Is the Ban on Twitter Accounts of Caravan, Farm Activists Legal?
The blocking of accounts appeared to be under Section 69A of the IT Act & associated Rules. Here’s what they entail.
Even though 1 February was supposed to be Budget 2021 day, one of the biggest stories of the day was the blocking of several Twitter accounts which have been covering the farmers’ protests and have been critical of the Centre, including those of magazine The Caravan, and the Kisan Ekta Morcha.
The accounts were ‘withheld because of a legal demand’ from the Ministry of Electronics and Information Technology, and remained unavailable in India for most of the day. They were subsequently restored by Twitter, which pushed back against the block in discussions with the government at a meeting on 1 February.
The Centre has now sent a notice to Twitter arguing that non-compliance with the blocking demand will lead to action by the government. They have also demanded that the accounts be blocked again.
The central government is yet to put out an official public statement on the reasons for the blocking of the Twitter accounts, however, information on the blocking order can be gleaned from a statement released by government sources to the media on 1 February, as well as the notice to Twitter.
Government sources had informed news agency ANI and other mediapersons that some 250 accounts allegedly used a hashtag #ModiPlanningFarmerGenocide in tweets on 30 January, and hence the Ministry of Electronics and Information Technology had ordered Twitter to take these Twitter accounts and tweets down.
The Caravan and others denied the use of this hashtag in any tweets from their account. Twitter had informed The Caravan by an email at 3:10 pm (after the account had been withheld) that it had received a “legal removal demand” regarding the account for violating the laws of India.
The note circulated by government sources to the media also claims that the reason the blocking order was given was because “incitement to genocide is a grave threat to public order.” This claim has been repeated in the summary at the start of the notice to Twitter as well,
It is not clear how the use of this hashtag, making a claim of a genocide plan (however inaccurate) could possibly amount to “incitement to genocide”. In the main body of the notice, the Centre has argued that the posts with the hashtags could lead to incitement of cognisable offences (not genocide).
But where did the power to order blocking of these accounts come from? Are such blocks permanent? What is the mechanism for this to happen? And can Twitter accounts blocked in such a manner be restored?
Section 69A of the Information Technology Act
The information from the government sources to the media noted that the Ministry of Electronics and Information Technology (MeitY) had the Twitter accounts and tweets under Section 69A of the Information Technology Act 2000.
Section 69A of the IT Act says that the central government can ensure that public access to any information via computer resource is blocked, if it is,
“satisfied that this is necessary or expedient to do so in the interest of the sovereignty and integrity of India, defence of India, security of the State... or public order.”
While terming tweets using the hashtag in question ‘incitement to genocide’ makes no sense, statements that the prime minister of the country is planning the genocide of farmers could no doubt fall within the scope of IPC provisions on disturbing public order through spreading rumours (Section 505 of the IPC).
Whether such provisions would be applicable to the tweets in question is of course a different matter.
Question marks over the blocking also arose because it appeared that accounts which didn’t use the hashtag (as The Caravan says) or which were complaining about the hashtag (such as the CEO of Prasar Bharati, Shashi Shekhar) had also been blocked.
What is the Procedure for Blocking Twitter Accounts Like This?
While the IT Act provides the power to impose a block like this, the procedure for doing so is provided by the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009.
Under these Blocking Rules, public access to websites, apps, etc can be blocked at the request of persons who believe the conditions under the IT Act are fulfilled, after evaluation by a designated officer of the government, and after giving relevant stakeholders a chance to respond.
The Rules also allow the Secretary of the Department of Information Technology to take interim measures to block access in case of emergencies, without first giving the stakeholders a chance to respond (Rule 9).
This emergency procedure appears to have been followed to block all these Twitter accounts as none of the account-holders were given the opportunity to respond before their accounts were withheld. Twitter did not also notify them of the request prior to the blocking of the accounts.
Do Twitter or the Account Holders Get to Respond to Such Blocking Orders?
In an emergency situation, there is ostensibly no time to give stakeholders (whether Twitter or the account-holders) a chance to respond before taking the required action.
However, that action can’t become permanent without giving them a chance at a hearing – this is one of the principles of natural justice, which is extremely important in a country that follows the rule of law.
Rule 9 of the IT Blocking Rules recognises this principle, and states that while the Secretary of the Department of Information Technology can take urgent action as an interim measure, this has to then be reviewed by the review committee set up under the rules.
