“Platforms must respect the fundamental rights of the citizens and should not take down the account itself… taking down the whole information or the user account should be a last resort and the platform may at all times, endeavour to guard the users’ fundamental rights by following the principles of natural justice and afford reasonable time and opportunity to the user to explain his stand,” the Ministry of Electronics and Information Technology (MeitY) said in an affidavit filed before the Delhi High Court on March 30.
The Delhi High Court was hearing a plea by political satire handle Wokeflix challenging the decision made by Twitter and Instagram to suspend its accounts in November 2021 and January 2022 respectively. While Instagram has since reinstated the account, Twitter continues to keep it suspended.
In addition to the Wokeflix case, the Delhi High Court is hearing half a dozen other cases related to the suspension of accounts by social media platforms including that of @Bharadwajspeaks, @Suyashdeep, and @MeghBulletin, and the matter has been listed for April 13 for final disposal, Bar and Bench reported.
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Twitter, Instagram acted in violation of IT Rules 2021 by not issuing prior notice
- Twitter, Instagram should have provided prior notice to users and an opportunity for redressal: In its affidavit, MeitY pointed out that intermediaries can take action against content and user accounts based on any of the stipulated circumstances mentioned in rule 3(1)(b) of the Information Technology (IT) Rules 2021, which were notified in February last year, and claim immunity for such actions. But if a significant social media intermediary (SSMI) like Twitter and Instagram is taking down content or suspending an account based on rule 3(1)(b), then according to rule 4(8), the intermediary must provide prior notification to the user explaining the action being taken and the grounds or reasons for taking such action, the affidavit explained. Additionally, SSMIs must provide the user with an adequate and reasonable opportunity to dispute the action being taken by the intermediary and request for the reinstatement of access, the affidavit pointed out.
- Unless the gravity of the information warrants otherwise: Sometimes, depending on the nature and gravity of the information being taken down, SSMIs can decide to take down content before issuing any notice, the affidavit said. “In certain scenarios such as rape, sexually explicit material or child sexual abuse material (CSAM), bot activity or malware […] the intermediary may not find it prudent to inform the user prior to taking down their information. Thus the crucial criteria for determining whether a prior notice is required to be issued or not will determine on the risks that a prior notice could create. When a notice can create more risks for the complainant or if the content relates to the special cases (mentioned above) then the platform may defer issuance of prior notice,” the affidavit stated. The same has been clarified in the FAQs issued by MeitY with respect to the IT Rules, the affidavit said.
- Content cannot be modified or edited suo moto by an intermediary: MeitY pointed out that “there is no provision under which information can be edited or modified before transmission suo moto by an intermediary.”
- Failing to adhere to the above is a violation of the IT Rules: “Thus, except for the exceptional circumstances which have been clarified in the FAQs, an SSMI is expected to issue prior notice to the user before taking any action on the user account. If an SSMI fails to comply with the above, then it may amount to a violation of these IT Rules 2021, [and] Rule 7 of the IT Rules, 2021 deals with ‘Non-observance of Rules,’” the affidavit stated.
- Users can seek actions against the platform for violation: In case an SSMI violates the IT Rules, the aggrieved user can invoke rule 7 of the IT Rules, 2021 and seek action against the platforms by initiating appropriate proceedings as per law, the affidavit said.
Take action proportionate to the violation
“If only some portion or few contents are unlawful then the platform may take proportionate action of removing such alleged information alone and not completely suspend the user account,” MeitY said in its affidavit. “[…] Only in cases where the majority of the contents/posts/tweets in a user account are unlawful, the platform may take the extreme step of taking down the whole information or suspending the whole account,” MeitY said.
When else can an account be suspended or deplatformed?
In its affidavit, MeitY laid out the following circumstances under which an account can be suspended or deplatformed:
- Government orders: If the account is required to be blocked in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above and based on the orders of the Government or the court following the process mentioned under Section 69A of the IT Act, 2000 which specifically addresses these issues for which well-defined rules are framed. This also includes accounts that are unlawful and prohibited under the extant law in force based on the orders of an appropriate government or its agency.
- Court orders: If the court orders the account to be blocked for any reason including if the account is grossly unlawful and has content such as rape, sexually explicit material or child sexual abuse material (CSAM), bot activity or malware, terrorism-related content.
“Thus, except in cases where there is a direction by the government or order of the court, in the circumstances enumerated above, wholesale suspension of a user’s account is against the spirit of Article 14, 19 and 21 of the Constitution of India,” the affidavit states
Platforms must be held accountable for supplanting fundamental rights
In its petition, Wokeflix had alleged that Twitter’s actions are arbitrary and violative of various provisions of the Constitution of India including Articles 14, 19 and 21. Taking this allegation into account, MeitY said:
“SSMIs must be held accountable for subjugating and supplanting fundamental rights like the right to freedom of speech and expression, otherwise the same would have dire consequences for any democratic nation. It is humbly submitted that liberty and freedom of any individual cannot be waylaid or jettisoned in the slip stream of social and technological advancement.“ (emphasis ours)
Furthermore, MeitY said that “the bulwark of our constitution is a system of checks and balances, ensuring the accountability of all institutions in India’s democracy” and if any company “is allowed to go unchecked or unregulated under the legal framework, then it can act on its own whims and fancies, thereby defeating natural and inalienable rights.”
Principles of natural justice were not adhered to
In its petition, Wokeflix alleged that it was not provided with an opportunity to prove its stand pertaining to its posts on Twitter or an opportunity to establish the fact that those posts were not against any of the guidelines of the platform.
In response to this, MeitY said that:
“The allegations that the principles of natural justice were not adhered to before depriving an individual citizen of his fundamental right, especially one as sacrosanct, basic and inviolable as the right of freedom of expression on a platform specifically intended for dissemination and expression of public views, is contrary to the tenets of the Constitution of India.”
MeitY is the custodian of users’ fundamental rights in the cyberspace
“MeitY is the custodian of the users’ fundamental rights enshrined under the Constitution of India in the cyber space [and] expects the platforms to conform to the Constitution of India and observe the principles of natural justice by affording due notice or opportunity to the user before taking any action,” the affidavit stated.
What is MeitY’s approach to framing internet regulations?
In its affidavit, MeitY also laid out the following principles based on which it frames internet regulations:
- Internet should be Open, Safe & Trusted
- Platforms to be accountable to the users
- No platform or intermediary will be allowed to infringe upon the citizens’ rights including but not limited to Articles 14, 19 and 21 guaranteed under the Constitution of India under the guise of violation of the platform’s policies unless it constitutes a violation of extant law in force.
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