Court tells govt not to take coercive action as IBDF challenges IT & CTN Rules 2021

The Madras High Court has directed the ministry of information and broadcasting (MIB) not to take coercive action against Indian Broadcasting and Digital Foundation (IBDF) and its members for non-implementation of Part III of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 and Cable Television Networks (Amendment) Rules, 2021.

The two-member bench of Acting Chief Justice Munishwar Nath Bhandari and Justice PD Audikesavalu granted four weeks’ time to the Union of India to file counters to the petitions. IBDF, Sun TV Network, and SJ Clement have filed separate petitions against IT Rules 2021 and CTN Amendment Rules 2021. In the petition over IT Rules, the Ministry of Electronics and Information Technology (MeitY) is also a respondent. MIB is the respondent in both the matters.

The IBDF has challenged the constitutional validity of Part III of IT Rules 2021 and CTN Amendment Rules 2021. Both the rules prescribe a three-tier grievance redressal mechanism for OTT platforms and TV channels. The three-tier mechanism is as follows: (i) Level I - A self-regulation by broadcasters; (ii) Level II - Self-regulation by the self-regulating bodies of the broadcasters; and (iii) Level III - Oversight mechanism by the central government.

"Learned Assistant Solicitor General of India appearing for the Union of India prays for and is granted four weeks' time to file counters to the petitions. Let the petitions be listed along with W.P. Nos. 13055 and 12515 of 2021 on 25.01.2022. In the meanwhile, the respondents are restrained from taking any coercive action against the petitioners without seeking permission of the court," the Bench said in an order dated 6th December.

The IBDF said that the writ petition against CTN Rules 2021 is being filed under Article 226 of the Constitution of India for being violative of the fundamental rights guaranteed under Article 14, 19(1)(a), 19(1)(g) and are ultra vires and unconstitutional. The Impugned Provisions of the Cable Television Networks (Amendment) Rules, 2021, are also being challenged on account of being ultra vires the provisions of the Cable Television Networks (Regulation) Act, 1995 (CTN Act).

Regarding IT Rules 2021, the petition states that the rules will have direct and inevitable consequence of controlling freedom of speech and expression which is clearly violative of the IBDF members’ rights guaranteed under Article 19(1)(a) of the Constitution of India.

The foundation also argued that rules also amount to unreasonable, excessive, and disproportionate restrictions on the freedom of trade and business of petitioner members who are engaged in creating, licensing, curating and making available web-series and TV shows and other content on their digital OTT platforms, imposing onerous and burdensome obligations on them, and are thus violative of Article 19(1)(g) of the Constitution of India. The Impugned Rules are ex-facie arbitrary and transgress not only the provisions of the Articles 14, 19(1)(a) and 19(1)(g) of the Constitution but are also manifestly ultra vires the provisions of the IT Act.

The foundation argued that it had set up an independent self-regulatory body for non-news and current affairs channels called Broadcasting Content Complaints Council (BCCC) in June 2011 which has a very effective self-regulation mechanism.

The petition states that the IBDF has also set up an independent self-regulatory body namely, the Digital Media Content Regulatory Council (DMCRC), for addressing grievances for any content made available on the digital OTT platforms of its members.

IBDF noted that it has 60 members with over 400 television channels. In the month of May 2021, IBF was renamed as IBDF as it extended its purview to cover and include online/digital streaming platforms/OTT platforms. At present, SUNNXT, SonyLIV, Voot, ZEE5, Disney+ Hotstar, and discovery+ are part of DMRC.

IBDF prayer against CTN Amendment Rules 2021

The IBDF argued that by virtue of the 2021 Amendments, for the first time, the broadcasters have been directly brought within the purview of the CTN Act, and the Programme Code and the Advertising Code have been made applicable by way of delegated legislation to the broadcasters. It added that there is no provision of the CTN Act which empowers the government to regulate the broadcasters or impose provisions regarding complaint redressal or extend and apply the Programme Code and the Advertising Code to the broadcasters. Thus, the 2021 Amendments are ultra vires the CTN Act.

It also contended that the 2021 Amendments are beyond the scope of general rule making power conferred under Section 22 of the CTN Act. According to IBDF, Section 22(1) of the CTN Act is a blanket and general provision, vesting the Central Government with the power to “make rules to carry out the provisions of this Act”.

It has urged the Madras High Court to grant an order of interim stay against the enforcement or implementation of the Cable Television Networks (Amendment) Rules, 2021, pending disposal of the present writ petition besides declaring and holding that provisions as ultra vires of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India and the Cable Television Networks (Regulation) Act, 1995 and to strike them down as unconstitutional.

It has also pleaded that the HC must declare paragraph 4 of Policy Guidelines for Uplinking of Television Channels from India and Policy Guidelines for Downlinking of Television Channels from India as ultra vires of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India and to strike them down as unconstitutional;

IBDF prayer against IT Rules 2021

In case of IT Rules 2021, the IBDF had sought stay on the enforcement or implementation of Rules 8-19 under Part-III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 pending disposal of the writ petition.

It has also pleaded that the MIB and MeitY be restrained from taking any coercive steps seeking compliance of Rules 8-19 under Part-III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 from its members till the disposal of the writ petition. Further, it wants a stay on the implementation of Rules 8-19 under Part-III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The IBDF wants the HC to declare Rules 8-19 under Part-III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as ultra vires the Information Technology Act, 2000 and are ultra vires of Articles 14, 19(l)(a) and 19(g), of the Constitution of India and to strike them down as unconstitutional.

It contended that the blocking of content under Rules 16 and 17, without any opportunity of being heard is not only violating the principle of natural justice but also impact the trade, commerce, and business of its members, thus, violating Article 19(1)(g) and not saved by Article 19(6).

The petition also pointed out that the rules contain use of extremely vague and subjective terminologies which are unreasonable, disproportionate, and manifestly arbitrary. It further stated that provisions of the rules are in gross violation of principles of natural justice, which is also forms a significant core of the basic structure of the Indian Constitution.

The IBDF called the exercise of powers under Rule 15 (Level III) and Rule 16 (Blocking in case of emergency) in such a manner without giving the appropriate party an opportunity of being heard is a gross violation of the principle of natural justice.

It also highlighted that by giving self-regulation a statutory flavour and including it in the statutory rules, the self-regulating body of IBDF would function like a tribunal which is presided over by a retired judge thereby making it a judicial process. The Joint Secretary being the Chairperson of the Oversight Mechanism along with other members of the executive would sit over the orders of a retired Supreme Court /High Court judge thereby compromising independence of the grievance redressal process, it added.

It also submitted that every member of the Interdepartmental Committee contemplated in Tier III and the Oversight Committee is part of the Executive. There is no independent selection committee and there are no judicial members who are part of the IDC and/or the Oversight Committee.

"It is further pertinent to note that the oversight mechanism contemplated in Rule 13 not only acts as an appellate body over the 2nd tier regulatory mechanism which is headed by a retired judge of the Hon’ble Supreme Court or Hon’ble High Court, can take suo moto directions and order," the petition states.