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“Indian Laws Should Be Dictated by the Constitution”: Pranesh Prakash on Twitter’s Challenge to 39 Blocking Orders

Interview with Pranesh Prakash on whether the micro-blogging site could have done more than simply contesting 39 Blocking Orders under India’s IT Rules

Last week, Twitter challenged the legality of 39 Blocking Orders issued by the government under Section 69A of the Information and Technology Act, 2000 (IT Act). Its main bone of contention: the Orders were ‘substantively and procedurally deficient’, and at times, amounted to a ‘gross violation’ of free speech that citizens of the platform enjoy. Twitter seeks the quashing of the Orders. 

Some commentators have described Twitter’s petition as a significant, if not unprecedented step toward protecting free speech online and Fundamental Rights. 

However, while acknowledging Twitter’s initiative, some have also noted that the microblogging platform could have done much more to uphold free speech: after all, its petition is confined to the narrow scope of 39 potentially illegitimate Blocking Orders. In the meanwhile, pending questions surrounding the legality of opaque Section 69A Orders remain unchallenged. So do inquiries into whether these Orders are compliant with the Supreme Court’s 2015 optimistic interpretation of Section 69A in Shreya Singhal v Union of India, where it upheld the provision. 

As these key questions lie unanswered, the freedom of speech that Indians enjoy online—or indeed anywhere—hangs in the balance. So, could and should Twitter have really challenged more than 39 Orders in its petition? What are the deficiencies of Indian IT laws that citizens and companies alike should be aware of and concerned about? And, on what basis should these laws be judged and amended?

MediaNama spoke with Pranesh Prakash, Co-founder of the Centre for Internet and Society and Affiliated Fellow at the Information Society Project, Yale Law School, for answers to these questions central to the protection of our Fundamental Rights.

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MediaNama: Twitter’s petition has been welcomed for challenging certain unspecified and ‘deficient’ government Blocking Orders. However, could it have challenged something more than the Orders—such as the law underlying it?

Pranesh Prakash: I don’t think it’s a bad thing that Twitter is challenging only the legality of the Orders that they received. That’s at least a good first step.

Twitter certainly could challenge the law, but I’m not sure how exactly that would be helpful in this case. Twitter’s case rests on a much easier argument of the government not complying with the specific law that it has laid down. 

However, I do believe that there are grounds to challenge the law itself. 

For example, there is a disjunct between what the law lays down under Section 69A, the Rules the provision operates under, and what the Supreme Court ruled in Shreya Singhal

In Shreya Singhal, the Supreme Court upheld Section 69A. The Judgment assumes that Blocking Orders being made public is one of the built-in safeguards that ensure that Section 69A will not be misused by the government [this facilitates public transparency on what kinds of content are taken down in India and when, and allows them to be challenged on legal grounds]. However, Rule 16 of the rules to implement the provision establishes a confidentiality requirement—that prohibits intermediaries from making the Order public. [Now, despite the Judgment, Orders are still issued under confidentiality].

So, the Court said that Section 69A is constitutional, in part, because the Orders are public—even though such Orders still aren’t publicly available. This is a clear legal challenge that needs greater clarity from the Supreme Court itself or from High Courts.

There’s also a disjunct between what’s laid down in Section 79, Rule 3 of the IT Act, 2000, and the analysis again in the Shreya Singhal case, which does not analyse the provision at all [the provision lapses safe harbour if an intermediary abets the unlawful content, or fails to comply with a takedown order.] 

So, there are many problems in the current state of India’s IT laws that Twitter could have addressed. But, I’m glad that it’s at least doing this.

MediaNama: Have there been any other instances when IT companies in India have questioned the legality of government Orders in Court?

Pranesh Prakash: I know of only three instances in which companies in India have gone to Court, or legally pushed back, against governmental orders. 

The first is Yahoo! India, which in 2011 challenged the Controller of Certifying Authorities (CCA) requests for user data [for ‘national security purposes’]. They were fined [₹ 11 lakh by the CCA] for failing to provide it. They then went to Court to challenge that fine and the CCA’s claims that it had not handed over the data. 

