A three-judge Bench of the Supreme Court will soon decide whether to transfer to itself four petitions pending before different High Courts. The petitions before the High Courts challenge the constitutional validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (henceforth, IT Rules). Their transfer is sought by the Union Government.
The Government claims that the case Justice for Rights Foundation v. Union of India, pending before the Supreme Court, involves substantially the same questions of law as the High Court cases. The Justice for Rights Foundation asks for greater regulation of the content hosted by online streaming platforms such as Netflix, Amazon Prime Video and Hotstar. The Government states that if these matters are not heard together, it may result in conflicting directions from the Supreme Court and High Courts.
The transfer petition was first heard by Justices Khanwilkar and Khanna on 9th July, 2020. They tagged it to be heard with the Justice for Rights Foundation case, without discussing the details of either case.
In this post, we explain the basis for the pending challenges to the IT Rules, 2021, and discuss what is likely to happen at the Supreme Court.
How the IT Rules, 2021 Impact OTT Platforms
The IT Rules, 2021 set out separate sets of guidelines for two sets of online entities- first, social media intermediaries (such as Facebook and Twitter) and second, digital news media and online streaming platforms (henceforth, OTT platforms).The Government states that the objective of these rules is to provide internet users with enhanced rights to have their grievances heard by tech companies. The Rules are also meant to make it easier to trace and punish those who disseminate objectionable content on the internet.
Under these Rules, social media intermediaries must follow an extensive internal grievance redressal procedure. They must also publicly disclose how they have handled all reported complaints. Additionally, the Rules require intermediaries to share information of the originator of an objectionable message in the case of serious offences with the State.
Intermediaries who refuse to comply with these requirements stand to lose their “safe harbour” protections under Section 79 of the Information Technology Act, 2010. This loss means that if a case is brought against a user for their objectionable posts on Facebook, Facebook can be held equally responsible for the content.
The Rules also apply to a broad range of digital news media and OTT platforms- irrespective of scale or size of readership. The Rules require that such platforms follow an internal grievance procedure similar to social media intermediaries. The platforms must also report to an oversight body consisting of the heads of different Union Government Ministries. The Rules set out a code of ethics for such platforms to follow. The requirements of this code are broad and general. They have been criticised (by Indian activists and international human rights agencies alike) for mandating self-censorship of the press.
Who Challenged the IT Rules in the High Courts? Why?
Social media intermediaries Twitter and Facebook have made moves to comply with their obligations under the Rules. Whatsapp, however, has challenged the Rules before the Delhi High Court, arguing that the provisions requiring the platform to trace originators of messages breaks end-to-end encryption norms, and breaches privacy rights. Google has also approached the Delhi High Court, challenging its categorisation as a social media intermediary- it claims to be a search engine, and hence, outside the purview of the IT Rules.
The Union Government’s transfer petition does not seek the transfer of cases involving social media intermediaries. The transfer petition seeks the transfer of four cases filed by digital news media and OTT platforms. Three of these are from the Delhi High Court (filed by Foundation for Independent Journalists, the digital news media platform The Quint, and lawyer Sanjay Kumar Singh), and one is from the Kerala High Court (filed by the digital news media platform, LiveLaw).
These petitions challenge the provisions of the Rules that govern digital news media and OTT platforms. The petitioners claim that the IT Rules place arbitrary, vague and unreasonable restrictions on the freedom of the media. This undermines their independence. The petitioners before the Delhi High Court have also argued that the Rules are bad in law, because the Central Government lacks the authority to control digital media under the Information Technology Act, 2000.
The parties before both the Delhi and Kerala High Courts have prayed for interim relief- this means that they want the Courts to stop the Government from taking any coercive actions against them until judgment is passed about the validity of the IT Rules. The Delhi High Court has declined this prayer to its petitioners; the Kerala High Court has granted it.
Challenges for similar reasons are also pending before the Madras High Court (by singer T.M. Krishna and a 13-member collective of news media companies), the Maharashtra High Court (by journalist Nikhil Wagle and legal media platform The Leaflet), and the Karnataka High Court (by Kannada news platform Prathidwani). The Press Trust of India also filed a challenge before the Delhi Court after the transfer plea was made.
Will the SC allow a transfer?
The Supreme Court can transfer a case from any High Court/s to itself, when it is convinced that the questions of law in the High Court case are the same or substantially similar to those in a case pending before the Supreme Court. The Court can order such a transfer either suo moto, or upon the request of the Attorney General, or the parties involved in the cases.
On 9th July, the two-judge Bench of the Supreme Court rejected a plea from the Union Government to place a stay order on the High Courts hearing the cases sought to be transferred- this means that all orders passed by High Courts (such as the aforementioned grant of interim protection to LiveLaw by the Kerala HC) will continue to be in operation until the transfer is approved.
During the 9th July hearing, the advocates for the respondents (i.e.- those challenging the IT Rules at the High Courts) stated that the Justice for Rights Foundation case had been filed before the IT Rules were even enacted. As such, they argued that the subject matter of their suits (i.e. challenges to the validity of the IT Rules) is not the same as that of the case pending before the Supreme Court.
These arguments are likely to be repeated before the three-judge bench. This bench must decide whether the questions of law in both cases bear substantial similarity.