As reported in our last update of March 07, 2021, the Government of India notified the 2021 IT Rules on February 25, 2021 to replace the predecessor 2011 Rules. The 2021 IT Rules seek to regulate three classes of content carriers: intermediaries, Over the Top (OTT) video streaming platforms and digital news media.

On March 6, 2021, a group of digital media publishers, carrying on business as publishers of news and current affairs content, has challenged the 2021 IT Rules as ultra vires the Information Technology Act, 2000 in so far as they apply to and affect digital news portals. The primary grounds on which the challenge is mounted are three-fold:

1. The 2021 IT Rules purport to virtually legislate on the conduct of news media publishers, a class of entities not even within the ken of the parent IT Act. 

2. They travel beyond the specific enabling sections and introduce new concepts and regulations.

3. They attempt to proscribe content on the basis of vague and subjective grounds which the Supreme Court of India has already voided when it struck down Section 66-A of the IT Act in the Shreya Singhal case. Section 66-A constituted as an offence, transmitting offensive, annoying, menacing electronic material and it was struck down on the ground of vagueness. The 2021 IT Rules intend to regulate content on vague and subjective standards as provided in the Code of Ethics, such as ‘half-truths’, ‘good taste’, ‘decency’, etc., when the primary section which contemplated such subjective standards was itself struck down.   

The petition came up before the Delhi High Court on March 9, 2021. After hearing arguments from the petitioners along the lines of the grounds set out above, the High Court Bench hearing the matter has issued notice to the Government of India and called for its response. The petition will be heard by the Bench once the Government has filed its response.