The Indian government's power to order blocking of content on the internet using Section 69A of the Information Technology Act is incredibly draconian, and has always been ripe for misuse.
There have been attempts over many years to try and challenge the misuse of the law, from a prayer within the Shreya Singhal case (which did lead to the striking down of a different draconian provision, Section 66A), to separate cases like that of satirical dowry calculator website creator Tanul Thakur.
Twitter's arrival on this scene with its petition in the Karnataka High Court against several blocking orders sent to it, however, could be a game-changing moment in the fight to prevent misuse of this law, not least because it is a rare attempt by a corporate entity to stand up to the government on an issue connected with fundamental rights.
Govt's Blocking Powers
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 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.
While this may seem like it all sounds reasonably fair, the way the Blocking Rules have been framed offers a wide array of options to the government to avoid accountability, transparency, and the basic principles of natural justice.
This is because instead of sending orders to block information to the person who posted the information or content which the government takes exception to, the government can, under the Blocking Rules, just send the Blocking Order to the intermediary responsible for hosting the information, whether an Internet Service Provider (ISP) or social media platform.
The Rules also allow for an emergency blocking procedure which bypasses the limited safeguards provided in the regular procedure, albeit for a limited time. Even though such emergency measures are supposed to be confirmed via the process later on, the lack of an opportunity to be heard for the person who posted the information still means their hands are tied.
And then of course there is Rule 16 of the Blocking Rules, which says that all Blocking Orders are supposed to be confidential, which means that the person whose content has been blocked (whether a website, social media post or social media account) often has no way of being able to challenge the block in the courts, no matter how arbitrary.
Twitter's Run-ins With Govt Over Blocking Orders
Over the last year or so, Twitter has found itself in an escalating battle with the central government over its Blocking Orders.
The Centre took objection to a number of tweets (ie posts on the social media platform) relating to the farmers' protests in early 2021.
Instead of merely asking for certain tweets to be taken down, the Modi government demanded that Twitter block entire accounts which had posted content it disagreed with, including those of not just farmers' organisations, but even that of the reputed magazine, The Caravan.
Twitter initially agreed to block many of these accounts, especially since the emergency procedure under Rule 9 of the Blocking Rules was exercised by the government, but it eventually restored many of the accounts, including that of The Caravan.
Over the last year, the Centre has contested the restoration of several accounts by Twitter, which has raised objections to the Blocking Orders against these accounts. While the central government had agreed to modifications or dropping of certain orders, it had continued to push for others to be blocked.
Twitter was in a position where if it continued to push back, it could lose the legal protections it enjoys as an intermediary, potentially allowing it to be held responsible for content posted on its platform by users.
It is a bit surprising that Twitter did not just cave in and accede to the government's orders, and instead decided to challenge them in the Karnataka High Court.
This would have certainly been the easy option, and would have allowed it to avoid incurring more bad blood with a government which already dislikes it and which has made its displeasure against the company clear.
Corporations have, for fairly obvious reasons, rarely ever played a role in fighting for fundamental rights in the courts.
The Indian Express, Bennett & Coleman, and Sakal Newspapers cases which played an important role in protecting freedom of the press in India were brought by their respective companies, but they had a clear and obvious self-interest in those matters, which dealt with indirect attempts by the government to restrain the press, for instance by making ink required for printing newspapers excessively expensive.
But apart from those cases, corporations are rarely directly affected by restrictions on fundamental rights of individuals, and it is always risky for them to make enemies of the ruling dispensation.
In some ways, Twitter does have a self-interest in fighting this case. Its whole USP is as a platform where people across the world can express their thoughts and engage in dialogue, so fighting arbitrary speech restrictions does make sense for it.
At the same time, the platform only has around 24 million active users according to market research studies, which is quite small when compared to Facebook, for instance (which is far more compliant to government requests).
The accounts it is seeking to protect are not exactly bringing revenue to the platform, and their blocking will not necessarily lead to a lot of backlash against it among its international users.
Its decision to take on this fight in the Karnataka High Court was not a necessity, as a result, and should be lauded as a welcome move – not just because of the principle of the thing, but also for practical reasons.
