KARNATIK MUSIC VOCALIST TM KRISHNA CHALLENGES THE IT RULES, 2021 BEFORE MADRAS HIGH COURT

Karnatik music vocalist TM Krishna has filed a petition before the Madras High Court challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021/ Impugned Rules”) seeking a declaration that the IT Rules, 2021 is ultra vires both the Constitution of India and the parent legislation i.e. the Information Technology Act, 2000 and further seeking an interim stay of the IT Rules, 2021 pending disposal of this writ petition. Read our coverage on the IT Rules, 2021 here.

The Madras High Court on June 10, 2021 issued notice to the Union Government in the said petition.

The IT Rules, 2021 seek to increase the government control and regulation over social media intermediaries and the content that is posted on such intermediaries.. It also seeks to bring OTT platforms and digital news media platforms under the purview of the Information Technology Act, 2000.

The Rules have been bifurcated into three parts namely:

The  Ramon Magsaysay Award winner musician raised the following grounds in his affidavit:

With respect to Part III of the IT Rules, 2021 which regulate “publishers of news and current affairs content” and “publishers of online curated content” by imposing on them a “Code of Ethics”, the petitioner submits that Part III would curtail the freedom of speech and expression citing that the Code of Ethics is vague and unclear and directs publishers of online content to conform to a set of guidelines that stand outside the constitutional scheme. He further contends:

• The processes instilled by Part III of the Impugned Rules create a culture of executive oversight of online speech that is wholly inimical to the right to freedom of expression. The rules establish vague responsibilities on producers of online curated content that will only inevitably lead to a chilling of the creative process. Independent creators who are keen to stretch the boundaries of cultural and social acceptance will find themselves thwarted by a law that sanctions arbitrary ministerial supervision. The Petitioner submitted that in granting the Union executive the power to determine whether an expression violates the law the Rules are in breach of the basic values that underpin free speech. Further that this role under India’s constitutional scheme ought only to be performed by an independent judicial body. Indeed, the Impugned Rules grants no such room for autonomous oversight.
• There can be little doubt that Article 19(1)(a) of the Constitution doesn’t provide a license for hate speech. But any law that seeks to forbid hate speech of any kind ought to be clear and precise. In the absence of clarity, the inevitable result is that publishers will block not only speech that is illegitimate but also perfectly acceptable speech that seeks to stretch the boundaries of social, religious and cultural constructs. The Petitioner contended that as someone interested in exploring the boundaries of Karnatic music and in taking the art form beyond its existing, narrow social confines, the endeavour of his art is to ask difficult questions and that his apprehension today was that the work he produces in trying to reshape art and in dissenting from the conventional mores of society will fall foul of the Code of Ethics contained in the Impugned Rules. He submits, that indeed, publishers of online curated content, facing the threat of sanctions imposed by Part III of the rules, are likely to err on the side of caution.
• the Impugned Rules, which are vague and indeterminate, will thwart artists from raising difficult questions against existing aesthetic, gender and caste hierarchies in Karnatic music, and will thwart dissenters who question prevailing cultural mores. A reading of the Code of Ethics contained in the Impugned Rules makes it impossible to glean what will be considered by the Union government as acceptable speech in the online world. In any event, it is submitted that determining what is acceptable isn’t the sole prerogative of the government. It is a role that ought to be fashioned in accordance with the constitutional scheme, which the Rules manifestly fail to do.
• the Impugned Rules, are also ultra vires the IT Act 2000. The legislation simply does not contemplate regulation of digital news media and publishers of online curated content.

With respect to Part II of the IT Rules, 2021 (which regulate social media intermediaries) of the Rules violates his rights as a user of social media services and Part III(which regulate digital news media and OTT platforms) are in breach of his rights as a creator of online content.

The petitioner thus argues that the IT Rules, 2021:

1. Violate the right to free speech guaranteed under Article 19(1)(a) of the Constitution– In compelling producers of online curated content to conform to a set of nebulous guidelines termed as a “Code of Ethics,” Part III of the Impugned Rules imposes illegitimate restrictions on the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution. It is likely to create a chilling effect on speech, where creators of content will self-censor themselves and produce art that is acceptable to the state, rather than art which, otherwise legitimate, pushes the boundaries of societal, religious, political, and cultural norms. it is impossible to understand what might be considered by the government as acceptable speech in the online world. As a result, musicians will be forced into creating art under an atmosphere of state oversight.

The risk of over-censorship is further borne from the fact that Part II of the impugned Rules fail to comply with principles of natural justice and due process. Rules 3(1)(d) and 3(2)(b) fail to provide adequate notice and opportunity to be heard to the person aggrieved by such action or the original content creator, and do not provide for any appeal against the interim and/or final decision of an intermediary disabling access to their content under Rule 3(2). Thus, artists will be forced to rely on the discretion of the intermediaries and will be subject to heckler’s veto, where a targeted ideological attack to one’s creation can result in its takedown. In fact, the intermediary also cannot appeal against, or even engage with, a government order seeking take down of certain content under the broad heads of Rule 3(1)(d), virtually permitting the executive branch to have unbridled discretion in taking a suo motu decision to take down content that it deems to affect decency or morality, defamatory etc. and risks affecting speech that is politically sensitive or in the nature of advocacy or criticism.

