India’s largest news agency has become the tenth party to challenge the rules, but the Delhi HC refused to grant interim protection to any publisher
This is the tenth lawsuit by a news organisation against the Digital Media Code of Ethics and the second by a legacy media organisation. The Digital News Publishers Association (DNPA), whose members include the digital arms of legacy publishers and news channels such as the Times Group, India Today Group, NDTV and others, had earlier moved the Madras High Court against the Code. However, unlike PTI and the other seven lawsuits, DNPA’s has also argued that legacy media houses, which run newspapers and TV channels, are not digital media and should not be covered by the Rules. PTI’s board of directors, chaired by Anand Bazar Patrika’s Aveek Kumar Sarkar, also has representation from The Times Group, HT Media Ltd, Express Group, The Hindu, Jagran Prakashan Ltd, Deccan Herald, Bombay Samachar, Malayala Manorama and others. PTI is described as a “non-profit sharing cooperative owned by the country’s newspapers”. Lay readers have access to a small section of its website but the agency earns revenue through subscriptions offered to newspapers, news channels, and other news organisations.
Wasim Beg, partner at L&L Partners that is representing PTI, told Forbes India that PTI’s lawsuit differs from DNPA’s as it argues, amongst other things, that digital media, as a concept, has not been defined under the IT. “If the parent act has not defined digital media, the delegated legislation can’t look to govern it,” he said. It is not clear if PTI also received a notice from MIB on June 18 to furnish information by June 23 but Beg said, “Given the unconstitutional nature of the Rules, we decided that we would challenge them straightaway.” Beg, along with Managing Associate Swarnendu Chatterjee, has been working on the lawsuit for two weeks.Says Chatterjee: “Whether the Rules enacted in pursuance of the Act can cover within its expanse the ‘digital media’ or if the same amount to going beyond the scope of the Act should definitely be clarified by the courts. This is why we see a plethora of petitions being filed all over the country.” Journalist Nikhil Wagle’s petition against the entirety of the Rules will be taken up by the Bombay High Court today. Online digital publication, The Leaflet, which focusses on legal news, too has moved the Bombay High Court against the Rules. In all cases, notices have been issued to the central government. It is only in Live Law’s lawsuit that the Kerala High Court granted it interim protection from any coercive action. In all other lawsuits, no court granted any stay.
The Central Government has, meanwhile, filed a transfer petition to transfer all these cases to the Supreme Court. The Delhi High Court refuses to grant interim protectionEarlier today, a Delhi High Court special bench of Justice DN Patel and Justice JR Midha refused to grant PTI interim protection against coercive action by the state, but issued notice to the Ministry of Electronics and Information Technology (MeitY), and Ministry of Information and Broadcasting (MIB). Advocate NB Joshi, on behalf of PTI, had argued to not have any coercive action be taken against the news agency for not being a part of a self-regulatory body. He argued that such a body must be industry-wide. Joshi represented the DNPA in the Madras High Court. The division bench of Chief Justice DN Patel and Justice Jyoti Singh also refused to grant any interim protection to The Wire, The Quint, The News Minute and Alt News from any coercive action taken by the central government and instead adjourned the cases to August 20. The bench also directed the government to file their affidavit by then. Senior Advocate Nitya Ramakrishnan pointed out that the government has not filed a reply yet. This reply was due in April. Ramakrishnan repeatedly asked for protection from adverse actions pointed out that “heavens will not fall if they [central government] wait” for the cases to be resolved first before sending notices to publishers. Justice Patel said the court would grant protection next time. Lawyers for the government, Chetan Sharma, Kirtiman Singh, and Vikramjit Banerjee submitted that the transfer petition in the Supreme Court have been preferred. Sharma submitted that 1,000 digital publishers have already furnished their information to MIB. For those in the back, intermediary ≠ publisher, publishers not within the IT ActLike its digital brethren, PTI has also pointed out that the definition of “digital media” under the Rules makes it clear that an “intermediary” (such as Airtel, RazorPay, Cloudflare, Google, Facebook, etc.) is mutually exclusive from a “publisher”.
PTI has argued that while any news and current affairs content, made available over internet and computer networks, is covered by the Rules, any such content that is published in a physical newspaper, and in its exact replica online edition, is not. However, none of these definitions—“news and current affairs content”, “newspaper”, “publisher of news and current affairs content”—are given in the Rules’ parent legislation, the Information Technology Act. PTI, like others before it, has argued that Part III is ultra vires (beyond the mandate of the law) of the IT Act and does not recognise digital news media as a separate category of entities. It has argued that the Rules seek to “diversify and amplify the limited reading beyond all possible recognition to allow impermissible state dictation and interference with the digital media and online publishers of news and current affairs”.
The news agency has also said the enabling provision of the IT Rules is only related to intermediaries. Distinction between digital and print publishers is artificialPTI has argued that the distinction between print and online news publishers is artificially and violative of Article 14 of the Constitution as per which equals cannot be treated unequally. It has also argued that granting the executive the power to “virtually dictate” the content of news portals will violate right to freedom of speech and expression (under Article 19). It also challenges a clarification that the central government issued on June 10 as per which online media sometimes report incidents differently from print media. PTI has called this a “presumption”.