Saurav Kumar is a fourth year student at RMLNLU, Lucknow
- Introduction
The Karnataka High Court has issued its ruling regarding Twitter’s legal complaint with regard to the “blocking orders” issued by the Government under Section 69A of the Information Technology Act, 2000 (IT Act). The rules on the social media network banned a number of tweets as well as whole user accounts. The Union Government is granted the ability to restrict content on the internet under this section. The clause has been in the law for more than ten years and was upheld in 2015 despite a constitutional challenge. However, following legal and factual developments have once more highlighted some of the constitutional flaws in the clause alongside the government’s usage of this authority to control online speech. Reports show that the number of blocking orders passed under Section 69A have increased from 471 in 2014 to around 10,000 in the year 2020. Moreover, this is due to the internet’s rapid growth and importance in influencing public discourse.
- Section 69A, Constitutionality and Safe Harbour provisions
The safe harbour immunity provision has been granted under Section 79 of the IT Act. This provision provides immunity to an intermediary from liability for third-party content on its platform, so long as the intermediary followed the government’s guidelines for “due diligence.” When the Central Government’s requirements for “due-diligence” were not met, the intermediary was held accountable for the third party’s actions, even if they were carried out without the intermediaries’ knowledge. Following the 2008 amendment, it was further settled that actual knowledge of the unlawful act and adherence to the due-diligence requirements were the two main determinants of whether an intermediary might apply for safe harbour.
In accordance with Section 69A, the government may prevent the public from accessing “any information” online when: firstly it deems it “necessary or expedient”; and secondly it serves the sovereignty, integrity, defence or security of India or its relations with other foreign states, public order, or the prevention of the incitation of an offence falling under any of these headings. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“Blocking Rules”) provides guidelines that must be followed when the government decides to prohibit content.
Rule 8 mandates that, when restricting content, the government to “make all reasonable efforts to identify the person or intermediary who has hosted the information”, send them a notice requesting an explanation of why the content shouldn’t be prohibited. The intermediary or the individual uploading or starting transmission of the content (referred to as a content “originator” under the Information Technology Act) have 48 hours to respond. Further based on the information available, the government shall issue an order on whether the content should be blocked, at the conclusion of the 48-hour period. This shall not necessarily include the originator’s or intermediary’s response The applicable Rules also include an emergency procedure, in which the Government only issues an order directing the content and no hearing is necessary.
In Shreya Singhal v. the Union (2015), the Apex Court addressed the legality of Section 69A and upheld it. The Court noted that blocking could only be used to protect India’s defence, security, foreign relations, public order, etc., which the Court noted were the same reasons that the Constitution within Article 19(2) allows it to be used as justifications for restricting free expression. The Court argued that this proved Section 69A’s restrictions on expression were in conformity with constitutional requirements for free-speech. Furthermore, the Court determined that the applicable Rules provided adequate procedural safeguards against the government limiting free speech by granting both the content author (if identified) and the intermediary a hearing. While blocking orders must be issued in writing, the Court emphasised, guaranteeing that “they may be assailed in a writ petition under Article 226 of the Constitution.“
- Past Trends
The petitioner in Tanul Thakur v. Union of India claimed that his spoof website “Dowry Calculator” had been restricted under Section 69A but that he had neither received notice or been given the opportunity to be heard. The government has been frequently ordering intermediaries to block content directly and refuses to make blocking orders public, citing confidentiality provisions under Rule 16. This behaviour is especially outrageous in cases like Tanul Thakur or the blocking of the Caravan twitter account, where the content creator has openly claimed ownership of it, destroying any myth that the government couldn’t track down and contact the creator.
The High Court of Delhi ordered the government to give the content’s creator the blocking order’s copy and to have a post-facto hearing to explain why his work shouldn’t continue to be prohibited in response to Tanul Thakur’s challenge. Despite the fact that the High Court avoided delving into the very constitutionality of blocking the website, the judgement acknowledges the following: (i) the necessity of giving originators a chance to challenge restrictions on their right to free speech and expression; (ii) the government’s failure to provide such hearing (the government does not appear to have argued that the order was passed under the emergency procedure); and (ii) the significance of providing the originator with a legal remedy. Given that the Supreme Court explicitly endorsed Section 69A with the idea that the blocking order would be made available, allowing for appeals to specific instances of content blocking, this order by the High Court assumes significant importance.
