On 24 April, Medianama, a digital news platform, reported that the central government had directed micro-blogging website Twitter to take down 52 tweets that mostly critiqued government inaction in handling the COVID-19 crisis. The report emerged from Lumen Database, which receives information from social media companies and private entities on takedown notices received by them from governments across the world.
The central government issued takedown notices to Twitter by exercising its powers under section 69A of the Information Technology Act. This provision gives unfettered power to the central government to unilaterally direct social media companies to block any content or profile which it thinks goes against the “sovereignty and integrity of India.”
However, Section 69A is deeply problematic; not only due to the regulatory apparatus it proposes, but also the sheer “imbalance of power” it engenders. It allows the government whims to work as a “whip” for social media platforms while operating in a secretive process that renders the user bereft of all reasons.
This forces us to pose tougher questions, assess the graver repercussions of such “executive action.” Does it amount to a violation of our fundamental right to free speech? Should Twitter be recognised as a space where fundamental rights can be claimed? If not, shouldn’t there be some oversight of decisions that silence dissent with impunity?
The Politics of Arbitrary Takedown Orders
The Lumen Database reveals that majority of the tweets that the central government had directed Twitter to take down were posted by persons expressing a view critical of the government’s policy.
For instance, ABP Editor Pankaj Jha’s tweet talked about the differential treatment towards Tablighi Jamaat and Kumbh Mela, parliamentarian Revanth Reddy’s tweet expressed concerns about the “collapsing healthcare system,” and actor Vineet Kumar’s tweet narrated the plight of getting access to medicines.
The targets of the central government’s takedown orders clearly expose how Section 69A of the IT Act is used as a political tool to stifle dissent. It reveals the susceptibility of the law to political exploitation, and the vulnerability of those who face the wrath of it.
Section 69A is Deeply Problematic
The framing of Section 69A of the IT Act, which provides a system to issue takedown orders, reeks of an imbalance of power between the government and the user. Torsha Sarkar, a Policy Officer at Centre for Internet & Society, believes that this imbalance of power between the users whose accounts/content is being censored and the government, is made worse by a flawed legal system.
“Without the users being provided any right to challenge or seek legal remedy against this sort of government action, the whole procedure becomes unconstitutional.”Torsha Sarkar
Another problem lies with the procedure laid down for the issuance and implementation of such takedown orders. Sarkar believes that the procedures laid down for censorship are problematic as they are purely executive driven.
“Rule 16 (of IT Rules) mandates that the whole procedure for censorship needs to be ‘confidential’, which often means that the user has no idea when their content is being restricted. Also, the user is not able to procure the actual order that has mandated this restriction. All of this make it difficult for the user to challenge the order in any court of law.”Torsha Sarkar
Section 69A and rules framed therein do provide certain safeguards against the exercise of directing takedown orders. Takedown orders can only be issued when it is “necessary and expedient” to do so, and when the content falls under the reasonable restrictions enlisted under Article 19(2) of the Constitution.
However, as Pranjal Kishore, an advocate practising in Delhi, points out, there is no evidence to suggest that these safeguards are actually implemented in practice.
“It is clear that it is neither necessary nor expedient to block access to tweets criticising the government. To the best of my knowledge, none of the individuals whose tweets have been blocked were issued any notice.”Pranjal Kishore
Is There a Remedy?
As per jurisprudence, as it stands today, there is no remedy if the content is unilaterally taken down or blocked by social media portals as per their own policies.
In 2019, Senior Advocate Sanjay Hegde had moved the Delhi High Court against Twitter’s move of suspending his account. He argued that Twitter’s “arbitrary action” should be reviewed by a constitutional court as the social media platform performs a “public function.” The case, however, is still pending.
While arguing that the high court has jurisdiction over Twitter under Article 226 of the Constitution, Hegde pressed for a direction to be issued to the central government to frame guidelines to ensure that any censorship on social media is carried out strictly in accordance with Article 19. Clause 2 of Article 19 prescribes certain “reasonable restrictions” on the fundamental right to freedom of speech and expression.
Pranjal Kishore told The Quint that while aggrieved users whose content have been taken down can approach the courts under a writ petition, it is much easier said than done.
“Due to the secrecy mandated by the rules, a user whose content is blocked is not given access to complaints made against her or to the blocking order itself. Thus, the user is essentially challenging what she assumes the order says.”Pranjal Kishore
Further, Kishore points out that not every citizen has the resources, time, and access to the judicial system to be able to file writ petitions against such censorship.
This is where the role of Twitter itself becomes important. Questions should be directed to the social media company as to how big of a stance it wants to take against arbitrary censorship orders, considering the monetary and public leverage it enjoys.
However, as Kishore says, Twitter’s own track record of unilaterally blocking content has exposed its seemingly selective commitment to free speech.