Recently released guidelines giving the government power over social media and news portals are being challenged in court. Freny Patel asks experts whether the new rules are a case of overreach

The release of “draconian” rules in the guise of guidelines under the Information Technology Act, 2000, came as a shock to many. These enhance the government’s power to control how the internet is accessed. The fallout of this has led to a slew of lawsuits challenging the government for violating constitutional rights.

When Information Technology Minister Ravi Shankar Prasad announced the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, on 25 February, he said they aimed to empower users of social media against abuses and to put a check on fake news.

But the legal community and the digital world have a more critical view of the rules. Contrary to the government’s claim of wanting a “soft-touch oversight mechanism”, lawyers India Business Law Journal spoke to say the rules give unprecedented powers to the executive to regulate and control social media, streaming platforms, and other digital content providers, including news portals. The oversight mechanism enables ministries to decide what content can be banned should it be deemed to impact the sovereignty and integrity of the country or threaten national security.

The rules are “in violation of the right to privacy and manifestly arbitrary”, says Rahul Narayan, an advocate on record at the Supreme Court. Narayan, who has worked on issues relating to digital rights, privacy and technology law, and intermediary liability, says that these are probably the most stringent regulations in the world.

“If the problem the guidelines was supposed to address was that the intermediaries were too powerful, I don’t think making the government even more powerful is an answer from the consumer point of view,” says Narayan.

Within weeks since the rules were notified, online news organisations such as The Wire, Live Law and Kannada news portal Pratidhvani filed petitions in various high courts, challenging the legal basis of the rules and their applicability to news entities. They claimed that they do not fall under the purview of the rules because they are not intermediaries and the parent legislation, the IT Act, does not govern the news media, which comes under the purview of the Press Council Act.

Senior advocate Nitya Ramakrishnan, representing The Wire, told the Delhi High Court: “We do not say news media is beyond regulations. It has to be done by way of a statute dedicated only for the news media.”

“The basis of notifying the rules are provisions within the IT Act, which do not have any direct bearing and have no correlation whatsoever to the nature and type of control that is sought to be exercised on news and current affairs content,” says Bagmisikha Puhan, an associate partner at TMT Law Practice.

Digital media and news fall within the purview of the Ministry of Information and Broadcasting and not the Ministry of Electronics and Information Technology under the Allocation of Business Rules, 1961. “Clubbing news entities under the new rules may therefore be an overreach by the IT ministry and exceed the scope of the parent legislation,” Jyotsna Jayaram, Bengaluru-based partner and part of the TMT practice group at Trilegal, points out.

Puhan agrees and adds that the Allocation of Business Rules, 1961, was last amended in November 2020 when the powers and jurisdiction to regulate digital/online media was transferred to the Ministry of Information and Broadcasting.

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