Habitually and ‘miserably’ non-compliant with Indian laws, Twitter is not entitled to seek judicial review of 39 blocking orders issued under Section 69A of the Information and Technology Act, 2000, said the Union government.
In a statement of objections filed in response to the microblogging platform’s recent challenge at the Karnataka High Court viewed by MediaNama, the government seeks the case’s dismissal on grounds of maintainability. Twitter is not an Indian citizen and cannot petition the Courts on behalf of its users for rights violations, argues the Union.
Why it matters: In its writ petition filed before the Karnataka High Court in July, Twitter challenged 39 Section 69A blocking orders for being ‘procedurally and substantively’ deficient. Arguing that the orders grossly violated the free speech of the platform’s ‘citizen-users’, the petition alleged that users were not informed of their accounts being taken down. The petition also suggested that individual tweets be taken down as opposed to entire accounts. While Twitter has indeed been at odds with the Union over non-compliance with the IT Rules, 2021, since last year, the petition marked a lone challenge by a company to the government’s heavily criticised use of the Section 69A provision.
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Arguing that sufficient checks and balances are in place to prevent the misuse of Section 69A, the Union also questioned the motives and timing of Twitter’s challenge.
Describing the petition as a frivolous ‘luxury litigation‘, the Union claims the challenge is nothing more than an attempt to bypass ‘lawful’ and ‘competent’ blocking orders, assert commercial power, and showcase monopoly in the ‘relevant international market’.
The Union also criticised Twitter’s ‘hypocritical’ defence of free speech, arguing that it has often blocked Indian accounts at the global level without issuing notice, causing them ‘severe loss and mental agony’ in the process. It vehemently argued that intermediaries like Twitter cannot act as suo moto arbiters of permissible speech online, as doing so would categorically lapse an intermediary’s safe harbour under Section 79 of the IT Act, 2000. Such determinations are best left to the judiciary or executive, surmised the Union.
The same concern of intermediaries becoming free speech arbiters has been raised by many digital stakeholders in response to the government’s proposed amendments to the IT Rules, 2021. The government has been slow to issue a stance on the matter as explicit as the one recorded in the petition.
The Union alleged that Twitter presented ‘incorrect evidence’ of the 39 blocking orders in its writ petition. It will submit the ‘correct’ evidence to the Court in a sealed cover.
Section 69A empowers the Union government to block public access to information online in the interests of India’s sovereignty and integrity, defence, security, friendly relations with foreign States, or public order. Section 79 acts as a safe harbour clause for intermediaries, exempting them from liability for unlawful third-party content hosted on their platforms.
Twitter A Foreign Commercial Entity, Cannot Be Protected by Fundamental Rights Granted to Indian Citizens: Union
Denying the maintainability of the case, the petition argues that Twitter cannot invoke the High Court’s jurisdiction to challenge the blocking orders as it is a foreign commercial entity with no place of business in the country.
Also, Twitter’s status is that of an intermediary under the IT Act, 2000. As a result, the protections of fundamental rights held under Articles 14, 19, and 21 do not apply to Twitter as it is neither an Indian citizen nor a ‘natural person’ (a foreigner who is not an Indian citizen). Only Indian citizens can move the Court to challenge such blocking orders, the Union argues. Relying on reams of past jurisprudence, the petition adds that foreign companies are not held to be ‘citizens’ in India.
In any case, no ‘artificial person’—or body corporate like Twitter—can claim Article 21 rights to life and liberty even if they are incorporated in India, as this is ‘incongruous with [the] existence of artificial persons’, the petition argues. Even if Twitter could hypothetically claim to be protected by fundamental rights, these rights could still be restricted on the grounds of reasonable restrictions on free speech, or ‘public purpose’, says the petition.
The law may hold that companies can bring questions of fundamental rights violations before Court. However, it is clear that such disputes can be brought only by Indian citizens who are shareholders of the company in question, says the petition. Even then, such challenges are limited to Article 19(1)(g) rights—or rights to carry out business in India. In this case, even these ‘derivative rights’ have not been claimed by Indian citizens, but by Twitter, which is a foreign entity, argues the petition.
