The Hon’ble Kerala High Court on 10th March 2021 issued notice to the Central Government on a writ petition filed by LiveLaw a comprehensive legal news portal challenging the constitutional validity of Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021(hereinafter referred to as “IT Rules, 2021”).
The petitioner asserted that the IT Rules, 2021 so framed by the Centre on February 25, are “arbitrary, vague, disproportionate and unreasonable” and are imposing restrictions on digital news media and social media intermediaries.
Moreover, the Hon’ble single bench restrained the Central Government from taking any intimidating action against LiveLaw under Part III of the IT Rules, 2021 which deals with digital media regulation. The Hon’ble bench also passed the interim order stating “Respondents shall not take any coercive action against petitioners concerning provisions contained in Part 3 of IT Rules. Petitioner is a publisher of law reports and legal literature”.
Part 3 of the IT Rules, 2021, prescribes the appointment of a grievance redress officer, a “code of ethics” and a “self-regulation” mechanism for digital news platforms.
The petitioner LiveLaw News Media Pvt Ltd, publisher of online legal news website www.livelaw.in, correspondingly challenged the IT Rules, 2021 as illegal and violative of Articles13,14, 19(1)(a), 19(1)(g), and Article 21 of the Constitution of India and also ultra vires the parent Act, the Information Technology Act, 2000.
The counsel on behalf of the petitioner presented before the Hon’ble bench that the Information Technology Act, 2000 did not give out any rule-making power on the Central Government to control digital media. The counsel further argued that the governing mechanism under the Rules are hostile, disproportionate, and illogical. Therefore, they cannot be termed as “reasonable restrictions” under Article 19(2) of the Indian Constitution.
Petitioner also pointed out that LiveLaw publishes articles and opinion pieces on legal affairs, and persons who may disagree with such views can use the Rules to file complaints. The Rules are undoing the procedural safeguards ensured by the Hon’ble Supreme Court in the Shreya Singhal judgment for intermediary regulation.
Further, the partitioner highlighted that reasonable restrictions on fundamental rights granted under Article 19 can be only be imposed only through a law enacted by the legislature. The presumption of constitutionality is unenforceable to the executive rules.
Thereafter, Central Government contended that the source of the power of the Rules can be traced to Sections 69A and 69B of the IT Act, 2000. Even if those provisions are not mentioned in the Rules, that by itself will not make them bad in law, as the substantive rule-making power of the authority is not affected by the mere non-mentioning of the source of power.
Hon’ble Justice at this stage observed that there should be an exemption for law reports. The Counsel on behalf of Central Government replied: “that there was no problem with the reporting of the judgments but the publication of the articles needs oversight. There are articles which are contemptuous”. In response to which the Hon’ble Justice replied “The Court will take care of it”.
Subsequently, after hearing to both parties, Hon’ble Justice proceeded to grant interim protection to the petitioner, while issuing the notice. Hon’ble Justice also observed that the representation led by the Chief Editor of LiveLaw, to the Ministry regarding the Rules will need consideration. Momentarily after, The Central Government agreed to consider the representation made.
The plea also takes exception to part 2 of the rules, dealing with tracing the first originator of information on intermediaries like WhatsApp, and private censorship by tech companies, at the cost of penalties. LiveLaw, which has its official account on Twitter and groups to circulate information on WhatsApp, has submitted in the plea that part 2 of the rules will have a “direct chilling effect” on online speech.