The immunity granted under Section 79(1) of the Information Technology Act, 2000 (“the Act”) to intermediaries, commonly referred to a ‘safe harbour provision’, is not absolute. Non-compliance with an order under Section 69A is one such instance when the immunity erodes[1].
Section 69A empowers the government to issue directions to government agencies or intermediaries to block public access to any information generated, transmitted, received, stored or hosted in any computer resource, if it falls under any of the grounds of concern mentioned in Section 69A itself (discussed below in detail).
In exercise of its powers under Section 69A of the Act, the Government periodically issues take down’ or ‘blocking requests’ to various intermediary platforms.
Recently, Twitter chose to invoke the writ jurisdiction of the Hon’ble Karnataka High Court (“the Twitter case”)[2] and challenged certain blocking orders issued by the Ministry of Electronics and Information Technology, Government of India (“the Government”).
This article examines the Twitter case in the backdrop of the current state of Section 69A of the Act as well as its potential future implications and broader role in the developing tech law regime.
AN OVERVIEW OF THE TWITTER CASE
Brief Background Leading Up to Twitter’s Writ Petition before the Hon’ble Karnataka High Court
The Government issued blocking orders under Section 69A of the Act against 1,474 Twitter accounts and 175 Tweets in the period between February 2021 and February 2022.[3] Twitter complied with the orders ‘under protest’.[4] In the post-decisional hearing,[5] the government directed Twitter to comply with all directions issued under Section 69A of the Act for blocking of the specified accounts and tweets, and warned the tech giant of not only losing its immunity as an intermediary under Section 79(1) of the Act but also face penal consequences in case of non-compliance.[6] The Review Committee[7] allowed revocation of blocking orders for only certain accounts.
Twitter approached the Hon’ble Karnataka High Court under Articles 226 and 227 of the Constitution of India seeking quashing of the blocking orders on the following grounds: (i) procedural and substantive non-compliance of Section 69A of the Act in light of Shreya Singhal v. Union of India;[8] (ii) power to issue blocking orders is information specific; (iii) blocking of anticipatory information is not authorised; (iv) absence of notice to the account users, which is mandatory; (v) failure to provide reasoning; the reasons cannot be outsourced from the file; (vi) impugned blocking orders are not speaking orders; (vii) non-communication of reasons renders the actions void; (viii) directions are disproportionate as “least intrusive means” not employed; (ix) violation of Articles 14, 19 and 21 of the Constitution of India; and (x) violation of principles of natural justice as no opportunity of hearing before the Review Committee given.[9]
Analysis of the questions of law examined by the Hon’ble Karnataka High Court
The Hon’ble High Court framed eight questions of law for consideration. The ratio laid down in the case is summarily captured below:
- Whether Twitter being a foreign entity could invoke the writ jurisdiction?: While certain fundamental rights are only available to citizens and natural persons (Article 19 and 21 of the Constitution of India), powers of the Court under Article 226 extends beyond fundamental rights ‘for any other purpose’. The Court held that since Twitter was threatened of losing the immunity under Section 79(1) of the Act, it had the locus standi to invoke the writ jurisdiction of the Indian court[10]
- Whether the power under Section 69A of the Act read with Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“Website Blocking Rules”) allows blocking of entire accounts or is only specific to individual Tweets?: The Court held that the text of the legislation could not be read in a manner that would defeat the intent of the statute; legislative logic and realities of the cyber world required that blocking of accounts would also be allowed. The Court further opined that a ban on the account would serve as a better deterrent for a user, than a ban on a specific tweet. This was found to be in keeping with the intent of Section 69A, which was held to be not merely penal and curative, but also preventive.[11]
- Is communication of reasons required while issuing blocking orders, and whether absence of the same in the present case made the orders void?: The Court held that ordinarily reasons must be recorded in the order where the statute itself requires it and principles of natural justice also mandate it.[12] Only in extreme cases can the reasons be withheld.[13] Court found the orders to be reasoned in the present case, as it was brought to the notice of the Court that recorded orders mentioned spreading of fake news and misinformation about the farmer protest thorough Twitter URLs and hashtags , which had the potential to disturb public order. Use of objectionable terms likely to agitate farmers was also highlighted.[14]
- Whether the impugned blocking orders were bad in law for not being founded on discernable reasons relatable to objectionable content?: Based on the material placed before it, the Court took the view that there existed a thick nexus between the orders and the reasons assigned.[15]
