Madras HC agrees to Media’s apprehension of curtailment of their independence under IT Rules; says substantial basis to assert that Article 19(1)(a) may be infringed in how Rules may be coercively applied to intermediaries

Read Judgment: Digital News Publishers Association vs. Union of India

Pankaj Bajpai

Chennai, September 17, 2021: The Madras High Court has observed that though Section 79 of the Information Technology Act, 2000 grants exemption from liability to intermediaries in certain cases, the same will not apply if the intermediary is found not to have observed “guidelines as the Central Government may prescribe in this behalf”.

The Division Bench of Chief Justice Sanjib Banerjee and Justice P.D Audikesavalu observed that the Supreme Court in Shreya Singhal v. Union of India, held that unlawful acts beyond what is laid down in Article 19(2) of the Constitution “obviously cannot form any part of Section 79” of the Act.

The observation came to be passed pursuant to a challenge made to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on ground of being ultra vires to Articles 14 & 19 of the Constitution.

The petitioners are wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation.

The High Court noted that prima facie, there is substance in the petitioners’ grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there.

Therefore, there is substantial basis to the petitioners’ assertion that Article 19(1)(a) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries, added the Bench.

The High Court noted that though the petitions have not been brought by hosts of website platforms, social media platforms on the website are used by one and sundry and there is a genuine apprehension, as the petitioners’ suggest that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen.

Accordingly, the Court opined that if there is any action taken in terms of Rule 3 of the Information Technology Rules, 2021 r/w Rule 7 thereof during the interregnum, it will abide by the result of the petitions and further orders.