- The Twitter Case
The Honourable Karnataka High court recenty issued order on the blocking orders against X Corp (erstwhile Twitter). Between February 2021 and February 2022, the Government issued blocking orders under Section 69A of the Act against 1,474 Twitter accounts and 175 Tweets. Twitter followed the instructions “under protest.” At the post-decisional hearing, the government ordered Twitter to abide by all orders issued under Section 69A of the Act for the blocking of the designated accounts and tweets and issued a warning to the tech giant that failure to do so could result in the loss of its immunity as an intermediary within the meaning of Section 79(1) of the Act as well as legal repercussions. Only certain accounts were permitted to have blocking orders revoked by the Review Committee.
There were two major issues analysed by the court, first to consider whether Section 69A gave the Union Government the authority to block whole accounts rather than specific tweets. Second, rather than only providing the justification to Twitter, was the Government required to inform the users whose content was being blocked of its grounds for blocking. On both grounds, the High Court found against Twitter. Surprisingly, the High Court’s decision demonstrates how courts can employ all available interpretive techniques to give the government carte blanche to censor free expression online rather than providing a comprehensive and nuanced analysis of these issues within the context of how censorship is operationalised online.
4(1). Blocking accounts and not Tweets
Twitter argued on two grounds that Section 69A only allowed the Government to prohibit specific tweets, not entire accounts. Firstly, a single account has a large number of tweets, only some of which may be illegal, therefore deleting entire accounts is unfair. As a result, Twitter contended that the Government’s restrictions should only apply to unlawful tweets because deleting entire accounts would also prevent any connected lawful tweets. This contention was rejected by the High Court with the simple statement: “An exercise to differentiate among the individual tweets in an account and segregate the offensive from the benign, is impracticable and would not serve the statutory purpose.” Examining the State’s technological and administrative capabilities as well as the relevant legal norm used by other Indian courts makes it clear that this line of thinking is inadequate. Anyone who has used Twitter is aware that it is feasible to obtain the URLs for specific tweets in addition to account URLs, making it technologically possible to distinguish between tweets and accounts. Furthermore, the Government itself disables whole accounts in some circumstances and specific tweets in others, as the High Court notes in its ruling. Therefore, the government distinguishes between tweets and accounts and has a justification for when a tweet should be prohibited as well as an apparently higher bar for when an account should be blocked. A very exceptional accomplishment for any constitutional court, the Karnataka High Court has embraced a strategy that is less rights-protective than present state practice.
The High Court’s reasoning also goes against the proportionality criteria that Indian courts have been using since Puttaswamy case. The least restrictive action the government can take to stop a single or small number of allegedly illegal tweets is not to block a full account (including many valid tweets), and depending on the situation, it may even be unfair. The decision made by the Delhi High Court when presented with a similar situation can be contrasted with the Karnataka High Court’s refusal to conduct a meaningful proportionality examination in this case. Moreover in Dept. of IT v. Star India, the Delhi High court decided whether to restrict specific pages or an entire website for harbouring copyright-violating information. An entire website is made up of legal and illegal webpages, much like a Twitter account is made up of both legal and illegal tweets. The Delhi High Court curated a list of criteria to take into account before blocking an entire website, including: the relative significance of the rights in question; the availability of lesser restrictive measures; the costs of implementing the measures; the efficacy of the measures; and whether the website’s primary function was unlawful. The Karnataka High Court simply determines that such an undertaking would be impractical rather than adopting a similar strategy (which is loyal to the proportionality criterion laid out in Puttaswamy) and requiring the Government to assess comparable criteria before implementing account level blockage.
Furthermore, Twitter’s second argument for opposing the blocking of entire accounts was that the phrase “generated, transmitted, received, stored, or hosted” in Section 69A shall only be applicable to already published content and could not be used to prohibit future content. Importantly, a user’s Twitter account serves as both an archive for all of their previous tweets and a platform for publishing fresh content. Therefore, restricting a user’s account also prevents them from submitting new tweets, which Twitter claimed went beyond the bounds of what Section 69A allowed. The High Court rejected this claim, holding that even if the words’ effect were extended to the future tense, their “verbal form” remained unchanged. It is argued that applying Section 69A to future limits on unpublished content has a very different legal impact than doing the same for content that has already been published. Blocking an account to prevent future speech is an act of prior restraint, the most severe type of free speech restrictions, whereas restricting published speech is subject to Article 19(1)(a) and proportionality analysis. Imposing prior constraints on speech means declaring all of the speaker’s statements to be presumptively illegal. This prevents the speaker from practising their constitutionally guaranteed freedom of expression, even with regard to statements that are permissible. The court justified this by stating that the statute provisions must be construed broadly to give effect to Parliament’s intention to empower the authorities to block unlawful content on the internet.