As part of its evaluation of the interim measures, the review committee has to give notice to the person or intermediary who has hosted the information – in this case Twitter – who are to be given a chance to appear before the committee and submit their reply and clarifications.
Once they have done so, the review committee has to send its recommendations regarding the case, including whether it is justifiable to block the accounts under Section 69A of the IT Act, to the government. Only then can the block on the accounts be upheld permanently.
In its email to The Caravan, Twitter had said:
“Following Indian legal process, we are in current communication with the Indian authorities who issued this legal demand in which your account was included. We will notify you if there are any changes to the status of your account.”
It is not entirely clear if in addition to Twitter, the account-holders in such a situation would also be given a chance to respond. Lawyers who have worked on similar matters say that there is no consistent practice on this point.
The Supreme Court in its Shreya Singhal judgment (which struck down Section 66A of the IT Act) had said that “it is not merely the intermediary who may be heard. If the “person” ie, the originator is identified he is also to be heard before a blocking order is passed.”
While these comments are in the context of a blocking order not done through the emergency procedure, the process to be followed by the review committee is the same, and so the Twitter account-holders in such a case could argue that they also have a right to be heard.
Is the Blocking of Accounts Using Such Orders Permanent?
Technically, the blocking order against these Twitter accounts was an interim measure and wasn’t final. The notice to Twitter confirms the blocking order is an interim measure but argues that it is still in force.
However, that’s not something that happens in all cases. The same procedure was followed for blocking Chinese apps like TikTok, and the review committee upheld those decisions subsequently.
Is There a Timeline for the Review Committee to Assess Such Emergency Blocking Orders?
Once the government takes emergency measures (like appears to have taken place here), they have to place the interim order before the committee within 48 hours for its evaluation. This was already done on 1 February, according to the notice to Twitter.
Once the committee receives a request/order for blocking, it is supposed to make a decision on it within seven working days. A decision to continue the emergency order was made on 1 February, though a final decision has not yet been made.
Twitter or any account-holders notified by the review committee would have needed to respond within 48 hours of receiving notice from the committee.
Could Twitter Have Disregarded the Order? Should They Have Notified Account-Holders Before Blocking The Accounts?
There has been some criticism for Twitter online for the blocking of these accounts earlier in the day. However, as [er the law, they did not have a choice but to comply with an emergency blocking order from the government.
Rule 12 of the Blocking Rules says that if someone fails to comply with an emergency order, then action can be initiated against them under Section 69A(3) of the IT Act. Which makes this a criminal offence, punishable with imprisonment of up to seven years and a fine.
The notice to Twitter from the government following the unblocking of the accounts threatens penal consequences under this provision. The government has also said that it is not for Twitter to decide on the “impractability or disproportionality” of the order, and that it must comply with a renewed demand for blocking the accounts.
It is unclear whether such an order, which cites the use of a specific hashtag, can be used to block an account which did not use the hashtag at all. This might be grounds for challenging the application of the order to such accounts, whether by Twitter or the account-holders who can demonstrate they did not.
Twitter could not have informed the account-holders in advance about the request from the government as Rule 16 of the Blocking Rules says that “strict confidentiality” must be maintained in relation to any complaints/requests to block content.
A challenge to this confidentiality provision in the Rules by journalist Tanul Thakur (represented by the Internet Freedom Foundation) is currently before the Delhi High Court.
Can the Blocking of Accounts Like This Be Challenged in Court?
The Blocking Rules do not provide for any appeals mechanism that allows intermediaries or originators of content to go to the court when a blocking order is received.
However, this does not mean that the stakeholders can’t go to court. In the Shreya Singhal judgment, the Supreme Court specifically noted that the ‘requirement for orders to be recorded in writing indicates that they can be challenged before the courts.’
This would have to be in the form of a writ petition, either before the high courts or the Supreme Court of India, where Twitter or the account-holders would have to argue that the government’s decision was not justified.
Twitter has already argued before the review committee that “stock phrases and exaggerations / crude emotional appeals do not constitute inflammatory speech in light of the judgments of the Hon'ble Supreme Court” according to the notice from the Centre. The government claims that Section 69A says otherwise – this is likely to require determination by a constitutional court.
Any such challenges would likely have to wait until the review procedure under the Blocking Rules is completed. There are also, unfortunately, few precedents which could be followed to determine the likelihood of success of any challenge.
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