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BBC documentary ‘blocking’: Ruling in The Leaflet’s case becomes basis for challenge

A partial stay on the IT Rules obtained by The Leaflet becomes the primary basis of challenging the government’s attempt to bury a documentary on the Prime Minister. The Supreme Court will hear the petition on February 6.

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IN August 2021, The Leaflet was able to successfully challenge the provisions of the controversial Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (IT Rules) in the Bombay High Court and obtain an interim stay. The high court had accepted The Leaflet‘s contention that the Rules violate the constitutional guarantee of freedom of speech and were ultra vires of the scope of its parent statute, the Information Technology Act, 2000 (IT Act), while staying the operation of its key provisions, Rules 9(1) and 9(3).

Now this order has become the primary basis of a petition challenging an order of the Union Ministry of Information and Broadcasting (MIB) to block a BBC documentary on the Prime Minister from Twitter and YouTube, using its emergency powers under the IT Rules read with the IT Act.

The petition has been filed in the Supreme Court under Article 32 of the Constitution by journalist and former Editor-in-Chief of The Hindu N. Ram, Member of Parliament Mahua Moitra, and public interest lawyer Prashant Bhushan. Twitter posts on the documentary by Moitra and Bhushan were blocked in the aftermath of the release of the documentary.

The Union Government has been impleaded as the respondent, along with Twitter, and YouTube owner Google, who were ordered to remove links relating to the two-part documentary titled India: The Modi Question.

It is the petitioners’ contention that the Bombay High Court’s order in Agij Promotion of Nineteenonea Media Pvt. Ltd. v. Union of India (2021) staying the operation of Rules 9(1) and 9(3), provisions fundamental to the Rules, had the incidental effect of staying ancillary provisions relating to the emergency blocking of online content.

Hence, the MIB did not possess the power to order the blocking of links relating to the documentary and therefore, the directions to thwart its dissemination are “prima facie illegal” for contravening the order pronounced by the high court, the petition states.

On the actual content of the documentary and the tweets associated with it, the petitioners have argued that neither the contents of the documentary nor the tweets of the petitioners fall within any of the restrictions under Article 19(2) of the Constitution of India.

A separate petition has also been filed in this regard by advocate M.L. Sharma. The court is scheduled to hear both petitions next week on February 6.

No blocking order

Noting that no order is available in public domain, and hence, the exact grounds employed by the MIB continue to remain unclear, the petitioners contend that “[f]reedom of speech and expression cannot be curtailed in such manifestly arbitrary manner”. The only public admission on this matter by the Union Government has come from a series of tweets by a senior advisor to the MIB.

It has been submitted that censoring the freedom of speech and expression of the petitioners by “opaque orders and proceedings” and the non-availability of blocking orders has the effect of frustrating the fundamental right of the aggrieved to effectively seek judicial review of administrative actions under Articles 32 and 226 of the Constitution.

The Supreme Court’s decision in Anuradha Bhasin versus Union of India (2020) has been cited, which held that regardless of whether a legislation or rules made under it provide for publication or notification of orders, it is settled principle of law and of natural justice that an order, “particularly one that affects lives, liberty and property of people”, must be made publicly available. “Any law which demands compliance of the people requires to be notified directly and reliably,” the court had said in that case.

The public availability of these documents holds significance in that they would reveal the reasoning applied and the material considered by the MIB and the Inter-Departmental Committee to thwart access to the documentary, in addition to revealing whether other intermediaries have received similar orders.

The petition also claims that petitioners Moitra and Bhushan have not been provided an opportunity of being heard in relation to the censoring of their tweets, in violation of principles of natural justice. It should be noted here that no opportunity for hearing is required to be provided to any person, publisher or intermediary under Rule 16 of the IT Rules.

The petition also decries the detention of students who had planned to screen the documentary in their respective universities, noting that the content of the documentary has not been censored by the Union Government. An overarching ‘ban’ on the documentary can only be executed through the procedure established by the Cinematograph Act, 1952; a course which has not been adopted by the government yet, it notes.

The Leaflet case

In August 2021, in response to a petition filed by Agij Promotion of Ninetineonea Media Pvt. Ltd., the entity that operates The Leaflet, and journalist Nikhil Wagle, the Bombay High Court had imposed an interim stay on Rule 9(1) and (3) of the IT Rules.

The IT Rules had introduced a Code of Ethics to be mandatorily followed by publishers of news and current affairs, and publishers of “online curated content” such as OTT (over-the-top) platforms.

