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Govt Orders Takedown of The Caravan Article, Key Points on Applicability of Section 69A

The govt has invoked Section 69A and provisions under the IT Rules, 2021 to block URLs, websites, tweets on X, and YouTube channels in the past.

An Indian paramilitary soldier orders a Kashmiri to open his jacket before frisking him during curfew in Srinagar, Indian controlled Kashmir, Aug. 8, 2019. The beautiful Himalayan valley is flooded with soldiers and roadblocks of razor wire. The image was part of a series of photographs by Associated Press photographers which won the 2020 Pulitzer Prize for Feature Photography. (AP Photo/Dar Yasin)

The Indian publication ‘The Caravan’ informed on February 13 that they had received an order from the Ministry of Information & Broadcasting under Section 69A of the Information Technology Act, directing them to take the magazine’s story ‘Screams from the Army Post: The Indian Army’s torture and murder of civilians in a restive Jammu’ down in 24 hours.

The Caravan has said that the order’s content is confidential and that they will be challenging it in Court.

 

What does Section 69A of the IT Act say?

Section 69A of the IT Act gives powers to the Central government, or any of its authorized officers, to issue directions to intermediary platforms for blocking public access to online information in the interest of “…sovereignty and integrity of India, defense 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 above…” However, the authorities, while issuing blocking orders to intermediaries, have to adhere to procedures related to issuance, examination, and review of such orders by a Committee, as outlined under the prescribed Rules for Section 69A.

Why it matters:

The government has invoked Section 69A and provisions under the IT Rules, 2021 to block URLs, websites, tweets on X, and YouTube channels in the past. In February 2023, an RTI by MediaNama revealed that as many as 4,987 URLs were blocked under Section 69A by the Indian government between January 2022 and October 2022. However, there is no way to assess the government’s reasoning in invoking Section 69A as these requests, complaints and actions are strictly confidential under clause 16 of the Section 69A Rules. The government has also used the provision as a censorship too, for example, the blocking of BBC documentary ‘India: The Modi Question’ that was critical of PM Narendra Modi’s leadership as the Chief Minister of Gujarat during the Gujarat riots in 2002. Further, it was also revealed in 2022 that the IT Ministry’s Review Committee has failed to ensure that powers under Section 69A are not arbitrarily enforced.

Is Section 69A applicable for news organizations?

Whether or not Section 69A can be invoked to block news content is matter that’s yet to be decided by Courts. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, under sub-rule 5(e) of rule 12, allows self-regulating bodies of publishers—which also includes digital news media organizations, as per the Rules—to refer content-takedown matters to the I&B Ministry for reasons under Section 69A of the IT Act.

In 2021, the Bombay High Court had stayed provisions of the IT Rules [Rules 9(1) and 9(3)] that would require digital news publishers to create a three-tier grievance mechanism and to observe a Code of Ethics. As reported by MediaNama, “The court reasoned in its interim order that it finds the requirements to be beyond the scope of the Rules’ parent legislation, the Information Technology Act, 2000, and violate the constitutional right to freedom of expression.”

Following the Bombay HC order, the Madras HC too stayed more provisions of the IT Rules in response to a petition filed by TM Krishna, and Digital News Publishers Association.  As reported by MediaNama earlier, the Court observed,

“For understandable reasons, the petitioners are wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation. Prima facie, there is substance in the petitioners’ grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there.”

The Foundation for Independent Journalism (FIJ) had also filed a petition at the Delhi HC in 2021 claiming that the Part III of the IT Rules, which deal with digital media publishers, is ultra vires (beyond the scope of the parent Act) the IT Act.

Pointing to Section 69A of the IT Act, the FIJ highlighted that Section 69A is invoked on “extraordinary grounds” like national security and cannot be used to regulate or censor news media.

Most importantly, the petition argued that Section 69A orders are sent to internet intermediaries and ISPs to delete social media posts or to block access to webpages.

“But in no manner does the parent Section empower the Government to direct publishers to delete content, make changes, or publish apologies. The Rules cannot therefore regulate digital news media by requiring them to abide by the Code of Ethics, by extending other legislations and Rules to digital news media. Therefore, the IT Rules, 2021 go completely beyond the object and scope of Section 69-A of the parent Act.” Read more about the arguments of the FIJ here.

 

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Written By

Curious about the intersection of technology with education, caste and welfare rights. For story tips, please feel free to reach out at sarasvati@medianama.com

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