- Whether notice to the users is mandatory in terms of Rule 8 (1) of the Website Blocking Rules?: Rule 8 of the Website Blocking Rules provides the procedure to be followed by the authorities upon receiving a request for blocking. Rule 8(1) therein requires the authority concerned to issue notice to such person or intermediary in control of the computer resource to appear and submit their reply and clarifications. The Court observed that Rule 8(1) requires the authority “to identify the person or intermediary”, therefore giving an option to the authority to give notice to either. The Rule does not require notice to both. Notice to the user was thus held to be not mandatory.[16]
- Whether the blocking orders were violative of doctrine of proportionality?: The Court rejected Twitter’s contentions that the blocking orders should have been on a tweet-by-tweet basis instead of on the entire user accounts as impractical. The Court held that entire accounts could be blocked in extreme circumstances. Reference was also made to Twitter’s own user agreement which allows suspension of accounts in extreme cases. The blocking orders were, therefore, held not to be disproportionate.[17] It may be pertinent to revisit the Shreya Singhal case[18] here, which delved deep into the doctrine of proportionality. In this case, it was concluded that Section 66A of the Act was unconstitutional due to its disproportionate impact on the right of free speech. The Court held that such an impact disrupts the balance between the right of free speech and the reasonable restrictions that may be imposed on it.[19] The judgment did not, however, find that to be the case for Section 69A, which was held to be constitutional and applicable under very narrow grounds specified in the Section itself.[20]
- Whether the conduct of Twitter disentitled it to relief?: The Court observed that Twitter delayed in complying with the orders under Section 69A (in some cases of more than a year), and only complied shortly before coming to court. It was held that Twitter was not entitled to any relief due to its culpable conduct.[21]
- Whether the conduct of Twitter made it liable for levy of exemplary costs?: Twitter’s willful non-compliance and the impact of such non-compliance on society led the Court to impose exemplary costs to the tune of INR 50,00,000.00 (Rupees Fifty Lakhs) on Twitter.[22]
AN ANALYSIS OF SECTION 69A OF THE ACT
Purpose of the Provision
The Twitter case takes a deep dive into the various requirements and principles to be applied in cases relating to Section 69A of the Act. To trace the steps, Section 69A was introduced in the year 2008 through an amendment to the Act .[23] This Amendment was passed after the 26/11 terror attacks in Mumbai as a reactionary measure to control cybercrime.[24] The constitutionality of the provision was upheld in the Shreya Singhal case.[25] The provision itself lays down the specific circumstances when it is to be invoked, namely for:
- interest of sovereignty and integrity of India;
- defence of India;
- security of the State;
- friendly relations with foreign States;
- public order; or
- preventing incitement to the commission of any cognizable offence relating to above.[26]
Necessity and Applicability
This provision has been used in various circumstances where a threat to state security or public order has presented itself. For instance, directions were issued under the provision to restrict access to the Blue Whale online gaming challenge, which instigated suicide by trapping / brainwashing depressed persons, mostly children.[27] Directions were also issued under the provision to Yahoo, Google and Microsoft when advertisements violative of the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, were being depicted on these search engines.[28] In another necessary circumstance, blocking orders had been issued to Facebook under Section 69A of the Act during the 2020 Delhi Riots, and the Hon’ble Supreme Court had held that role of the intermediaries is covered by the Act and it was no longer res integra that the government could issue directions under Section 69A to block access to any information to intermediaries.[29]
Though the provision is constitutionally valid (as held in the Shreya Singhal case[30]), the powers therein have not been left unchecked by the Courts, ensuring its use only in necessary and appropriate circumstances. In the case of Anuradha Bhasin v. Union of India,[31] the Hon’ble Supreme Court held that any restriction on internet access would have to be in terms of Article 19(2) of the Constitution of India, that is, in keeping with the test of proportionality. The Court accordingly held that Section 69A of the Act could not be used for complete shutdown in an area unless ‘necessary’ and ‘unavoidable’. The Court further held that such orders could not be for an indefinite period. In the Shreya Singhal case[32], the Hon’ble Supreme Court, while upholding the validity of Section 69A, stated that it is a narrowly drawn provision with several safeguards: firstly, blocking can only be resorted to where the Central Government is satisfied that it is necessary; secondly, such necessity is relatable only to some of the subjects set out in Article 19(2); and thirdly, reasons have to be recorded in writing so that the blocking orders can be challenged in a writ. The test of proportionality has been applied since in other cases as well to prevent misuse of the provision, including in the Twitter case.[33]
LOOKING FORWARD: WILL THE NEW TECH LAW REGIME EMBRACE SIMILAR PROVISIONS?
