Advancing the interpretation that the confidentiality requirement under Rule 16 of the Blocking Rules for Section 69A orders is all-pervasive for platforms and users may be unreasonable, orally observed Justice Krishna S. Dixit of the Karnataka High Court during proceedings in the Twitter-Centre standoff yesterday.
The single-Judge Bench was hearing Twitter’s challenge to 39 blocking orders by the Central government under Section 69A of the Information and Technology Act, 2000 (IT Act).
Justice Dixit was responding to Senior Advocate Ashok Haranhalli, who while delivering Twitter’s submissions, argued that the confidentiality shrouding Section 69A blocking order affects both user and platform rights. Without seeing the order, it is difficult to tell whether the procedure laid out in the Rules is being followed, noted Haranhalli. This affects Twitter’s intermediary rights to appear before an authority, as well as the user’s. It also affects users who are not informed of the blocking of their accounts, violating their free speech rights under Article 19.
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Leaning on the Supreme Court’s upholding of Section 69A in Shreya Singhal v Union of India (2015), Haranhalli stressed that while the orders should not be disclosed to third parties, they should be made available to the platform and affected users.
The day’s proceedings also saw Justice Dixit reject an impleadment application filed by Sanjay Hegde, whose Twitter account was disabled by the platform in 2019 for a header image that displayed the “hateful” photograph of a Nazi dissenter.
Why it matters: Twitter’s challenge down south marks a lone objection by a private company against government diktat—and the government’s much-critiqued use of Section 69A. However, it also raises questions about the roles platforms perform in digital India. Can Twitter legitimately defend free speech on behalf of its users, as it did in its Writ Petition filed in July? Or, as the Central government argues, is Twitter overstepping its functions as an intermediary by deciding what constitutes permissible speech online? The proceedings at the Karnataka High Court will attempt to demarcate these lines—with potential implications for other large social media platforms in India, whose continued operations depend on the safe harbour provided by Section 79 of the IT Act.
Justice Dixit appeared keen to close the matter soon. As noted by other media outlets, the hearing was beset by audio issues for virtual attendees, rendering many of Twitter’s in-court arguments inaudible.
The previous hearing in late September saw Twitter rehash its main objections to the Centre’s blocking orders. The 39 account and tweet-level Section 69A blocking orders were allegedly “substantively and procedurally deficient” and did not pose significant threats to public order. As noted in its Writ Petition, the Centre’s blocking orders amounted to “gross violations” of the free speech rights of the microblogging platform’s “citizen-users”. The sealed cover documents submitted by the parties to the High Court were opened during yesterday’s proceedings to view specific tweets and accounts affected by the government’s blocking orders.
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 Notes Principle of Proportionality While Critiquing Account-level Blocking
Also appearing for Twitter, Senior Advocate Arvind Datar reiterated three of the microblogging platform’s main arguments.
First, blocking orders for content on Twitter cannot be issued unless they violate the specific grounds mentioned in Section 69A. Second, Section 69A orders that prohibit Twitter from informing users that their accounts are being blocked are illegal. Third, unlike India, other countries largely treat intermediaries as aggrieved persons, with the right to appeal blocking orders. Datar stressed that Twitter is an aggrieved person too, and its Writ Petition should be allowed.
Notably, the Indian government had requested the Court to dismiss the petition on maintainability grounds last month, adding that the platform was habitually non-compliant with Indian IT laws.
Haranhalli rehashed another of Twitter’s main arguments in its Writ Petition—that account-level blocking orders are disproportionate. Noting the principle of proportionality, Haranhalli argued that tweet-level blocking is preferable, with account-level blocking necessary only in exceptional cases. The reasons for blocking must also be clearly recorded and communicated in the order so that they can be challenged in Court, submitted Haranhalli.
Twitter Prepares Comparative Study of Global Blocking Laws, Submits to Court
On the Court’s directions, Datar also prepared a comparative study of blocking order provisions in other democracies, such as the United States, United Kingdom, European Union, and Australia.
The First Amendment protects the complete freedom of speech in the United States, noted Datar while explaining the compared laws to the Bench. This disallows government-ordered takedowns of speech. On the other hand, in Australia, as per the Online Safety Act, 2021, an appointed E-Safety Commissioner can order procedurally non-compliant blocking orders if the content is abhorrent, among other specific cases. Blocking orders can be issued for URLs, domains, and IP addresses.
However, Datar underscored that the dispensation of procedural fairness is limited to these instances, otherwise, procedural fairness is maintained. Additionally, Australian law allows both platforms and users to appeal the blocking decision at a tribunal. The result is that the E-Safety Commissioner’s decisions are open to judicial review—a key difference between the blocking laws of India and Australia highlighted by Datar.
Datar added that any civilised country would permit the blocking of violent or abhorrent content, re-emphasising that Twitter has never objected to taking down indefensible content on the Indian government’s orders. However, a comparative approach may have limitations, as ultimately the Court has to deal with India’s statutes.
Karnataka High Court Rejects Sanjay Hegde’s Impleadment Application
Twitter’s much-critiqued blocking of Hegde’s account in 2019 for “hateful imagery” is currently being challenged at the Delhi High Court—and was relied on by both Twitter and the Centre while unpacking the legality of account-level blocking in this case.
Given this reliance by both parties, the Karnataka High Court proceedings may have bearings on Hegde’s pending case at the Delhi High Court, argued Senior Advocate Aditya Sondhi appearing for Hegde. Observing that Twitter’s stance in both cases is also diametrically opposite, Sondhi offered to assist the Karnataka High Court as an intervenor.
However, Justice Dixit argued that the Karnataka case will not affect the proceedings in Delhi, rejecting the application in under five minutes.
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