Political satire account Wokeflix’s writ petition against the suspension of its Instagram account is infructuous, the Delhi High Court declared. Noting that Instagram had taken down Wokeflix’s account soon after restoring it, the court said that Wokeflix could approach the court again, particularly about the second takedown.
Earlier this year, Wokeflix had moved the Delhi High Court after Twitter and Instagram suspended its accounts. In the hearing on May 17, Justice Yashwant Sharma heard arguments from Twitter who said that the petitions by Wokeflix and another suspended account ‘@Bharadwajspeak’ were not maintainable.
A writ petition is filed for urgent relief in cases where fundamental rights have been violated. This hearing raised an important question of whether writs are enforceable against social media platforms. It also raised the question of whether fundamental rights to freedoms of speech and expression are protected from such platforms.
Twitter argues against the maintainability of the petition
Allowing such a petition would open the floodgates for more such cases: Dr. Abhishek Manu Singhvi, who represented Twitter, argued that allowing the petitions would overburden the judiciary. “I’m not saying they (the grievances) are valid. There’s a whole world out there which has very valid grievances. Question is under (Article) 226 learned single judge or division bench going to handle this till the cows come home. Your lordships will never deal with a small fraction also,” Singhvi said. After opening the doors for petitions like this, the courts would then spend their time creating guidelines on cases where they shouldn’t interfere, he added.
Twitter would not fall under the jurisdiction of a writ petition: Advocate Sajan Poovayya who also represented Twitter argued that a writ petition cannot be enforced against Twitter as it is a private entity providing a voluntary service. According to Poovayya, action can be taken against an intermediary only in the following ways:
“Let us assume my lord that an intermediary X is bound to follow the set of rules issued under the IT Act. The intermediary breaches the rules. Two consequences follow:
i) The Union ministry can inform the intermediary saying that the safe harbour under Section 79 (Of the IT Act) is gone. I will not treat you as an intermediary anymore, I will treat you as the author of the data and therefore I will prosecute you.
ii) From a user’s perspective who is a citizen of the country and is using the platform to communicate, the user’s contract with the platform is that the platform will provide him the service without any editorial control, allow him to say whatever subject to certain conditions. Platforms have the protection saying that the user will not sue me, the platform, for something that has happened because I am only an intermediary, the user will sue the ultimate recipient or the ultimate author protection. Now if the platform breaches the intermediary regulations, this protection goes and the user can sue the platform.”
Citing examples of regulations imposed on banks and hospitals, Poovayya also argued that writ petitions can only be filed against the State, directing it to ensure private entities are complying with a law.
“For example, the nursing act in a particular state or hospital registration act in a state saying that all hospitals and dispensaries must register, medical waste must be disposed off in a particular manner, no pre natal sex determination tests, etc. A writ petition against the discharge of functions by a private, voluntary entity may not be sustainable. However, a writ petition could be moved against the health department saying that you have to ensure that the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act is followed in your state,” he said.
Twitter’s view on when writ petitions can apply to it
Singhvi laid down five potential scenarios where writs may be applicable:
- If Twitter or its subsidiary in India discharges public functions: Referring to a ruling of the division bench of the Bombay High Court in a case against Facebook blocking a page, Singhvi said it was established there that a similar service was not a public service
“There is a confusion with numbers and other sovereignty. Confusion with numbers and public function. Ipso facto and ipso dure due to the fact that numbers are large, therefore it becomes public function. If so factor and if so the numbers are large, so it becomes sovereign function,” he said.
- If Twitter is under a positive obligation to discharge someone’s rights: Singhvi said that the writ petition is not enforceable against Twitter as it is not under an obligation to discharge someone’s rights. He cited an earlier judgement of the Supreme Court and said that it has been established that for writs to be enforceable, not only should the citizen have a right but also the other party should have a positive obligation to fulfill that right.
- If Twitter discharges sovereign functions: Twitter is not a sovereign or quasi-sovereign body, Singhvi said. “They are supposed to be fighting authority so many places there’s no question of sovereign function in any remote way,” Singhvi said.
- If Twitter is subject to any regulation: Singhvi challenged this scenario itself saying that there may be no areas of life that are not regulated by a statute. Thus, if the writ petition is allowed on these grounds, the courts will be overburdened, he argued.
- If Twitter was a state-sanctioned monopoly: Twitter was not a monopoly, Singhvi said, as Facebook, Instagram, and Koo were very viable alternatives to it.
The petitions, specifically in the case of the ‘Bharadwajspeaks’ account suspension, do not fall under any of these scenarios, Singhvi argued.
Other cases challenging actions taken by social media platforms
Aarti Tikoo’s petition: Earlier this year, journalist Aarti Tikoo had moved the Delhi High Court after Twitter locked her out of her account for violating its hate speech policies.
Sanjay Hegde’s petition: In 2020, Senior Advocate Sanjay Hegde moved the Delhi High Court after Twitter suspended his account for retweeting a poem.
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