Then there’s the case of WhatsApp last year, which challenged the IT Rules, 2021—which required it to essentially break end-to-end encryption and compromise privacy for traceability purposes.

Then there is this current case of Twitter. Other than these, I don’t know of other situations where companies have actually gone to Court to safeguard user rights. This is despite the fact that companies are in Court all the time in different parts of India—but that’s usually to escape liability themselves. 

So, this kind of situation where a company is actually standing up for user rights is highly unusual. I’m glad that Twitter’s taking this step.

MediaNama: Why have companies, whether from India or abroad, refrained from defending user rights in Indian Courts?

Pranesh Prakash: There could be many possible reasons and I certainly can’t read what’s in their mind. 

But, one potential legalistic reason is that many companies have earlier argued in Court that the Indian entity is not responsible for [moderating] content. 

This was a strategy used by Yahoo! in France when it faced a lawsuit to prohibit Nazi memorabilia from being sold and discovered on its services. At the time, Yahoo! claimed that it was an American company and not subject to French jurisdiction on the matter. Yahoo!’s [legal] strategy was to have separate entities in different countries to limit their liability in each country. [The argument was] That while a French Court can order Yahoo! France to ban this kind of content, it can’t order Yahoo! USA or Yahoo! India or any other Yahoo! entity to do so.  

Companies like Google have used an opposing strategy, saying that a US-based entity is the one that’s providing services. So, India, for example, wouldn’t have jurisdiction over its actions. 

Perhaps these legal strategies account for some of the differences. But, I’m not convinced that that’s the main reason. Perhaps they just didn’t want to antagonise the Indian government. 

MediaNama: And why don’t Indian companies challenge the constitutionality of Indian laws in Court?  Are Indian companies treated differently when they bring these kinds of challenges to the Court compared to a foreign entity?

Pranesh Prakash: We don’t know whether they get treated differently. That’s because I don’t know of any instances where Indian companies have done this.

There’s also the fact that legally, there’s not as much of a distinction between Indian and foreign IT companies anymore. Now, both Indian companies and foreign companies have the legal requirement of having a Compliance Officer and Grievance Officer based in India [under the IT Rules, 2021]. So, an employee of a foreign company in India can directly be held responsible for non-compliance with Sections 79 and 69A. 

Therefore, given that foreign companies also have greater skin in the game as well, why don’t Indian companies pursue similar legal challenges? I have no idea. They should be asked. Perhaps they feel they have never been asked to remove content that was lawful. Perhaps they feel they have never been asked to unlawfully reveal user data. 

On the other hand, some social media companies [in India] are building their brands on government cooperation. They appear to pride themselves on cooperating more with the Indian government to remove content, and to provide greater access to data to law enforcement agencies. So, perhaps they see these qualities as something that sets them apart. Not standing up for user rights may be good for their business, perhaps, because it pleases the government more. 

For some companies, these might be considerations. Otherwise, I don’t really know why Indian companies don’t do as much to stand up for user rights.

MediaNama: Of late, Senior Ministers at the Ministry of Electronics and Information Technology have been increasingly clear that Indian laws cannot be dictated by companies from the Bay Area. In short, foreign companies operating in India must comply with Indian laws. How do you respond to this line of thought?

Pranesh Prakash: That’s absolutely correct. Indian laws should not be dictated by what someone in the Bay Area says. But, Indian law should be dictated by what the Indian Constitution says. 

The Supreme Court, in the past, has found that laws passed by the Indian government relating to Internet censorship do not comply with the Indian Constitution. So, when foreign companies and Indian NGOs, policy experts, and lawyers are concerned about Indian laws, it’s not because they fail to comply with the First Amendment or the desires of people sitting in Silicon Valley. It’s because they fail to comply with Indian law and the Indian Constitution.

