Thread by @fpjindia

#BombayHighCourt bench of Chief Justice Dipankar Datta and Justice Girish Kulkarni to shortly hear petitions filed by @TheLeaflet_in & @waglenikhil challenging #NewITRules2021 arguing the same are an assault on #FreeSpeech. Union govt to respond today if the laws can be stayed.

Additional Solicitor General Anil Singh would make submissions opposing the temporary stay.

ASG: The new rules are beyond the parent statute. Nothing in IT act that regulates content on online platforms. Only section 69A provides for blocking of content. #NewITRules

ASG: These were the grounds urged before this court by the petitioners. My submission is as on today there is no urgency to stay the rules. No adverse action is taken against the petitioners herein. It is their own case that they have complied with the new rules.
#NewITRules

ASG: Out of 1,800 online publishers, 97 per cent of the news and current affairs publishers have complied with the #NewITRules. Many publishers have also formed self regulatory bodies and though the petitioners claim they have received complaints, there are only two plaints.

ASG: We have already taken care of the grievance in the two complaints. Ministry of Information & Broadcasting hasn't issued any notice to any online platform yet.

CJ: Has the committee (to oversee grievances) been constituted? If yes, who are the members?

#NewITRules2021

ASG: Rule 14, says it is the Ministry that would constitute an inter-departmental committee. As per my instructions, such a committee is yet to be notified.

Committee would have members from Women's ministry, Law and Justice, Foreign Ministry & a domain expert among others.

ASG: I am told that most of the names of the committee have been finalised. It would be notified.
3 level system in the #NewITRules
L1 - Grievance is resolved at publisher level. L2 - It is resolved at self regulatory body level. It is in L3 the ministry comes into the picture

ASG: #NewITRules have been notified after several petitions came to be filed in various High Courts seeking directive to us (Union govt) to regulate the social media.

ASG is now reading out the grounds mentioned in the Petitions seeking interim stay of the rules.

ASG: They say the rules have chilling effect on social media. They claim that reporters of their organisation fear of long term impact on free speech. They claim to have already received complaints of readers about their own content.

#NewITRules2021 #BombayHighCourt

J Kulkarni : Mr Singh their basic challenge is to section 16. How it operates. Please argue on that.

CJ: Suppose, two days back a content on media which is objectionable. How will your authorised officer block it from public access? Is such an officer appointed?

#NewITRules

CJ: Section 69A says officers will have to specially authorised by the Union Govt.

Sr counsel Darius Khambatta for @TheLeaflet_in points out that the IT Act of 2009 already has such a provision and officers have been notified under that law. Such officials are in place...

...and are passing time-to-time orders blocking the content.
Rule 9 of 2009 already provide for blocking the content.

J Kulkarni: 2009 Rules continue to hold ground?

Khambatta: Yes they do.

CJ: But you have not challenged anything in those Rules?

Khambatta: No Milords.

CJ: Rule 16 of the #NewITRules and Rule 5 of old IT Rules of 2009, both deal with blocking objectionable content. When you were okay with Rule 5 till now then why the challenge to Rule 16?
Khambatta: When there is a provision in place what is the need for new rules?

CJ: Now that is a separate thing.

Khambatta is arguing how there is an urgency to stay the #NewITRules as they have a chilling effect on free speech.

#BombayHighCourt

CJ: Mr Singh, say some content is published which may not be stricto senso in terms of journalist standards of conduct but doesn't violate 19 (2), would such content be liable to action?
ASG: I haven't filed my affidavit on merits Milords.
CJ: We are only trying to....

....have a workable solution for the interim. There is no committee in place. So how will the rules operate?

Even if action is taken it cannot go beyond step 2 as step 3 would need the committee, which you haven't notified yet.

ASG reads out from the #NewITRules

ASG is reading out the definition of "publisher" as per the #NewITRules. The code of ethics to be followed is just like that of the #PressCouncilOfIndia
The law doesn't apply to anyone in general but only those involved in the business of news, it can be digital, TV or print.

ASG reads out again from the #NewITRules to state that code of ethics would be the same for digital, print and TV media and that the basic aim is to fight #FakeNews.

Cites observations of the same bench in their verdict in #MediaTrial in #SushantSinghRajput death case.

CJ: Mr ASG, these observations will have to be read in light of media trial, which isn't the issue in these petitions.

J Kulkarni: Can new Rules be brought in if already the issue is being taken care of by susbtantive legislations?
When you have #PressCouncilOfIndia....

.... Its Code of Ethics, then you have Rule 5 of old IT Rules of 2009. There is no material to show these provisions stand abrogated.

How will you manage same action under so many laws? You will act under PCI, Cable TV Act, Old IT rules? How will it be managed?

CJ: After all Mr Singh, these PCI guidelines are beahvioural ones. How can you say these norms if not adhered to would attract penal action. We will make observations in this regard.

ASG has no answer to this. Says would need to take instructions.

#NewITRules2021

ASG: Milords, can this petition wait? We are yet to file a an affidavit on merits.

Khambatta: Please make a statement you won't act against us, we will wait then. We can't have a sword hanging over our heads constantly.

#NewITRules2021 #BombayHighCourt

ASG: Rule 9 (1) says that they must adhere to Code of Ethics. As and when the committee is constituted they can come back with the challenge.

J Kulkarni: As per you, in absence of committee there is no urgency? So does it mean those who are affected would fly with same wings...

