New Delhi: The ongoing standoff between Twitter and the Union government in the Karnataka High Court has resurrected arguments surrounding the contentious Section 69A of the Information Technology (IT) Act, 2000 — a framework often cited by the government while issuing orders to block social media accounts.
While this section empowers the government to block any online information, Twitter argued Monday that the government cannot issue general blocking orders without notifying users and following due process.
In July, the social media giant had said that the government should align its blocking orders with the grounds laid in 69A.
Justice Krishna S. Dixit of the Karnataka High Court is currently hearing arguments from both Twitter and the Union government on orders issued by the Ministry of Electronics and Information Technology (MEITY) between February 2021 and February 2022 to block 39 URLs.
During the latest hearing Monday, regarding the “confidentiality” aspect of the IT Act, Dixit orally observed that although rule no. 16 of the Information Technology Rules 2009 (read in the context of Section 69A of the IT Act) allows strict confidentiality for blocking requests, it could also be “all-pervasive”. The rule in question simply states that “strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof”.
Dixit’s comments were made in the context that this rule may affect the rights of both social media platforms and users, and could infringe upon freedom of speech.
Senior advocate Ashok Haranahalli, appearing for Twitter, submitted to the court that without seeing the actual order it is difficult to ascertain whether the government has followed fair and due process.
Experts ThePrint spoke to are of the opinion that progress on finding solutions to the conundrum over maintaining confidentiality has been slow and there is a dire need for transparency from the Union government whenever such an order is passed.
“There have been questions about the lack of transparency from the government’s side and the entire censorship process. Although largely we have not come to a solution, we have made progress, at least from the legal perspective, since courts have sought more transparency,” said Tanmay Singh, a senior litigation counsel from the Internet Freedom Foundation, a Delhi-based non-governmental organisation advocating digital rights and liberties.
“For example, the Delhi High Court had directed the Centre to share more details on its blocking orders that it wanted to keep confidential,” he added.
Sources in the Ministry of Information and Broadcasting (MIB) told ThePrint that MEITY was not the only ministry issuing blocking orders for online content. Even MIB had earlier this year issued blocking orders for YouTube videos wherein it found content that may have a negative impact on national security and diplomatic relations.
“Since there is a fake news menace, it is necessary to put concerted efforts to detect content that may jeopardise security. The intelligence units are also working on this, social media intermediaries like YouTube usually comply with our blocking requests and orders,” MIB sources said.
About Section 69A
Section 69A of the IT Act defines the government’s power to “block for public access of any information through any computer resource”.
Any “central government” official could be authorised to issue blocking orders if “it is in the interest of sovereignty and integrity of India, defence 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”, the act says.
The Information Technology Rules 2009 state the process in which the blocking orders should be carried out. All stakeholders, including users and intermediaries, have the right to be heard, according to the rules.
In February last year, Section 69A was invoked to block tweets and accounts of users who had allegedly posted about the farmers’ protests, as well as of opposition party members. Close to 250 accounts were affected, but all of them were soon restored.
‘Foreign internet intermediaries must comply with India’s laws’
There have been reports in the past of affected stakeholders who, through the Right to Information (RTI), tried to seek reasons for blocking orders, but the government cited the confidentiality rule and did not reveal any details.
One of the major government perspectives on this conundrum was elucidated by Minister of State for Electronics and Information Technology Rajeev Chandrasekhar in July. At the time, he had taken to Twitter to say that while foreign internet intermediaries and platforms have the right to judicial review, all of them also have the obligation to comply with India’s laws and rules.
Tanmay Singh of the Internet Freedom Foundation explained that this problem was taken to the courts multiple times and the government had been directed to build trust and transparency around blocking orders.
“There are several petitions in high courts across the country that deal specifically with censorship provisions under section 69A of the IT Act. In the Shreya Singhal case, the Supreme Court had specifically ruled that rule no. 8 [of the IT rules 2009] had allowed the right to be heard by the government. So, what we expect now is that the courts step up in their efforts to remind the ministries that they too are bound by laws,” Singh said.
He also said that due process and right judgement by the government were key concerns in matters pertaining to Section 69A.
“It is a matter of concern — especially when we have a stipulated process in place for such an order — that the Centre is not exercising its power properly. The correct department and the correct official of the correct ministry should be responsible for examining requests and using their judgement,” said Singh.
“However, in the recent past, we have noticed how different ministries have stepped into this space. According to our present process, only MEITY should issue orders. The powers of the Ministry of Information and Broadcasting were stayed by the Bombay and Madras High Courts. In all fairness, it is okay if an entity or a ministry requests MEITY for blocking content but the ministry should use its powers wisely,” he added.
Internet freedom in India
The latest report on internet freedom by US-based NGO Freedom House, released Wednesday, found that although India’s internet freedom score improved by two points — to 51 in 2022 from 49 in 2021 — the country was still only “partly free” when it came to the internet.
“Internet freedom in India marginally improved over the past year, following four years of decline, as efforts to bridge the country’s digital divides expanded access to the internet,” the report noted. “While the government continues to impose internet shutdowns, they have reduced in their frequency and intensity.”
The report also noted that legal challenges — such as the one Twitter has undertaken — are resulting in limits being imposed on some of these sweeping powers of the government. It did state, however, that the government continues to block online content, and that Indian internet users risk arrest for posts critical of the government.
The report further said that under “public pressure”, social media companies have pushed back on the Indian government’s efforts to “increase control over online speech”.
“After broad condemnation from civil society about its compliance with state censorship, Twitter resisted government orders to restrict content, including posts from Freedom House, before finally acquiescing in June 2022 after a company employee was threatened with criminal charges. Twitter then took the case to the judiciary, filing a lawsuit in July 2022 that could rein in the government’s broad assertion of censorship powers,” it added.
(Edited by Zinnia Ray Chaudhuri)