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Content Blocking Orders Not Following Free Speech Protections Upheld by Supreme Court: Experts at MarketsNama #NAMA

“What we realised, after empirically counting the number of Section 66A cases instituted after Shreya Singhal, is that more of these cases were filed in the six years following the judgment than the six years preceding it”

Shreya Singhal is absolutely a landmark judgment on free speech in our times,” observed the Internet Freedom Foundation’s Tanmay Singh at the “Regulating Speech and Content” panel at MediaNama’s MarketsNama conference last Friday. “So, it’s rather disappointing to see that some of the gains that we made after what was a long battle in [the Supreme] Court have not resulted in a lot of practical progress…If I was Shreya Singhal, the judgment that is, I would be so sad and disappointed to see that some of the incredible precedence set has not been followed at all.”

The Supreme Court’s 2015 judgment upheld the constitutionality of Section 69A of the Information and Technology Act, 2000 (IT Act)—which gives the government powers to block online content on various grounds, like public order and national security. The saving grace of the provision: various checks and balances that the Court thought would prevent Section 69A’s misuse and mitigate censorship online. The judgment also crucially struck down Section 66A of the IT Act, which criminalised “grossly offensive speech” for infringing on free speech rights. Eight years down the line, the panelists observed that the government has routinely sidestepped the verdict’s directions—tightening the space for free speech on the Indian Internet.

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“…The incredible thing Shreya Singhal does is look at the [2009 Section 69A] Blocking Rules,” explained Singh. “It records that procedural safeguards exist [to prevent the misuse of Section 69A of the IT Act], and based on them, the Court concluded that these provisions are constitutionally valid and can be upheld. For example, if you identify the originator [of the offending content] you have to give them a copy of the blocking order, and an opportunity of being heard by a committee before blocking their content.”

“Unfortunately, the way that Section 69A of the IT Act is happening [or being used] now is not how Shreya Singhal imagined it to be,” explained SFLC.in’s Radhika Jhalani. “One of the biggest problems with Section 69A is that it has a confidentiality clause [around it], which is Rule 16 [of 2009’s Section 69A Blocking Rules]. So, if I have a website today, I have no way of knowing that my website has been taken down. The only entity who may or may not know is the intermediary [transmitting the information]. Take the very recent case of 14 apps blocked by the Indian government—we reached out to [some of the messaging apps] Briar and Element, and they said they received no [blocking] notification whatsoever!”

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MediaNama hosted this discussion with support from Salesforce, Google and Mozilla. Internet Freedom Foundation, and our community partners, the Centre for Internet and Society and Alliance of Digital India Foundation.

Shreya Singhal recognised the need to protect the Internet’s marketplace of ideas: “The Internet has definitely been a boon to free speech, in terms of access to channels,” recalled Sachin Dhawan of the Centre for Communication Governance at the National Law University, Delhi. “If you compare it [speech] to before, it was more restricted—you had newspapers [for example], but not everyone could speak through them, they were restricted to the privileged.”

“What the Internet essentially did, is make speech free, even in terms of costs. It allowed people from diverse and marginal backgrounds, the so-called unwashed masses, to enter public discourse very quickly. Ultimately that’s what Shreya Singhal said in overruling Section 66A in 2015—we have to have a rich and robust marketplace of ideas where people from all sorts of backgrounds can come in and contribute.” — Sachin Dhawan, Centre for Communication Governance, National Law University, Delhi

However, even law that was explicitly struck down, like Section 66A, continues to enjoy a second lease of life in India, as Singh noted. 

“What we realised, after empirically counting the number of Section 66A cases instituted after Shreya Singhal, is that more of these cases were filed in the six years following the judgment than the six years preceding it,” he added. “That’s incredible. We had to approach the Supreme Court to ask them to provide relief and close the cases.” The Court went on to reiterate that citizens cannot be prosecuted under the struck-down provision last year.

Unlike surveillance, censorship doesn’t need to be confidential: “I think the reason why Rule 16 was inserted in the 2009 Blocking Rules was that the Rules contained a provision for people to make complaints to the [IT] Ministry on which it could act,” hypothesised Singh. “It is a reasonable thing for the Ministry to want to protect the identity of the complainants [through the confidentiality clause]. But, it’s worth thinking about why there would need to be a confidentiality clause on an issue such as censorship.”

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“In surveillance, if someone made the argument that a lack of transparency, and a degree of secrecy and confidentiality are absolutely necessary, I would understand that argument, at the very least. If you tell a person that they are being surveilled, you have lost the point of surveilling them. Censorship doesn’t work that way. There is no reason to take down my tweet [for example] and then not tell me that you’ve  taken it down, or even why [emphasis added].” — Tanmay Singh, Internet Freedom Foundation

Dhawan added the Supreme Court may have never envisioned Section 69A blocking to be entirely confidential in the first place. “As per Shreya Singhal, confidentiality is supposed to be limited or restricted, at least in terms of the user or originator [of the content],” he argued. “As per the judgment, you notify the user, provide them with a hearing, and then the user should be able to challenge the order in the Courts through a writ petition under Article 226. Confidentiality isn’t complete.”