...that they had prior to these #NewITRules. Mr ASG you can say there is no urgency but fear of rules operating is the concern

ASG: Please consider the overall situation and let the matter wait

Bench asks ASG to refer to the norms of journalistic conduct by #PressCouncilOfIndia

CJ: See the guidelines for photojournalists there. These are mere dos and don'ts. It doesn't say if not adhered penal action would be attracted. These are behavioural patterns.
Unless you have liberty of thought, how would you express it. You are restricting liberty of thought.

CJ: One has to be humble. If one isn't humble he doesn't need to be penalised Mr Singh.

CJ now asks ASG to read the journalist conduct for the print media, which reads that the said guidelines would help them self regulate.

There is something called as self regulation...

...you cannot penalise.

ASG: Milords, it isn't that action would be taken against everyone. There are three levels and the media only has to adhere to the code of ethics. The self regulatory authority is headed by a former judge of the Supreme Court.

#NewITRules2021

ASG refers to the Union govt's reply.
Over 97 per cent news and current affairs digital portals have complied with the #NewITRules2021.

Till date there has been no order of ministry against any digital platform under the new Rules.

#BombayHighCourt

ASG cites two judgments to support his contention not to stay the #NewITRules at the interim stage.

ASG: These rules are in larger public interest. There are lot of fake news cases which your Lordships have come across. Thus we need to stop this.

#BombayHighCourt

J Kulkarni: How long will it take to appoint the Committee? Because it is your contention that till that Committee is formed the petitioners need not fear.

ASG says he would need instructions on this.

Bench is discussing the issue now.

#BombayHighCourt
#NewITRules2021

There is some issue with the bench's Mike, which seems to be off. Thus, the bench isn't audible.

ASG points out that @Twitter itself has filed a petition in the #DelhiHighCourt being an intermediary. @TheLeaflet_in is a member of an association, whose another member @TheQuint had approached #DelhiHighCourt but couldn't get any relief.

#BombayHighCourt #NewITRules2021

CJ: So Mr ASG, what are you trying to drive out? Do you want to say if one HC didn't give relief then other person cannot go before another HC?

ASG: No Milords. Just that they are members of the same association.

#NewITRules2021 #BombayHighCourt

After discussing the provisions of the #NewITRules, CJ: What we propose to do is we won't touch Rules 14 & 16 because the committee isn't in place. So far as Rule 9 is concerned, we will grant limited relief to the extent that no coercive action be taken against @TheLeaflet_in ..

....and Mr @waglenikhil as even he is a journalist, who has approached us.

Khambatta: Please give me two minutes. ASG couldn't point out any provision of IT Rules, 2009 for bringing in the New Rules. The very affidavit filed before this court makes it necessary for interim stay

Khambatta is citing Supreme Court judgments to convince the bench to grant an interim stay to the #NewITRules2021.

#BombayHighCourt

Khambatta: The 2009 Rules set up a detailed hierarchy of officials. That is already in place. The #NewITRules aim to set up a parallel mechanism. There would be a complete chaotic situation.

Access can be blocked only on six grounds viz sovereignty, integrity, security etc

CJ: Mr Khambatta can u tell us what was the need for the Union to come up with a new set of #NewITRules without superseding the already available Rules of 2009.

Khambatta: That is exactly my contention Milords. What was the need to bring in new rules when we already have one.

Khambatta: It is beyond the expressly conferred rule making power thus the new rules are arbitrary and bad in law.

Khambatta is citing case laws to support his case.

#BombayHighCourt #NewITRules2021

Khambatta: Mr ASG says there is no urgency in this matter. Article 19 (1) A is one of the most precious fundamental right. I have already pointed out the chilling effect of these #NewITRules 2021. They cannot say the committee is yet to be formed.

#BombayHighCourt

Khambatta: If I as a journalist is asked to report both the sides, I can't run a story on one side of the case because then I would fall against the code of ethics and would be liable for action. There is a real urgency and thus we are before your Lordships.
#NewITRules2021

Khambatta: Mr ASG says the rules affect only the business, no. These rules directly affect the free speech of writers, authors, journalists etc. Thus, right to free speech is being violated by these #NewITRules2021

#BombayHighCourt

Khambatta: On the internet there is a variance of information. You might like something and might dislike something else too. We are a constitutional democracy thus there is a right to have a free speech. I conclude my arguments.

CJ: When did @Facebook came to India?

Adv Abhay Nevagi for @waglenikhil tells the bench that #Facebook was launched in 2006 and @WhatsApp was introducted in 2009.

Nevagi points out the punitive powers under the New Rules. Protection accorded to us by Rule 79 of old Act is being taken away in new rules

CJ: Yes Mr ASG, this is serious. What would u say on this?

But Mr Nevagi this applies on Intermediaries and you aren't one. Let Intermediaries approach us, we will consider it.

Nevagi reads out definition of Intermediary to establish that he is an Intermediary under new rules

Nevagi: Any person dealing with transmission of data would be an intermediary.
My instructions are clear, my client (@waglenikhil) doesn't need any protection for himself but for everyone.
My client is hired by TV channels as an anchor he receives data he is intermediary

Bench discusses that the definition of the Intermediary and seems to be convinced with Nevagi's submissions.

CJ: How can a statutory protection be taken away by a subordinate legislation?

ASG: Let's get into all this at the time of final hearing.

#NewITRules2021 #BombayHC

CJ: Okay. We will pass orders tomorrow 4 pm.

Hearing Ends.