Section 69A of the Act, as analysed in the Twitter case and various other instances, has served the object and purpose for which the provision was brought in. It serves as a beneficial as well as necessary piece of legislation by ensuring state security and public order while keeping within the requirements of Article 19 of the Constitution of India. However, the boundary between grounds for invocation of Section 69 A vis-à-vis the need to protect free speech is often very thin. This is where the Courts have to play a vital role in ensuring the necessary checks and balances for application of Section 69A, to prevent any kind of misuse.
The Twitter case has set precedents in many ways. We saw a global tech giant exercise its rights as an intermediary and invoke the writ jurisdiction challenging orders issued under Section 69A. In turn, the Government in its capacity as a protector of the citizens, duty bound to secure public order, defended its directions. In its current representation/embodiment, Section 69A serves the purpose of balancing government powers with individual freedom and intermediary protection. With news laws, such as the Digital Personal Data Protection Bill, 2022 and Digital India Act, 2023 on the anvil, and conversations around doing away with ‘safe harbor’ provision getting louder, the future of 69A provision and the shape it will take in the new tech regime remains to be seen.
For further information, please contact:
Gauhar Mirza, Partner, Cyril Amarchand Mangaldas
gauhar.mirza@cyrilshroff.com
[1] Section 69A(3) of the Information Technology Act, 2000 also provides that non-compliance may lead to penal consequences as well including imprisonment for a term which may extend to seven years, and imposition of a fine.
[2] X. Corp v. Union of India & Ors., Writ Petition No. 13710 / 2022 (GM-RES) [Delhi High Court; Judgment dated 30.06.2023].
[3] Ibid., Para III(iii).
[4] Ibid.
[5] In terms of Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, directions can be issued to an intermediary without giving them an opportunity of being heard first in cases of an emergency. In such circumstances, an opportunity to appear and give a reply and clarifications as provided for in Rule 8, by way of a post decisional hearing, is granted to the person to whom such a direction was issued.
[6] Supra note 2, Para III(iii).
[7] Ibid., Para III(iv); constituted under Rule 419-A of the Indian Telegraph Rules, 1951.
[8] (2015) 5 SCC 1
[9] Supra note 2, Para A.
[10] Ibid., Para (I)(a) to (f).
[11] Ibid., Para (V)(a) to (j).
[12] The Court made a reference to the decision in Shreya Singhal v. Union of India [(2015) 5 SCC 1] which at paragraph 114 states: “…reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution of India”.
[13] Supra note 2, , Para A(VI)(a) to (f).
[14] Ibid., Para (VII)(a) to (d).
[15] Ibid., Para (VII)(a) to (d).
[16] Ibid., Para (VIII)(a) to (f).
[17] Ibid., Para (IX)(a) to (g).
[18] Supra note 8.
[19] Ibid., see Para 86.
[20] Ibid., Para 114.
[21] Ibid., Para (X)(a) to (d).
[22] Ibid., Para (XI)(a) to (c).
[23] Information Technology (Amendment) Act, 2008 [Act 10 of 2009].
[24] Mohanty, Amlan (2011) “New Crimes Under the Information Technology (Amendment) Act,” Indian Journal
of Law and Technology: Vol. 7: Iss. 1, Article 5. Available at: https://repository.nls.ac.in/ijlt/vol7/iss1/5.
[25] Supra note 8.
[26] Section 69A(1) of the Information Technology Act, 2000.
[27] Sneha Kalita v. Union of India, (2018) 12 SCC 674.
[28] Sabu Mathew George v. Union of India, (2015) 11 SCC 545.
[29] Facebook v. Delhi Legislative Assembly, (2022) 3 SCC 529.
[30] Supra note 8.
[31] (2020) 3 SCC 637.
[32] Supra note 8, at Para 114.
[33] See Foundation for Media Professionals v. State (UT OF J&K), (2020) 5 SCC 746.