Rule 9(1) provides that these publishers shall observe and adhere to the Code of Ethics laid down in the Rules. Meanwhile, Rule 9(3) creates a three-tier regulatory structure for ensuring adherence to the broadly worded Code of Ethics. The top-most level of regulatory powers has been designated to the Union Government.

In its order, the high court found that the prescribed ‘Code of Ethics’ go beyond the restrictions enumerated in Article 19(2) of the Constitution, and therefore was not a valid basis for restricting, in any manner, the freedom of speech and expression, within which is implicit the freedom of the press.

The argument of the petitioners is that the staying of Rule 9(3), which stipulates a three-tier mechanism of which government oversight mechanism is a part, had the incidental effect of staying the operation of Rule 13, which details the oversight mechanism of the Union Government. Furthermore, since Rule 13 has been stayed, the MIB could not have possessed the power to process the blocking order under Rule 16, the petition contends.

Hence, the petitioners argue, the directions to thwart the dissemination of the documentary are “prima facie illegal” for contravening the order pronounced by the Bombay high court in The Leaflet’s case.

In 2021, the Madras High Court, in an interim order, noting that the Bombay High Court had already partially stayed the operation of the Rules, had stated that as per the Union Government’s admission, the Bombay High Court’s order “would have pan India effect”. Additionally, the Madras High Court found prima facie substance in the grievance that a governmental oversight mechanism to control the media may rob it of its independence.

The Bombay High Court’s order has been challenged by the Union Government through a special leave petition, but is yet to be interfered with at present. The Union Government, on at least one instance, has questioned the right of the high courts to hear the challenge to the Rules. In May last year, the Supreme Court had stayed further proceedings before the various high courts.

Emergency blocking provisions

The MIB derives its emergency powers to order the blockage of online content from a collective reading of Section 69A (potential grounds for blocking) of the IT Act with Rule 16 (procedure of blocking) of the IT Rules.

Under Rule 16, in an emergency situation “for which no delay is acceptable”, an authorised officer shall examine the relevant content to consider “whether it is necessary or expedient and justifiable to block such information” and make a recommendation in this regard to the MIB Secretary.

No opportunity for hearing is required to be provided to any person, publisher or intermediary under Rule 16, but the provision stipulates a mechanism to review the blocking order by an Inter-Departmental Committee comprising representatives from various ministries and domain experts, who must be informed within 48 hours from the issuance of the direction. However, the opinion of the Committee is only recommendatory in nature and the MIB Secretary is at liberty to overrule its decision.

A second level of review is to be conducted by a Review Committee constituted under the Telegraph Rules, 1951. While it has the power to set aside an MIB order, it has been mandated to meet only at least once every two months to review whether the blocking direction was in accordance with the provisions of Section 69A(1) of the IT Act.

Section 69A lists the potential grounds under which the MIB may exercise the powers specified in Rule 16. These grounds are: sovereignty or integrity of the country, security of the State, friendly relations with foreign States, public order, and the prevention of incitement to the commission of any cognisable offence relating to the above.

The MIB, in reply to an application under the Right to Information Act, 2005 (RTI Act) filed by international human rights organisation Commonwealth Human Rights Initiative (CHRI) on December 14 last year, refused to divulge documents relating to previous content blocking orders, the Inter-Departmental Committee’s recommendations and the minutes of the Review Committee’s meeting.

The CHRI, in its RTI Act application, stated that the documents it seeks are in the nature of information that is required to be disclosed suo motu under Section 4(1) read with Section 4(2) of the RTI Act. However, the MIB, in its reply dated January 10, had invoked Section 8(1) of the RTI Act (Exemption from disclosure of information), claiming confidentiality.

Section 69A or other provisions of the IT Act do not consider such documents as confidential or warranting an automatic exemption under the RTI Act. An order to block access to any content under section 69A must necessarily be recorded in writing with reasons, as per the provision. Meanwhile, under the IT Rules, the authorised officer has been mandated to maintain complete records of directions issued by them, and the proceedings of the inter-departmental committee, including any complaints referred to it and recommendations made by it.

Despite the above provisions, the MIB and the Press Information Bureau are yet to publicise the Ministry’s orders against YouTube and Twitter.

From 2015 to 2022, the Union Government invoked its powers under section 69A to block websites, URLs, applications, social media posts and accounts a total of 22,447 times, according to a report by the non-profit organisation, Software Freedom Law Center titled Finding 404: A Report on Website Blocking in India.

The present petition by Ram, Moitra and Bhushan has asked the Supreme Court to restrain the Union Government, YouTube and Twitter from curbing the freedom of speech and expression of the petitioners to receive and disseminate information contained in the documentary.

The Leaflet