“Twitter, Inc. challenges certain blocking orders or parts thereof issued by the Respondents [Indian government] under Section 69A of the Information Technology Act, 2000 [IT Act] (..) To date, the Petitioner has complied with the orders under protest,” read the opening lines of Twitter’s writ petition submitted before the Karnataka High Court on July 5th, 2022.
The petition, which was reviewed by MediaNama, seeks to quash 39 Blocking Orders from the Ministry of Electronics and Information Technology (MeitY) for being ‘substantively and procedurally’ non-compliant with the government’s blocking powers under Section 69A of the IT Act, 2000. Alternatively, it suggests that the Union government specify explicit tweets that violate Section 69A for blocking, as opposed to revoking accounts entirely.
The petition claims that the blocking of certain accounts and tweets—including of politicians, activists, and journalists—was not necessary in the interest of “public order”, as described under Section 69A. It further questioned the Union’s “non-application of mind” when discerning whether content on Twitter posed an imminent threat to public order or not. The Orders’ deficiencies at times amounted to a “gross violation” of the Right to Freedom of Speech and Expression that “user-citizens” of the platform enjoy.
MeitY ordered the blocking of 1,474 Twitter accounts and 175 tweets between February 22nd, 2021, and February 28th, 2022, according to the petition. The details of the challenged orders have been submitted to the Court in a sealed cover, as per the confidential nature of Blocking Orders, described in Rule 16 of the Blocking Rules, 2009.
Why it matters: As commentators have noted, Twitter’s legal challenge may mark a significant step by a foreign private entity towards advancing free speech for Indians online. However, its parameters are narrowly drawn and restricted to 39 specific Orders. Meanwhile, the overarching concerns over the constitutionality of Section 69A and the IT Rules, 2021, remain unchallenged—resulting in a murky future for free speech at large.
The microblogging site has been at odds with the Union for not complying with India’s 2021 IT Rules since last year. The Ministry gave Twitter an ultimatum last month to either comply with its pending Blocking Orders or lose its safe harbour status. Twitter complied in both cases eventually.
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‘MeitY did not provide notice to users’
Twitter contends that the challenged Orders should be set aside for non-compliance with Rule 8(1) of the Blocking Rules, 2009. According to the petition, no prior notice was provided to the user whose account was being blocked, nor was an opportunity for a hearing provided. It added that several of these accounts were of “identifiable public figures”.
Rule 8(1) of the Blocking Rules, 2009, directs the Designated Officer—the officer responsible for issuing Blocking Orders—to issue notice to the person or intermediary who hosted the “offending” violation before the Order is passed. This prior notice allows the entity responsible to submit a reply and any clarifications on the content. In Tanul Thakur v Union of India, the Delhi High Court also issued an Order in May 2022 that post-decisional hearings should be granted to the “originator” of the content under the Blocking Rules, 2009.
The petition added that one of the reasons the Supreme Court upheld Section 69A in the landmark Shreya Singhal v Union of India (2015), was because it believed that it had “sufficient safeguards” in place to protect users from unreasonable free speech restrictions and prevent government misuse—such as prior notice.
It argues that the Blocking Orders are ‘not sustainable’ and removing tweets or accounts without providing notice to the user violates the Supreme Court’s decision.
‘Blocking orders are unconstitutional’
The petition interprets Section 69A to say that there should be a necessary and expedient reason to pass a Blocking Order under the provision. These reasons should be stated in writing in the Order.
The petition states that the reasons for passing Blocking Orders are not provided in most cases in the present challenge. Additionally, the Orders do not indicate why the Order is a necessary restriction on Free Speech (under Article 19(2) of the Constitution, 1950). The petition argues that the Orders are “not in consonance” with the Supreme Court’s upholding of Section 69A in Shreya Singhal on the basis of procedural safeguards, because they fail to provide written reasoning. They should be set aside.
It further claims that Section 69A does not authorise the Union to issue new procedures or safeguards for Blocking Orders that go beyond its scope. The petition says that this limitation indicates the legislature’s intent to ensure that restrictions on speech under Section 69A are “reasonable”.
Blocking Orders lack ‘specific reasoning for account takedowns’, ‘gross violation’ of Article 19(1)
The petition argues that the Blocking Orders merely reproduce the ‘subhead’ of Section 69A in their reasoning, without actually describing how the tweet or account violates it. It notes that this is particularly the case for accounts, which often contain large amounts of information.