“If you read Shreya Singhal, the reason why they didn’t declare the website blocking rules as unconstitutional, is that people can go to court and challenge the order,” Jhalani added. “But, if you don’t know [why the content is blocked], if you can’t go to court, you can’t do anything [about the blocking], right?” Similar arguments were raised by Twitter when it challenged 39 Section 69A orders at the Karnataka High Court last year—the microblogging platform argued that the secretive orders violated users’ free speech rights, among other things.

An audience member also observed how recent amendments to the 2021 IT Rules dealing with content moderation complaints may complicate the confidentiality surrounding Section 69A blocking online. “Under the amended rules, there is a grievance redressal mechanism for content that is taken down [by platforms],” they noted. “But, if a user’s content has been taken down under Section 69A, and they complain [ to the platform’s grievance officer] what is the officer supposed to say? The person has no visibility on whether it is the platform that took the content, or if it was under Section 69A [that is, on government orders] … This entire confidentiality mandate may need to be done away with because, otherwise, this entire grievance redressal process may fail.”

Some content bans are happening under laws stayed by Courts: Not all content-blocking bans are a result of the IT Ministry’s actions. They are also issued by the Ministry of Information and Broadcasting (MIB)—like the recent one on a BBC documentary exploring the Indian Prime Minister’s alleged connections with communal riots in the early 2000s.

These orders follow the emergency content blocking procedures laid out in Rule 16 of India’s platform regulation rules, the IT Rules, 2021 (not to be confused with the Rule 16 confidentiality clause in 2009’s Section 69A Blocking Rules). 

“This is constitutionally suspect because the Bombay High Court issued an order on August 14th, 2021, staying several provisions of part III of the IT Rules, 2021, which includes the three-tier mechanism for [content] regulation,” Singh explained. “The authorised officer who is supposed to issue the emergency orders banning content under Rule 16 through the MIB is the Chairperson of the Third Tier. If the mechanism is stayed, that means the third tier has not been constituted and the authorised officer has not been authorised—which means they’ll be unable to exercise Rule 16. To say that Rules 9(1) and 9(3) of the Rules are stayed, but Rule 16 has not been, is a question that’s worth looking at in a court of law.”

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Jhalani also referred an RTI to find out how many times the review committee charged with examining the requests for Section 69A orders had met over the years.

“We found that the Committee sat for a total of 39 times and they didn’t overturn a single order,” Jhalani revealed. “For emergency blocking, there is no committee [reviewing] the blocking [beforehand]. The blocking happens, and then the committee sits to review if the blocking was fair or not.” A separate RTI filed by the Internet Freedom revealed the same figure for 2021. 

Do government press releases on content blocking violate the confidentiality clause?: On the flip side, the government has been keen to publicise some of its recent big-ticket bans—like on Chinese apps. Would this violate the confidentiality clause, MediaNama’s Editor Nikhil Pahwa asked. 

“My sense is that the press release isn’t the blocking order,” suggested Dhawan. “So, it doesn’t technically violate Rule 16 [of the 2009 Blocking Rules], where the confidentiality extends to the order itself.” 

However, audience members noted that this ‘absolute’ confidentiality may not be necessary. Twitter also used to report the URLs the government asked it ban to the Lumen database, a platform tracking content takedown orders online, noted the Internet Freedom Foundation’s Director, Apar Gupta.

“What this illustrates is that Rule 16 does not prevent the disclosure of URLs—it’s been done for a long time, and was not disputed,” Gupta argued. “Secondly, Twitter was alone in doing so—neither Meta, Google, or Internet Service Providers took this step [as per their transparency reports].”

“Disclosure of URLs can be done, however, I don’t think it will be, because that form of transparency leads to controversy and demands for accountability and justice. This is a joint failure by not only the government, in imposing secrecy and not obeying Shreya Singhal, but by the private sector agreeing to the rules of business and operations in the jurisdiction.” Apar Gupta — Internet Freedom Foundation

Government blocking orders may impact global access to free speech: Responding to Pahwa’s question on whether illegal blocking orders issued by the government are applicable globally (thus harming free speech at a planetary scale), Dhawan noted that whether foreign governments decide to respect them or not depends on the “principle of comity”. That’s when courts of one jurisdiction respect the laws and verdicts of another, not out of obligation, but out of “deference and mutual respect”.

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Singh added that it’s not just the government that orders global takedowns of content, but Courts too. “An Indian court…does not actually need to coordinate with the American government if it [hypothetically] passes an order to Facebook that it follows. What will most likely happen is that one platform will be a party in a case. The judge may pass an order and the company will just go and follow it. At that point, a lot of these questions [on jurisdiction] just kind of get steamrolled.”

Note: This article’s title was updated at 4:40 pm for brevity and clarity. 

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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