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Interview: Gautam Bhatia on reforming Section 69A and whether Twitter has discretion on blocking orders

Twitter blocked government order

Twitter has an obligation to follow Indian law, but it also has to make its own assessment on whether an account or tweet is indeed breaking Indian law, said Gautam Bhatia, a lawyer and constitutional expert. In an interview to MediaNama, Bhatia called for reforms to Section 69A of the Information Technology Act: he proposed that the government be forced to get judicial orders for every blocking order it issues, and for such orders to be made public for open scrutiny.

Bhatia said that Twitter needed to assess blocking orders to see that they are justified, and inform the government that it has got the law wrong. It is quite possible for the government to get the law wrong, not out of incompetence, but deliberately for its own interests when it comes to “anti-government tweets”, he felt.

Bhatia’s comments come in light of the ongoing standoff between Twitter and the Indian government — the latter has been critical of the social media company for refusing to block accounts and tweets related to the farmer protests. Twitter initially announced that it had suspended only around 500 accounts, and refused to block accounts of politicians, activists, journalists and media entities. Nonetheless, Twitter’s initial refusal to comply with the orders has given rise to much debate on how blocking orders should be issued, and whether Twitter (or any social media platform) has a say in the matter at all.

Below are excerpts from the conversation. Please note that the language has been edited slightly for clarity and brevity.

Does Twitter have discretion?

MediaNama: Under Section 69A, are there any circumstances where Twitter can refuse to block accounts or particular tweets?

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Gautam Bhatia: Twitter can say that, in its view, the request doesn’t comply with Indian law. With that Twitter takes the risk of a court finding out the contrary.

MediaNama: In the notice that the ministry sent to Twitter, the company was essentially told that it does not have the right to decide the legality or constitutionality of any orders the ministry issues. So, does Twitter really have any right to ascertain the legality, and hence choose to refuse to comply?

Bhatia: It’s not a question of Twitter’s right. Basically, Twitter has an obligation to follow the law. For example, tomorrow I tweet something completely innocuous and the government issues a notice to Twitter saying ‘block the account for this tweet because it affects national security’. So Twitter has to apply its own mind, and say that the tweet does not affect national security.

It is quite possible that the government gets the law wrong. In fact, given that the government’s own interests are involved when it comes to anti-government tweets, it is more than likely that the government will often get the law wrong, not just because of incompetence or as a mistake, but because it wants to get the law wrong.

In that case, — this is not about rights — Twitter needs to assess the situation, keeping in mind whether the government’s request is justified under Indian law or not. And, if it’s not justified, then Twitter should — as it has done in this case — of its own assessment, unblock those accounts and then inform the government that in its view, the government has gotten the law wrong. And then, if the government wants to pursue remedies, it can do so under Section 69A and provisions under it.

MediaNama: The government seems to not be mandating the enforcement of the blocks it had initially ordered. In case that hadn’t happened, what do you think the government could have done? Could the government have blocked the Twitter platform entirely?

Bhatia: Technically, it can block Twitter and the company can take it to court. In that case, the government’s initial request would be scrutinised by the court. Also, the government’s move of blocking Twitter would be scrutinised by the courts as proportionate or not. Of course, there is a caveat that Indian courts in the last few years are not known for fighting against the government. With that caveat, this is what would happen in a well-functioning system, given what the law looks like in India.

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Need for transparency, reforming Section 69A

MediaNama: In the last few days, there has been discussion about reforming Section 69A. One of the things everyone is talking about is releasing blocking orders in public domain. Do you think, on the basis of what we know, the orders were in compliance with what was expected from the implementation of Section 69A, as established in the Shreya Singhal judgement?

Bhatia: In my view, Section 69A makes it very clear that you have to make [the orders] transparent. Section 69A says that you have to have the right to challenge an order in a writ petition in the high court. You obviously can’t do that if you don’t have access to the full order, which is in violation of the judgement.

MediaNama: Speculatively, is that probably why the government has not chosen to take this issue to court, knowing that it might have to hear something it doesn’t want to?

Bhatia: That, I can’t say. But the court has the habit of not complying with its own judgement when it becomes inconvenient these days. I don’t think a fear of the courts — of course, I can’t read the mind of the government — prevented the government from taking further action.

MediaNama: We have spoken about the Shreya Singhal judgement. In continuation, what changes would you like to see in Section 69A that would bring more accountability into the whole process?

Bhatia: Basically, a blocking order has to come after judicial order. You have to go to court, justify what law has been violated by that specific account or accounts, given the account holder a chance to justify themselves. Only after that, should the government have the power to block. In emergency cases, government can preemptively block, but there should be limit of 48 hours or something for that and you should have to get a judicial order before that.  We need to basically ensure that the cost of censorship is increased. Right now, the government orders blocking and then arm-twists.

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MediaNama: If one were to play the devil’s advocate, do you really think making blocking orders public will be helpful? We see how internet shutdowns are a fact of life, and the orders are out in the open. What’s to stop the government from issuing blocks like it does now?

Bhatia: You can’t stop that, because there are a number of connected issues that are allowing for the government to get away with bad faith decisions. But those are different battles. So reforming the judicial system and making courts more cognizant of personal liberty, and making the courts less pro-government, is a structural kind of fight that will go for a long time. That shouldn’t stop other moves from being taken. It’s not that the gain in transparency is useless, but to make it useful you have to also have gains in other domains, which are ongoing struggles.

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