MediaNama: Now, Section 69A was upheld a few years ago in Shreya Singhal. But, given what we’ve seen with the challenges to Orders made under it, how should the provision be amended? Assuming some cases of blocking are legitimate, how do we ensure accountable, transparent use of the provision? How do we ensure that it is implemented in line with the reasoning laid out in Shreya Singhal?

Pranesh Prakash: As I mentioned earlier, the Shreya Singhal Judgment assumes that Blocking Orders are public and can be challenged effectively—it assumes that that legal space exists. The truth is, these orders are not public, and they can’t be challenged effectively. 

One way of looking at this is that Shreya Singhal misconstrued the law. Another way of looking at it is that the law has not been amended, keeping in mind the precedent of Shreya Singhal. Rule 16, which is the rule imposing confidentiality, continues to exist and continues to be followed. 

In my opinion, this is purely unconstitutional because it doesn’t allow for natural justice. It doesn’t allow for the other side to be heard adequately, because in some cases, the people whose content is being affected are not provided hearings at all. We know of MPs in India whose accounts are still blocked—without the government having provided any public or official justification whatsoever for why they were blocked. 

How, in a Constitutional Democracy, can we allow for this situation? We cannot live in a state where the government has the power to ban something, but does not need to provide any justification for such a ban—this goes against the assumption of the Shreya Singhal Judgment. These Orders do not make it clear as to why something is banned, under which law it is being banned, or what provision of the law that speech actually violates. They are not legal.

So, I’d argue that you need to publish all Blocking Orders, and within them specify why the content is being blocked and what provision of the law it violates. We should also publicise the deliberations that went into such a decision, the minutes of the meeting, and what evidence was provided to justify the blocking. All of this information should be made public.

Apart from that, there’s also the question of time limits—how long should the information be blocked? There is no provision accounting for temporary or permanent blocks in neither Section 69A nor the Rules.

The standard laid down in Shreya Singhal—which is of imminence—plays a role here. For example, something online could very easily be an imminent threat to public order at one point in time, without being as much of an imminent threat at a later point in time. In a powder keg situation, that content could legally be blocked. However, once that powder keg situation has disappeared, it might not be as threatening anymore, even as it remains blocked.

So a periodic evaluation of blocked information needs to be introduced in the Rules. 

Apart from these two issues, there are no clear guidelines as to necessity and proportionality under these Rules. They don’t specify when something may legitimately be blocked. Rather, they just give people the power to block for a set of reasons, without a threshold for doing so. So, because necessity and proportionality don’t play any role in these Rules, I would say that they need to be amended to include provisions on this front as well.

In my opinion, a number of new changes need to be brought into the Rules to make them comply with international best standards—such as the International Covenant on Civil and Political Rights—as well as the Indian Constitution and how it’s been interpreted by the Supreme Court in free speech cases.

MediaNama: Finally, with these Orders and other proposed IT laws, which direction do you see India headed in when it comes to free speech online? How do we compare globally with other countries when it comes to blocking laws? Are we inching toward a reflective, ring-fenced approach, or towards an authoritarian one?

Pranesh Prakash: The dichotomy between authoritarian states and democratic states is too simplistic. In my opinion, many of the laws passed in Germany when it comes to monitoring speech online can easily be called authoritarian.

That being said, Indian laws on these issues are terrible. I have laid out a number of reasons as to why that’s the case so far, but that’s only while speaking of Section 69A—on Section 79,  there’s a whole lot more to be said. 

But, let me also point out that India is not an outlier. It might have been an outlier in 2011. But, increasingly more and more countries are following in India’s footsteps and are seeking to bring in worse laws that, in my opinion, do not uphold freedom of expression and do not strike a good balance between free speech and combating hate speech, terrorism or misinformation. India is not doing well, but it has more and more company on this front.

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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I'm interested in stories that explore how countries use the law to govern technology—and what this tells us about how they perceive tech and its impacts on society. To chat, for feedback, or to leave a tip: aarathi@medianama.com

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