It further adds that the content in the challenged Orders, which include journalistic and political content, “squarely” falls under the Right to Freedom of Speech and Expression, guaranteed by Article 19(1) of the Constitution. Blocking such content amounts to a “gross violation” of the free speech “guaranteed to citizen-users” of Twitter. This violation is enhanced by the Union’s failure to provide prior notice to users of Blocking Orders.
The petition refers to past Supreme Court verdicts, which held that restrictions on speech and expression to protect public order, should have “reasonable relation to the object to be achieved.” The petition argues that if the challenged content has no “proximate relationship” to maintaining public order (as listed under Section 69A), then that Blocking Order should be set aside. “Any connection that is far-fetched, hypothetical or too remote in the chain of relation, cannot satisfy the test [of proximity],” it adds.
Petitioners can only challenge a Blocking Order’s validity based on the reasoning it provides—making it all the more important to include it.
Content does not meet blocking threshold of Section 69A
The petition argues that the content sought to be blocked falls under the Right to Free Speech and Expression—and not under Section 69A. It suggests a “non-application of mind” by the Union when it comes to blocking tweets that are written by and for certain groups. “A vast majority of tweets are read by users who wish to consume political or newsworthy content, who are necessarily literate and can reasonably perceive the full context of the content,” it adds.
It also referred to past judicial reasoning that holds that any material considered offensive must be judged by a “reasonable, strong-minded, firm and courageous person, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”
The petition contends that Twitter complied with a MeitY Blocking Order dated April 22nd, 2022—however, on May 18th, it wrote to MeitY’s Review Committee as it did not believe the offensive content fell in the purview of Section 69A. The petition claims that it received no response on the matter, and that no review of the Order was taken under Rule 14 of the Blocking Rules, 2009. It argues that the Orders should be set aside, as they fail to follow the review safeguard.
Blocking Orders for Accounts ‘Disproportionate’
Section 69A, the petition argues, does not extend to blocking entire accounts. This is a “disproportionate” action, especially questionable given the lack of reasoning provided in Blocking Orders. Additionally, the Union has not indicated how flagged content—by politicians, activists, and journalists—will actually disrupt public order, indicating that it poses no imminent danger.
The petition argues that Section 69A provides the Union power to block “information”—defined in the IT Act, 2000, as inclusive of ‘[data, message, text], images, sound, voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche [sic].’ So, the Union can block information that is already available. However, it cannot prevent information from being “generated, transmitted, received, stored, or hosted” by users—which is what would happen if an account is blocked.
Only specific content which falls within the purview of Section 69A “should be blocked”. It adds that entire accounts may be blocked only if the Union has concluded that a user “has created an account solely to violate” the grounds of Section 69A. Sentiments similar to this have been reiterated by the Union in other legal proceedings, in order to protect citizens’ Fundamental Rights.
Additionally, the Blocking Orders specify no time limit for the account’s suspension, nor is there a review mechanism in place to appeal the Order post-issuing.
‘Not the least intrusive method of protecting fundamental rights’
The petition refers to the Supreme Court’s ‘least intrusive means’ test to protect the Fundamental Rights of citizens.
The petition argues that the account-level blocking for the 39 accounts is not the least intrusive method possible for the Union to moderate content. The government has not provided justification for such a drastic step either.
The petition notes that MeitY went on to rescind Blocking Orders for 10 out of 11 accounts flagged after Twitter raised concerns on account-level blocking in late June. This indicates that the government is willing to engage with Twitter even after Orders are passed.
Lowdown on government’s blocking powers under Section 69A
An intermediary is defined as any person that transmits, stores, or receives an electronic record. Twitter is an example of an intermediary.
Further, Section 69A empowers the Union to order intermediaries to block public information available online, in the interest of ‘sovereignty and integrity 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 the above.’
Intermediary non-compliance may lead to fines and/or up to 7 years of imprisonment. It may also lapse an intermediary’s safe harbour status under Section 79 of the IT Act—which protects them from being held liable for unlawful third-party content on their platform.
Corrigendum: The original version of this article noted that the petition was filed on 5th May, 2022. The petition was filed on 5th July, 2022. The article was updated to correct the error on 2/09/2022 at 5:22 pm. The error is regretted.
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