A recent order of the Delhi High Court (“court”) in the Tanul Thakur v Union of India case has done something unprecedented. It has granted the petitioner Tanul Thakur (“Thakur”) a post-decisional hearing and copy of the blocking order pertaining to his blocked website www.dowrycalculator.com. For years, commentators have complained that the website blocking process carried out under the aegis of Section 69A of the Information Technology Act, 2000 (“Section 69A”) completely excludes website owners (“originator”). Now a new day appears to be dawning.
But there is still much to be done in this case. The court is yet to rule on the merits of the law regarding website blocking as it applies to originators. I suggest ways in which it could do so. And ways in which other courts faced with aggrieved originators can adjudicate on the merits of website/content blocking.
My main contention is that the court should quash the impugned blocking order because the blocking process followed by the government is not in compliance with the law as laid down in Shreya Singhal v Union of India (“Shreya Singhal”). Despite what many may believe, Shreya Singhal did change the law on website/content blocking.
Specifically, after Shreya Singhal, Section 69A read with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009 (“Blocking Rules”) must incorporate the following safeguards into the blocking process – notice, hearing, access to blocking order and right to appeal. These safeguards – which apply not just to intermediaries but also to originators -were not incorporated into the blocking process that culminated in the blocking of www.dowrycalculator.com sometime in 2018.
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How Shreya Singhal Changed the Law on Website/Content Blocking
A commonly held view is that (i) the executive centric nature of the blocking process rooted in Rule 8 of the Blocking Rules and (ii) the secretive nature of the blocking process rooted in Rule 16 of the Blocking Rules were left virtually untouched in Shreya Singhal.
But in fact Shreya Singhal (i) diluted the centrality of the executive to the blocking process and (ii) diluted the secretive nature of the blocking process.
Unfortunately, the blocking process followed by the government does not reflect these changes in the law on blocking. That is why it is crucial for the court to ensure that the law is no longer more honored in the breach than the observance.
How Did Shreya Singhal Dilute the Centrality of the Executive to the Blocking Process
The blocking process involves the following steps – first, complaints/requests for blocking are sent to nodal officers of various ministries. Second, these complaints are forwarded to the designated officer (“officer”) of MeitY. Before Shreya Singhal, this officer had a choice provided by Rule 8 of the Blocking Rules – contact the originator or intermediary in question to come before the Committee for Examination of Requests (“committee”).
But in para 110 of Shreya Singhal the Supreme Court clearly introduced a change. It said that henceforth if an originator can be identified “he is also to be heard” by said committee. The Supreme Court doubles down on this change in para 116 wherein it clearly states that the “originator and intermediary” have to be given a hearing. This means that now the officer no longer has a choice when s/he receives complaints from the nodal officers of various ministries – s/he has to reach out to both the originator and intermediary in question to come before the committee.
This is significant. Simply having a pre-decisional hearing for intermediaries may not represent much of a challenge to the executive as “naturally, intermediaries are bound to be far more interested in avoiding confrontations with the government, and in self-preservation.” But originators have no such business interests to worry about, they don’t have the same pressures constraining them. They can thus offer a more sustained challenge.
There is another way in which Shreya Singhal diluted the centrality of the executive – it provided for appeals to blocking orders. “The Rules do not provide for an appeals process” to challenge the diktat of the executive. But Shreya Singhal clearly says in para 109 that the Blocking Rules “may be assailed in a writ petition under Article 226 of the Constitution.” Thakur’s writ petition also recognizes and relies on this check on executive power incorporated into the blocking process because of Shreya Singhal.
How Did Shreya Singhal Dilute the Secrecy of the Blocking Process
As indicated above in para 109 Shreya Singhal clearly empowers originators to file a writ petition to challenge blocking orders. This in effect means that originators have to be provided with a copy of the blocking order. Because they cannot exercise their right to challenge a blocking order without knowing the grounds of challenge contained in the blocking order itself.
Thus, the change in the law on website/content blocking brought about by Shreya Singhal is clear. So the court should strike down the impugned blocking order for failing to comply with the updated procedural safeguards outlined in Shreya Singhal. It should also declare that Rule 16 is “unconstitutional insofar as it extends to persons directly aggrieved from any orders passed under Section 69A…being owners/creators…of the blocked content.”
How Can the Blocking Process be Improved Further Going Forward
Nonetheless, the Shreya Singhal judgment is not perfect. For instance, doubts about the scope of the “reasonable efforts” that the officer has to make while contacting an originator, contained in Rule 8 of the Rules, remain. It is the case, as many have pointed out, that the government may simply assert that while the officer made reasonable efforts to contact the originator, they could not be identified. Shreya Singhal does not provide a solution to this problem.
Here are some possible solutions:
1] Courts faced with aggrieved originators should assess on a case-by-case basis whether reasonable efforts have been made by the officer to contact the originator. One way to do so is by examining the “complete record of the request received and action taken thereof” which has to be maintained by the officer as per Rule 15 of the Blocking Rules. As Thakur’s writ petition suggests, if reasonable efforts have been made it should be reflected in the record. If it is not so reflected, courts should strongly consider quashing the impugned blocking order before them.
2] Intermediaries who are contacted by officers under the aegis of Rule 8 of the Blocking Rules should notify originators of possible blocking of their content and details of pre-decisional hearing to be held. It would help if courts clarified that such notification is within the bounds of Rule 16 of the Blocking Rules.
3] The government can step in here as well. It has already taken a positive step in the IT Rules 2021 by requiring significant social media intermediaries to notify users about terms of service violations. It can extend this safeguard by permitting/requiring such intermediaries to notify users about blocking requests issued under the Blocking Rules. So users can attend the pre-decisional hearing and realize their due process rights provided for in Shreya Singhal.
Thakur’s writ petition relies heavily on Shreya Singhal. Not the misperception, but the correct interpretation of Shreya Singhal. The court should do the same. Going forward other courts faced with aggrieved originators should also rely on the correct interpretation of Shreya Singhal.
While Shreya Singhal improved the blocking landscape it nonetheless failed to plug several gaps in the blocking process. The court can begin to do so. It can for example set a precedent for assessing ‘reasonable efforts’ made by the officer to contact originators – by calling for the record maintained by the officer in Thakur’s case. It can also frame guidelines outlining a sound process for identifying originators.
The government can also amend the Blocking Rules to provide clarity to terms such as “reasonable efforts.”
Sachin Dhawan (Senior Advisor, AP & Partners) and Ronika Tater (Associate, AP & Partners)
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