A Case of Unchecked Power to Restrict E-Free Speech

Context: 

On June 30, 2023, the Karnataka High Court dismissed Twitter’s challenge to the issuance of blocking orders by the Ministry of Electronics and Information Technology (MeitY) in connection with the taking down of Twitter accounts and specific tweets.

• The High Court admonished Twitter for not complying with the orders and imposed an astounding cost of ₹50 lakh.

Background: 

• February 2021: The government directed Twitter to block over 250 Twitter accounts that were covering the farmer protests and were critical of how the government had handled the situation.
• July 2022: Twitter got in trouble for flouting the new IT rules on four counts:
  • No chief compliance officer had been appointed
  • The position of the resident grievance officer was vacant
  • The position of the nodal contact person (even on an interim basis) was vacant
  • The physical contact address was not available on Twitter’s website.
    • The Union government on 5 July told the Delhi High Court that Twitter has failed to comply with IT Rules 2021, leading to a loss of its immunity as an “intermediary.”
• July 2022: Twitter complied to the IT Rules with the orders to avoid losing its immunity as a social media intermediary.
  • Twitter has moved to the Karnataka High Court to challenge the government orders to take down content.
  • It has claimed that many of the blocking orders are procedurally and substantively deficient under Section 69 (A) of the Act.

About Section 69A of the Information Technology Act, 2000:

• It empowers the government to order intermediaries (such as telecom service providers, internet service providers, search engines, etc.) to block access to digital information. 
• This can be done on the grounds of: 
  • Sovereignty and Integrity of India:  Ex”Join our movement for an independent state! Let’s break away from India and form our own country. #FreedomForXYZRegion” 
  • Defence of India:  Ex”Here’s the exact location of our military bases and their vulnerabilities. Let’s plan an attack and weaken India’s defence capabilities. #StrikeAgainstlndia” 
  • Security of the State: Ex “Let’s burn down houses and attack people from community XYZ. They are a threat to our religion and culture. #PurgeXYZCommunity” 
  • Friendly Relations with Foreign States  Ex: “Citizens of country XYZ are all criminals and should be banned from entering India. They are ruining our economy and stealing our jobs. #BoycottXYZNation” 
  • Public Order:  Ex”Gather at XYZ location and attack anyone who disagrees with our Ideology. Lets show them who’s in charge. #TakeOverXYZStreet” 
  • Preventing Incitement to the Commission of any Cognizable Offence:  Ex, “We need more recruits for our terrorist organization. Join us in our mission to bring destruction to India. #JoinXYZTerrorGroup” 
• The blocking procedure is outlined in the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009. 
  • Identification of objectionable content that falls under the grounds mentioned in Section 69A. 
  • The competent authority issues a reasoned order, justifying the blocking decision. 
  • The order is served to the concerned intermediary/platform hosting the content
  • Notice is provided to the originator of the content, explaining the reasons for the blocking decision. 
  • The intermediary/platform receives the order and notice. and takes necessary steps to disable or remove access to the objectionable content. 
  • The intermediary/platform may choose to challenge the blocking order before the relevant authority or court. 
  • Failure to comply with the order may lead to penalties or liabilities for the intermediary/platform. 
  • The content remains blocked until further action is taken by the competent authority or court. 
  • Any affected party, such as the originator or the intermediary, may seek legal remedies to challenge the order. 
• Penal Provisions: Imprisonment for up to seven years and a fine. 

Concern raised over the Judgement:

• Undermining Free Speech and Expression: The judgment is seen as undermining the fundamental right to free speech and expression. 
  • It allows the state to exercise unchecked power in taking down content on the grounds of the dissemination of false speech.
• Lack of Procedural Safeguards: The High Court’s ruling disregards the importance of providing notice to users whose content is being blocked and fails to convey the reasons for blocking. 
  • In Shreya Singhal vs Union of India, the Supreme Court of India upheld the validity of Section 69A and the Blocking Rules after observing that sufficient procedural safeguards were embedded, such as provision of recording a reasoned order, and providing notice to the intermediary and the originator whose content was sought to be blocked.
• Misuse of “Fake News” Rhetoric: The High Court justified blocking orders based on the spread of “fake news” and “misinformation” threatening public order and state security. 
  • However, these grounds are not valid for restricting free speech under Article 19(2) and Section 69A. 
  • The Supreme Court has repeatedly held that there must be a direct link between the speech and the potential threat to public order.
• Disproportionate Blocking Practices: The High Court rejected Twitter’s argument that Section 69A permits the blocking of specific tweets only. 
  • Instead, it allowed wholesale blocking of Twitter accounts, constituting prior restraint on freedom of speech and expression. 
  • This disproportionate blocking practice restricts future speech and has the potential to create a chilling effect on the freedom of speech of online platform users.
• Erosion of Natural Justice: The judgment subverts the principles of natural justice, which dictate that the affected party should be allowed to present their case to the best of their abilities. 

Conclusion: 

• To protect freedom of speech, it is imperative to strengthen procedural safeguards in the process of blocking content to protect the freedom of speech and expression and uphold judicial precedents established to safeguard freedom of speech.

News Source: The Hindu

DOWNLOAD PDF