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Brief: MEITY says Twitter is bound by Indian law, refutes free speech argument over blocked tweets

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The Ministry of Electronics and Information Technology (MEITY) has come down hard on Twitter Inc.s’ decision to challenge an order, which sought to block over 250 Twitter accounts related to the ongoing farmers’ protest in the National Capital Region. The ministry, in a notice to Twitter, said that there will be consequences for the global micro-blogging platform if it is chooses to not comply with its order.

On Monday, Twitter India blocked specific accounts and tweets belonging to the Caravan Magazine, Kisan Ekta Morcha, Tractor2twitr, Bhartiya Kisan Union (Ekta Ugrahan), actor Sushant Singh, political commentator and author Sanjukta Basu and activist Hansraj Meena among several others. The ministry had issued the order on January 31 under Section 69A  of the Information Technology Act, 2000.

Twitter restored the accounts in a few hours, arguing that the tweets constituted “free speech”. But the government did not budge from its position, since the tweets ‘insulted’ the prime minister and accused him of carrying out a genocide on farmers. It sent a notice to Twitter on February 2, 2021, enforcing its original order directing Twitter to block specific accounts and hashtag with immediate effect. MediaNama has seen a copy of the notice. MediaNama had sent queries to MEITY on Wednesday, and did not receive response. MEITY officials declined to comment.

Timeline of events

  • The IT ministry passes an interim order on the afternoon of January 31, 2021 to block 257 URLs and one hashtag for allegedly spreading misinformation about the ongoing farmer protests, supposedly with the potential to lead to violence.
  • Twitter allegedly sits on the order for nearly a full day, then only imposes block on February 1. By the time Twitter’s advocate appears before the blocking committee, the handles and hashtag were allegedly blocked for only a few minutes.
  • Twitter unblocks accounts on evening of February 1.
  • Twitter replies to MEITY’s orders on February 1, declining to abide by order, saying that it had freedom of speech implications.
  • On February 2, MEITY sends a notice to Twitter over non-compliance with its blocking orders.

Twitter argues for ‘free speech’

When replying to MEITY’s January 31 order, Twitter said that the tweets were a matter of ‘free speech and freedom of the press’ and that there was “insufficient justification” from the government’s end to demonstrate the need for an account level block.

The platform also said that the blocking orders should have been imposed by the central government against individual tweets and not the entire handle, as the latter is excessive and disproportionate.

Twitter is bound by Indian law, tells govt

In response, the MEITY said that Twitter is bound by the laws of the country and orders issued by the government and that the platform cannot have a position from a constitutional or judicial point of view.

  • Govt has no need to provide justification: The ministry also said that there is no statutory requirement to provide a justification or material to the intermediary when passing orders under Section 69A of the IT Act. Since the hastag was “found to be instigating people to commit cognizable offences in relation to public order and security of the State,” Twitter cannot decide the practicality or proportionality of the order, it said.
  • Twitter delayed block: In its notice to Twitter, MEITY has alleged that Twitter did not comply with its order blocking 257 URLs and a hashtag on the platform under, for a full 24 hours. When it did, the URLs and hashtag were blocked only for a few minutes before the tech-giant’s legal representative appeared before MEITY’s committee on February 1.

MEITY also cited Babulal Parate vs State of Maharashtra 1961 and Madhu Limaye vs Sub-Divisional Magistrate 1979 — in which the courts had held the government’s ability to impose broad orders on the public at large, when it cannot distinguish between good and bad actors — to refute Twitter’s supposed argument that the order was “overbroad” or “excessive”.

The MEITY said that as an intermediary under the IT Act, it is bound to follow Indian law and must comply with the order issued by the central government. In case the platform does not comply with the order, consequences shall follow, it added.

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“Section 69A of the Act provides jurisdiction to the Central Government in cases wherein it considers it necessary or expedient to direct an intermediary to block for access for public and or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource if the Government is satisfied that the same is necessary or expedient in order to prevent incitement to the commission of any cognizable offence relating to public order, “ MEITY said.

Defining public order

MEITY told Twitter that it had no “constitutional, statutory or any legal basis whatsoever” to comment on the interplay of statutory provisions of the IT Act with constitutional principles (such as freedom of speech), per its own “limited private understanding”. It said that the government could use Section 69A of the Act to prevent incitement of cognizable offences related to “public order”.

The ministry said that the term “public order” has been subject of intense constitutional debate. It cited several cases, including Romesh Thappar vs State of Madras 1950, Ram Manohar Lohia vs State of Bihar 1966, Shafiq Ahmad vs District Magistrate of Meerut 1989, State of UP vs Hari Shankar Tewari 1987 to  KK Saravana Babu vs State of Tamil Nadu 2008 and others to make its point.

Based on these judgements, the MEITY said that the governments’ effort to block the messages clearly has an adverse bearing on ‘public order’ and that the term should be given the widest possible meaning in order to effectively maintain law and order in a particular domain. Since Section 69A is meant to act as a preventive measure and not a publishing measure, the provision gives the government the power of “pre-emption” on the basis of past events and conduct, the notice said.

Freedom of Press is not absolute

While the government acknowledged that freedom of the press is a fundamental right, it is not absolute and does not mean that it includes the freedom to spread misinformation, cause instigation among people and create a public order situation, the notice said. “It may be noted that the order to curtail access to news and press accounts is, therefore, clearly based on adequate justifiable material with the appropriate authority in this regard.”

It cited Subramanian Swamy vs Union of India 2017, stating that freedom of the press has limitations under Article 19(2) of the Indian Constitution, and that freedom of press cannot be taken as a pretense to disseminate information which may incite violate or affect public order.

Blocking individual tweets is ineffective

The government said that it is not possible to segregate content on the platform at the “tweet level”, and that an order blocking specific tweets would not achieve the intended goal especially when the Twitter handles would “mix provocative tweets/illegal contents with normal content” and that the tweets were shared thousands of times. Further, it said that the URLs identified were identified based on the use of the specific hashtag in question and the tweets related to the hashtag.

“It is not required to differentiate amongst the individual tweets in an account and point out which one is offering and which is not. The very fact that an account is using the hashtag and putting out related tweets, implies that its contribution is prejudicial to public order,” the notice said.

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