The media outlet filed the petition after its instagram account for Harper's Bazaar India was blocked on a third party's complaint alleging copyright infringement.
Media organisation TV Today has moved a petition before the Delhi High Court challenging the constitutionality of Rule 3 (1) (c) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules) [TV Today v. Union of India].
Appearing before a bench comprising Acting Chief Justice Manmohan and Justice Manmeet Arora, advocate Abhishek Malhotra (for TV Today) submitted that the issue concerns an intermediary's power to completely remove a platform user's access to an account.
The rule in focus, that is Rule 3 (1)(c), states:
"An intermediary shall periodically inform its users, at least once every year, that in case of non-compliance with rules and regulations, privacy policy or user agreement for access or usage of the computer resource of such intermediary, it has the right to terminate the access or usage rights of the users to the computer resource immediately or remove non-compliant information or both, as the case may be."
TV Today urged the Court to either declare the rule as unconstitutional or to read it down in a manner consistent with the Information Technology Act, 2000, Section 52 (fair use) of the Copyright Act and Articles 14, 19, and 21 of the Constitution of India.
The petition was filed after the Instagram account for TV Today's magazine, Harper's Bazaar India (@bazaarindia), was blocked on a third party's complaint alleging copyright infringement.
Such a termination of the social media account violates Articles 14 (right to equality) and 19 (various freedoms including freedom of speech and expression, freedom of trade) of the Constitution, it was contended.
TV Today argued that Rule 3 (1)(c) allows an intermediary to block access to accounts without providing a fair opportunity for users to contest such a decision. Certain ambiguities in the IT Rules are being misused to do so, the Court was told.
"The difficulty is this. Every time there is a (copyright) strike, I tell them that this is because I am a news organisation. I am using it under Section 52, fair use provision. They are not in a position to decide whether my use is fair use or not … Today I am being asked to discontinue my platform, which 99.03% is genuine content. 0.7% is what they have a problem with and that is why account is being disabled," Malhotra said today.
The Court eventually issued notice in the matter and posted it for further hearing on May 17.
Meanwhile, the Court suggested that TV Today challenge the account block before the appellate authorities constituted under the IT Rules.
"We need at least Instagram to be before us. In the mean time, you can get an interim order from the grievance redressal appellate forum," Acting Chief Justice Manmohan told Malhotra.
Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora
Malhotra replied that he could file such an appeal within a day, but urged the Court to direct the appellant authority to decide on the matter in a time-bound manner.
The Court recorded Malhotra's submission and directed the appellate authority to decide on the matter expeditiously, preferably within two weeks, if the appeal is filed by tomorrow.