Rule 7 lays down harsh and disproportionate punishment on intermediaries, including loss of safe harbour protection under Section 79 of the IT Act 2000 and potential criminal prosecution, for failure to comply with the Rules. There is no gradation of penalties for non-compliance with the Rules. Nullifying the immunity of intermediaries makes them personally liable for content posted online and will incentivise intermediaries to zealously disable and remove even legitimate speech, which might be seen as offensive or somehow displeasing to the government or other powerful forces in society. It would, in effect, result in snuffing out dissenting and contrarian voices under pressure wielded by majoritarian groups.

2. Violate Article 19(1)(g) and they cannot be justified as a reasonable restriction under Article 19(6) : the right to practise any profession, or to carry on any occupation, trade or business, guaranteed by Article 19(1)(g) of the Constitution includes the rights of artists and musicians to ply their trade. The Impugned Rules strikes at this right by imposing onerous and irrational obligations on intermediaries. The rules virtually compel social media corporations to alter the technical architecture of their platforms. In doing so, the rights of individuals, including the Petitioner’s right, to utilise these platforms in furtherance of the right to freedom to trade and business stands affected. The right under Article 19(1)(g) can only be limited by reasonable restrictions under Article 19(6), In the present case, the Impugned Rules are grossly disproportionate and impinge deeply on fundamental rights.

3. Violate the fundamental right to privacy under Article 21 of the Constitution: Rule 4(2) requires significant social media intermediaries to enable the identification of the “first originator” of information on its computer resource. This means that significant social media intermediaries are required to alter their existing infrastructure to “fingerprint” each message, in the process defeating end-to-end encryption of users’ messages. By enabling traceability, Rule 4(2) also virtually ends anonymity on the internet, a right that is otherwise an intrinsic facet of privacy. While Rule 4(2) is meant to apply only to a specific range of cases to investigate the crimes that may be committed by a minuscule minority, in order to implement it, significant social media intermediaries will have to change their technical infrastructure for every user, thus compromising the privacy of every user. This is so because intermediaries will need to establish a capacity to identify the first originator of information of a message as well as the first originator of a message within the territory of India, thus exposing the entire chain of communication to surveillance. Compromising the rights of every citizen to privacy in order to effectively prosecute crimes committed by a few is per se disproportionate, as it places on the entire citizenry a presumption of criminality.

4. Violate Article 14 of the Constitution

• Manifest Arbitrariness: That a manifestly arbitrary law, in whatever form made, violates Article 14 is today well­ established.
• Excessive Delegation: delegation of a core legislative function renders a statute or rules unconstitutional, and that a legislature cannot delegate its essential legislative function.

5. The IT Rules, 2021 are ultra vires the IT Act 2000: The Impugned Rules use the safe harbour provision under Section 79 of the IT Act to impose onerous obligations on intermediaries such as the traceability requirement of first originator under Rule 4(2), the 36-hour requirement to remove unlawful content on receipt of a court order or government order is contrary to Section 69A of the IT Act 2000 and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009

6. The Intermediaries Rules 2021 also contravene the existing scheme of the IT Act.2000 which already contains separate provisions for interception, monitoring and decryption of electronic communication under Section 69 and which prescribes standards for encryption under Section 84A.

Some of the other litigations which are pending in relation to the IT Rules, 2021 are as under:

• LiveLaw Media Pvt. Ltd vs Union of India: LiveLaw Media Pvt. Ltd., which owns and operates the legal news portal, and courtroom live update service, “LiveLaw.in”, filed a petition in the Kerala High Court challenging the 2021 Rules. The High Court of Kerala was pleased to admit the matter for hearing, and restrained coercive action of the operation of Part III of the 2021 Rules as applied to Livelaw.
• Foundation for Independent Journalism & Ors vs Union of India & Anr + Quint Digital Media Ltd vs Union of India + Sanjay Kumar Singh vs Union of India: These three petitions challenging the IT Rules, 2021 have been filed before Delhi High Court and have been clubbed together and will be next heard on 08.2021.
• Truth Pro Foundation India  vs Union of India: Truth Pro Foundation India which runs “Pratidhvani”, an independent Kannada news portal, has filed a petition before the Hon’ble Karnataka High Court challenging the 2021 Rules which seek to regulate digital news media. The matter was last listed on 04.06.2021 and was adjourned to 2 weeks.
• Whatsapp LLC vs Union of India: WhatsApp LLC has filed a petition before the Hon’ble Delhi High Court challenging the traceability requirement of Rule 4 (2) of the 2021 Rules.
• Amit Acharya vs Union of India and Ors: A petition has been filed against Twitter India and Twitter US against their non-compliance of 2021 Rules.
• Google LLC vs X and ors– Google LLC filed an appeal before the Division Bench of the Delhi High Court and has sought to set aside the order dated 20th March 2021 passed by the Single Judge that classified “Google Search” as a ‘Social Media Intermediary’ under the IT Rules, 2021 and an interim protection against any “coercive action” which may be taken against Google’s failure to remove the posts as directed, as they are not an SMI in the first place. Read our coverage here.

The IT Rules, 2021 seem to be one of the most widely challenged rules by various sectors of the industry. While intermediaries and publishers are gearing up for meeting their compliance deadline, it would have to be seen whether any of these petitions are successful in getting these rules (wholly or partially)  scrapped.

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