Why is Twitter's Case Such an Important One?
As mentioned above, under the Blocking Rules, the person whose content is being blocked is not often sent the actual Blocking Order, and this is often sent to the relevant intermediary instead.
Because of the confidentiality-imposing Rule 16, the intermediary can't get in touch with the person whose content is being blocked to get their response to the government's objections. As a result, even if the intermediary has a chance to respond to the government's Blocking Order, it has no real ability to contest it.
The person whose content is being blocked does not get a chance to defend themselves and their content, which basically gives the government carte blanche to take down any content it or one of its ministers or just someone close to the government doesn't like.
This is untenable in a democracy and a country which is supposed to protect freedom of speech under its Constitution.
Attempts to challenge the way the Blocking Orders are issued are stymied because they're too isolated, or the petitioner doesn't have sufficient information to demonstrate how they are mala fide and unfounded.
Twitter's petition changes all that. It has challenged not just one or two Blocking Orders, but 10 of them.
While the confidentiality Rule means that we don't know which orders exactly these are (the details of the orders are in Annexures submitted in a sealed cover), the petition specifies detailed grounds for how these orders are illegal and unconstitutional.
A key thing demonstrated in the petition is how the Blocking Orders fail to comply with the Supreme Court's judgment in the Shreya Singhal case.
While everyone remembers that case for the fall of Section 66A, Section 69A had also been challenged in it. And while the apex court upheld Section 69A and the Blocking Rules, it did so on the understanding that there were sufficient safeguards in place.
First, it held that such Blocking Orders have to be genuinely necessary, and that the reasons for them have to be specified in writing.
Twitter's petition notes that the Blocking Orders sent to it do not actually specify the reasons for why the government wants to block content and why blocking is necessary, and just mentions the basic heads in Section 69A.
They argue that the orders in question that they have received from the Modi government do not meet the threshold of Section 69A, ie threats to the sovereignty and integrity of India, defence of India, security of the State or public order.
Secondly, the Supreme Court held that Rule 8 of the Blocking Rules – which the government reads as requiring it to only give an intermediary a chance to be heard – actually gives the originator of the content in question a right to be heard.
"It is also clear from an examination of Rule 8 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," the judgment written by Justice Rohinton Nariman clarifies.
Thirdly, the apex court noted that all Blocking Orders had to be examined by a review committee, which had to confirm them. However, Twitter states in their petition that:
"To the best of Petitioner's knowledge, there has been no review of the decisions taken by the Respondents, either under Rule 14 or otherwise. Further, no response was forthcoming on this subject from the Respondent."
As a result, the petition is a comprehensive demonstration of just how much the government's power under Section 69A of the IT Act and the Blocking Rules is being misused.
Whether it is the content of the Blocking Orders or the procedure that is supposed to be followed, none of it is in compliance with the law, and it is also incredibly disproportionate, as instead of targeting specific tweets, the government is now just trying to get entire accounts blocked.
While other petitions have tried to raise these issues, Twitter not only has more information to take on the government, it also has more resources than other petitioners, and cannot be questioned about its own connection to the content sought to be blocked.
The misuse of Blocking Orders is only increasing in this country. Answers given by the central government in Parliament show that the number of Blocking Orders issued in 2020 was 9,849, as against 471 in 2014 – and that's excluding the spate of Blocking Orders issued in the last year which led to Twitter's objections.
While there certainly needs to be some way in which genuinely harmful or dangerous content can be taken down, this cannot allow Blocking Orders to be issued which are not justified, target journalists, or give no opportunity to be heard.
Twitter's petition does not seek to strike down Section 69A or the Blocking Rules, but it does offer one of the best opportunities to examine the misuse of this power, and once again lay down safeguards against such misuse.
It remains to be seen of course how expeditiously the matter is taken up by the Karnataka High Court – and what the inevitable appeal to the Supreme Court will bring. Nonetheless, it is an important step by a corporation to show some spine, and we can only hope the constitutional courts will follow suit.