and norms of conduct for journalists under the Press Council guidelines and cable TV code.
The rules that are now stayed are 9(1), which says, "A publisher shall observe and adhere to such code" and 9(3) which sets out a three-tier structure for dealing with complaints against such publishers.
The three-tier structure comprises level I - self regulation by publishers, level II - self regulation by the self regulating bodies of the publishers and level III - an oversight mechanism by the central government.
However, the HC said it has not stayed rule 9(2) which say that publishers who contravene or violate any other law can be proceeded against under that law.
It also did not delve into rule 14, which provides for action to be taken by an “inter departmental committee" as such committee has not yet been appointed.
The HC granted liberty to both the petitioners to seek relief as and when any need arose regarding Rule 14.
"there is no immediate urgency so far as Rule 14 is concerned as inter=departmental committee is not yet been appointed," the bench said.
On Friday, the bench had raised several questions to the Centre including, “How can protection under substantive law be taken away by a delegated legislation (Rules are delegated legislation, not made by the Parliament)?"
The two PILs, one by the owner of a digital portal and another by media person Nikhil Wagle, said the new rules intended to control "online content" and would have a chilling effect on free speech.
Senior counsel Darius Khambata, appearing for the portal, had said the urgency for stay was even more pronounced since the chilling effect was already being experienced via self-regulation.
While at an earlier hearing he had sought a stay of three rules — 9, 14 and 16, on Friday he sought a stay on at least rule 9 which calls for adherence to Code of Ethics by Publishers.
The central government, represented by additional solicitor general (ASG) Anil Singh, had opposed the plea, saying the rule provides primarily for self-regulation and government oversight, the committee for which is not yet set up.