A succinct summary of much of the Union’s stance can be found in the Delhi High Court’s verdict in Star India Private Ltd. v. The Telecom Regulatory Authority of India and Others (2008):
The opinion has been expressed that a corporation seeking to enforce Fundamental Rights must fulfil two conditions—(a) the majority of its shareholders must be Indian citizens and (b) its management and control must in the hands of Indian citizens. This discussion discloses the undisputed view that foreigners and foreign corporations cannot enforce the Fundamental Rights enshrined in Part III of the Constitution. (..) The right of speech and expression, being zenithal in nature, is a freedom incomparable to any other Fundamental Right. Whilst its amplitude ought not to be circumscribed, curtailed or restricted its immense impact on the population requires its availability only to citizens. (..) Courts should be loath to permit such an assault and invasion by indiscriminately extending freedom of speech and expression under Article 19(1)(a) to persons who are not Indian citizens.
Intermediaries Not Empowered to Appear on Behalf of Users, Rights Available to Identified Indian Citizens: Union
In another challenge to the case’s maintainability, the Union argued that when read together, Sections 69A and 79 of the IT Act, 2000, do not confer intermediaries the right to represent users. Twitter lacks the locus to ‘even raise a grievance’ on the Union-issued blocking orders on their behalf.
Additionally, the Union repeatedly focuses on the fact that the accounts blocked were in fact unverified—it was unclear whether they were operated by Indian citizens, fake, anonymous, or bots. Twitter, as a ‘mere intermediary, does not have the right to defend the free speech rights of unverified and untraceable users, as these rights are only available to identified Indian citizens. Such citizens are those whose names are maintained in the citizenship register established under the Citizenship Act, 1955.
Extending this argument, the petition claims that both the Section 69A Blocking Rules and Shreya Singhal v Union of India (2015) clarify that identified citizens are to be provided notice of blocking orders. The Union admits that in the case of verified (blue tick) accounts belonging to Indian citizens, furnishing a blocking order notice to these users ‘may be sustainable’. The same is not the case for bots.
Notably, the petition goes on to say that anonymity is not a constitutionally guaranteed right, only the right to remain silent is. It criticises how anonymity is linked to right to privacy norms, arguing that this has led to adverse security outcomes online (such as the spread of misinformation and other user harms).
All Blocking Orders Procedurally Compliant, Sufficient Checks and Balances in Place: Union
Rejecting Twitter’s allegations of ‘substantively and procedurally’ non-compliant Section 69A Orders, the Union argued that there is ‘no lack of legislative competence’ when it comes to its actions.
The Union defended the often-critiqued Section 69A (in many paragraphs) arguing that while it does not suo moto monitor online spaces, Indian citizens expect the government to take action to preserve safety and trust online. Section 69A’s powers and ambit are ‘narrowly drawn’—in that they pertain to questions of security—while the provision also establishes various ‘checks and balances’ that prevent its misuse by the State, the petition argues.
For example, at least 48 hours notice is given to intermediaries to attend an Inter-Ministerial Committee discussing the orders, says the petition. All blocking orders were ‘broadly discussed’ with Twitter before orders were issued, claims the Union (it is not clear if the Union is referring to the 39 at the centre of this case, or all blocking orders issued at large). Additionally, the 39 URLs in question were specifically reviewed by the Review Committee empowered with determining whether the order falls within the ambit of Section 69A or not. The Committee allegedly confirmed the directions’ validity.
The same Committee has not revoked a single Section 69A order since 2009, recent RTI responses reveal.
However, the Union defended its choices to bypass these safeguards in certain cases.
Given that the 39 URLs pertained to national security and public order, issuing a notice to the user (as procedurally mandated) was not a ‘prudent and sensible option’. ‘Anti-India campaigners’ of various stripes need not be alerted of a blocking notice as they may try to spread harm across different platforms and accounts, the Union surmises. The Union added that Twitter itself could have informed users of the blocking orders, criticising the platform’s ‘miserable failure’ for not doing so and for denying them the opportunity to move Court and air their grievances.
The Union also cast aspersions on the motives and timing of Twitter’s writ petition.
For example, Twitter sought a review of 11 blocking orders before the Inter-Ministerial Committee (10 of these were revoked in early July). At the time, it did not raise the issue of the 39 under scrutiny in this case, choosing instead to approach the Karnataka High Court. The Union questioned why Twitter didn’t raise the issue in the 50 meetings it allegedly had with the government between January 1st, 2021, and July 2022.
Account-level blocking is necessary at times as bots can replicate their content instantaneously, which does little to stem its spread, argues the petition. However, an Inter-Ministerial Committee considers account-level blocking orders only when sufficient evidence of harm is provided. This evidentiary parameter is arrived at in discussion with intermediaries, claims the petition. It adds that ‘all platforms’ have agreed to this standard since 2020.
The headline was updated on September 29th, 2022 at 5.30 PM
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