Madras High Court reiterates stay on some provisions of the Information Technology

Gaurav Bhalla

September 20, 2021

Madras High Court reiterates stay on some provisions of the Information Technology

The Madras High Court (vide its order dated September 16, 2021) has reiterated the stay of Rules 9(1) and 9(3) of the recently notified Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 by the Bombay High Court. The Madras High Court pronounced the referenced order after hearing the clubbed writ petitions filed by Digital News Publishers Association (and other media representatives) as well as the classical vocalist, Mr. T.M. Krishna.

Sub-clause (1) and (3) of Rule 9 of the IT Rules, 2021 are directed towards publishers of news and current affairs content (such as commercial news aggregators, agency and similar entities which publish news online, excluding newspapers and their e-replicas) and publishers of online curated content (for commercial purposes). Under Rule 9(1), such publishers must adhere to the Code of Digital Media Ethics (as annexed to the IT Rules, 2021). Under Rule 9(3), the publishers are required to establish a three-tier grievance redressal mechanism to deal with complaints or grievances from their users/consumers. The first two tiers of this grievance redressal mechanism pertain to self-regulation (viz. by the publisher itself and by a self-regulating body of publishers). On the other hand, the third tier of the grievance redressal mechanism provides that an oversight mechanism may be established by the Central Government.

In this case (before the Madras High Court), the publishers primarily argued that the referred provisions disrupt the independence of the media. In addition, the petitioners voiced concerns against Rule 3 (viz. compliance imposed upon an intermediary to exercise certain due diligence on its platform) and Rule 7 (which provides that on non-compliance to the IT Rules, 2021, an intermediary is liable to lose the immunity or safe harbour protection granted to it in respect of the content posted on its platform by users of the platform and be penalized under extant laws).

In particular, the publishers were aggrieved by the obligation imposed on the intermediary under Rule 3(1)(c) viz. to terminate the access or usage rights of their users for posting content that is in non-compliance with the specifications under Rule 3(1)(b), in particular the content relating to sub-clause (x) (viz. false and harmful content).

The Bombay High Court had previously tagged and heard public interest litigation (PIL) filed by journalist Nikhil Mangesh Wagle and a writ petition filed by the news publication company - AGIJ Promotion of Nineteenonea Media Pvt. Ltd. (and others) against the IT Rules, 2021. By way of an interim order on August 14, 2021, the Hon’ble Court had stayed Rules 9(1) and 9(3) of the IT Rules, 2021.

The Madras High Court took note of the said order (in its interim order) and observed that the Bombay High Court’s order has Pan-India effect, effectively reiterating that the referenced provisions shall stand stayed. While a stay has not been imposed with respect to Rule 3 and 7 of the IT Rules, the Court has stated that these are subject to further orders. The matter has been listed for final hearing on October 27, 2021.

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