By allowing the disabling of accounts, the High Court effectively interpreted Section 69A to cover prior restrictions on future speech. Section 69A is expressly framed against already published content (anything that is “generated or hosted”). In other words, the Court has construed the statute’s language to give the government more authority to stifle free speech on the justification that Parliament intended to give it the most sweeping ability to do so. However, as we shall see, the High Court’s benevolence towards the goals of the Parliament does not extend to the parts of the Act that grant users rights.
4(2). Second prong of the challenge
Twitter’s second point of contention was that users were not given notice or an opportunity to be heard before their content was blocked, and that the Union Government had failed to issue orders with justification for the content that was being blocked. The applicable Rule requires the government to make reasonable attempts to notify the “person (i.e., user) or intermediary,” and that Section 69A mandates that orders contain “reasons to be recorded in writing.” The High Court noted that the orders and the reasons behind them were given to Twitter at several meetings (regarding which users were neither alerted nor present) and rejected Twitter’s arguments. The Court further noted that, in cases where a statute calls for an authority to provide written explanations for its actions, natural justice principles typically demand that this information be provided to the person whose rights were affected by the authority’s decision. The High Court continues, “However, this is not always the case, and given that the government on the whole had complied with procedural fairness by disclosing the orders to Twitter at the aforementioned meetings, the non-communication of reasoned orders in a formal way would not vitiate the orders”
The High Court noted that Rule 8 used the phrase “person or intermediary” but not “person and intermediary” and that a literal interpretation of this language led to the conclusion that the Government only had to notify Twitter, not the users, with regard to whether users had to be given a copy of the orders and a hearing. As a result, the High Court fined Twitter INR 50,00,000.00 (Rupees Fifty Lakhs) as an exemplary cost.
- Conclusion
The High Court’s reasoning at various instances seems to be deeply flawed. Firstly, procedural due process requires that the affected person get a reasoned order; this need is essential and cannot be waived based on the government’s overall conduct in a particular situation. Since Maneka Gandhi, the government has been required to give notice, an opportunity to be heard, and a fair tribunal when limiting constitutional rights. This demand for due process has also been integrated into the assessment of restrictions of other fundamental rights, such as the right to free expression. Furthermore, the person whose rights are violated must be informed of these grounds. The High Court should have considered this very well in light of Shreya Singhal v. Union, where while interpreting Section 69A the apex court stated “It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the “person” i.e. the originator is identified he is also to be heard before a blocking order is passed. […] Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Articles 226 of the Constitution.”
It is obvious that the Supreme Court’s interpretation of Section 69A by which the High Court should have been bound, envisioned a system in which: (i) the Government made reasonable efforts to identify users whose content was being blocked; (ii) the Government sent notices to those users explaining why their content was being blocked; and (iii) users could file lawsuits against the Government in High Courts. Admittedly, there might be exceptional circumstances in which the Government is unable to identify the users or in which informing users might be harmful (I’ve covered this here). The Government must use “reasonable efforts” to locate the impacted user, according to Rule 8.
However, by interpreting the phrase “person or intermediary” literally to imply, either or, the High Court effectively prohibits the Government from taking any action to identify and alert users.This is especially aggravating because the Government has blocked tweets from journalists, members of state legislatures, and members of parliament that are clearly identifiable. The High Court adopts a broad interpretation when determining the extent of the Government’s ability to censor speech, extending the Government’s authority to include prior restraint over future speech on the justification that Parliament intended to give the Government the authority to take action against illegal online speech. However, the High Court considers a literal reading when interpreting the procedural safeguards that defend people’ rights against the Government, rigidly or narrowly interpreting the procedural restrictions on Government power that defend individuals’ rights. Resuntantly, X Corp has preferred an appeal before a division bench of the High Court against this order of the single judge order. It will be interesting to see if the Court takes due care of the concerns discussed above.