New Delhi: When the Karnataka High Court dismissed a plea by Elon Musk’s microblogging platform X to declare the Centre’s ‘censorship portal’, Sahyog, as unconstitutional, it had said that X is not incorporated under Indian laws, nor does it have a “face” in the country.
X “is a faceless company, with not even a legally established office anywhere, in the nation,” a bench of Justice M. Nagaprasanna had said, adding that although Article 19 of the Constitution undoubtedly protects citizens, such fundamental rights are “citizen centric” and not “person centric”, and X is not even a person, but a company.
The Sahyog portal was set up in October last year by the Ministry of Home Affairs (MHA) in collaboration with the Ministry of Electronics and Information Technology. It allows the government or its agencies to issue notices to intermediaries like X to take down content.
The law must walk a tightrope between the perils of unregulated expression and the dangers of unrestrained censorship, the court said in its 351-page ruling in response to a plea where X, alongside media collective, Digipub, had challenged the invocation of Section 79(3)(b) of the IT Act, 2000.
The petitioners said that the section is a safe-harbour clause, which doesn’t confer the government the authority to issue information-blocking orders under the Act.
The provision says that if, on receiving “actual knowledge” or notification by the government that any information, data or communication link “residing in or connected to a computer resource resource controlled by the intermediary” has been used to commit an unlawful act, and the intermediary fails to quickly remove or disable access to that material, the intermediary will be personally liable.
X argued that such information-blocking orders can only be issued under Section 69A of the IT Act, which allows the Centre to block access to online content for reasons like national security, public order, and maintaining friendly relations with foreign states, and comes with a set of inbuilt safeguards.
The microblogging platform presented before the court a series of takedown orders issued to it, saying that the current challenge to the portal was necessitated by such orders. These orders invoked Section 79(3) (b) along with Rule 3(1)(d) of IT Rules, 2021 which require intermediaries to remove unlawful content upon receiving ‘actual knowledge’, either through a court order or a government agency notification, within a timeframe of 36 hours.
The court also formulated a list of fundamental questions for consideration in its judgment. Some of these questions were whether the menace of social media needs to be curbed and regulated, or whether the portal is ultra vires (beyond the scope) of the parent IT Act.
What court said
One of the questions the court asked while adjudicating the current dispute was whether the human civilization had ever witnessed information and communication in an unregulated state. Answering this, the court said every nation has grappled in its own way with the challenges posed by this new medium and each state has thought it fit to erect a regulatory framework suiting its circumstances.
“I, therefore, answer the issue holding that development of information and communication, from time to time, nation to nation, have always been regulated through regulatory frameworks,” the court ruled.
Giving examples of the Indian Postal Act, Cable Communications Policy Act, 1984, and even US laws like the Communications Decency Act, and the Providing Appropriate Tools to Intercept Terrorism Act, 2001, the court said that “no mode of communication, whether post, telegraph, telephone, radio, television, cable or internet—has ever been left wholly unregulated”.
The court said that although X is a corporation registered in the United States, it is now trying to take refuge under the banner of unbridled freedom. “The record however, reveals a different story”, the court said, adding that even in the US, the spread of information has never been free from the tempering hand of law.
Finally, the court rejected X’s reliance on constitutional provisions like Article (19)(1)(a) saying that free speech cannot be unbridled, instead it is hedged and regulated by reasonable restrictions as found in Article 19(2).
The court also laid to rest the questions surrounding the safe harbour clause by saying that Section 79 is the safe harbour provision hedged with conditions. “Section 79 is not a free for all safe harbour. Any unlawful content on the platform if directed to be taken down and if not taken down, the safe harbour would be lost and Rule 3(1)(d) springs”. Essentially, this meant that only those exercising due diligence can claim the protection of India’s safe harbour clause.
Stressing that the ‘Sahyog’ portal is a “beacon of cooperation” between the citizen and the intermediary, and a mechanism through which the state endeavours to combat the growing menace of cybercrime, the court said that to challenge its validity is to misunderstand its purpose.
(Edited by Vidhi Bhutra)