The Union has filed four transfer petitions before the Supreme Court to transfer petitions challenging the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘the IT Rules’) before various High Courts.
On July 9th, 2021, Justice A.M. Khanwilkar and Sanjiv Khanna tagged these 4 transfer petitions with a petition previously filed by Justice for Rights Foundation seeking stricter content guidelines for Over-The-Top (OTT) streaming platforms such as Netflix and Amazon.
At this hearing the Union sought to stay the proceedings in the High Courts be halted while the Supreme Court decides on the transfer petitions. The Bench refused this prayer.
Hence, various High Courts continue to hear these challenges and the High Courts of Kerala, Bombay and Madras have issued interim orders barring the government from taking action against non-compliance with the rules.
In this post, we discuss the interim order by the Kerala High Court.
Petitioners argue IT Rules Violate the IT Act and Fundamental Rights
Live Law Media Private Limited, an online legal news platform, filed a petition before the Kerala High Court. They argued that the IT Rules violate the Information Technology Act, 2000, from which they derive their legitimacy. Their petition states that Part III of the IT Rules effectively regulates digital news media. This is an impermissible extension of powers, since the parent Act has no provisions to control digital news media.
The petition also contends that the three-tiered complaints structure enacted by the Rules is arbitrary. This includes self-regulation by the agency, self-regulation by a joint body of publishers, and oversight by the Union. It effectively makes the Executive both the complainant and the judge in relation to digital news media outlets. The petitioners claim the Rules violate the principle of separation of powers and violate rights under Articles 14, 19 and 21 of the Constitution.
Kerala HC Orders Stay on the IT Rules
The Kerala High Court became the first High Court to grant interim relief against the IT Rules. On March 13th 2021, Justice PV Asha ordered that the Union cannot take coercive action against anyone for non-compliance with the IT Rules.
Interim relief is granted when the Court is convinced that irreparable harm will be done to the petitioner without relief. Even though the High Court’s order is brief, it is clear that the High Court believes that the injury the IT Rules cause to digital media platforms is grave