Currently, a division Bench of the Karnataka High Court is hearing an appeal filed by X (formally Twitter) against a last year’s Order of the court holding that the government need not issue a reasoned blocking Order for taking down content.
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TODAY, the Karnataka High Court heard an appeal filed by social media intermediary X (formally Twitter) against an Order it had issued on June 30, 2023.
On June 30, the high court had dismissed a plea of X challenging the blocking Orders issued by the Ministry of Electronics and Information Technology (MietY) under Section 69A (power to issue directions for blocking public access to any information through any computer resource) of the Information Technology Act, 2000 read with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, (Blocking Rules) 2009 (Blocking Rules.)
X argued that the blocking Orders were devoid of procedural safeguards.
Dismissing the petition, Justice Krishna S. Dixit of the high court upheld the blocking Orders and went on to impose an exemplary cost of ₹50 lakh on the intermediary for willful non-compliance with the blocking Orders.
What is the issue about?
Last year, the MietY had several issued blocking Orders, including some emerging blocking Orders under Rule 16 of the Blocking Rules, to take down specified content on X.
Although X complied with the Orders, it challenged the mechanical manner in which the MietY issued the Orders.
Rule 16 of the Blocking Rules requires that “strict confidentiality” of the information relating to the blocking Orders shall be maintained.
X argued that even if the Orders are issued under Rule 16, it must not be a two-line unreasoned Order.
The Leaflet spoke to Shruti Shreya, senior programme manager of the platform regulation and gender and technological verticals at The Dialogue, a policy think tank, on the jurisprudence around Rule 16 of the Blocking Rules.
Shreya said that Rule 16 Orders are usually issued in cases where matters of national security are concerned.
Asked if any matter could be designated as a matter of national security with Rule 16, Shreya replied in the affirmative. She stated that when Rule 16 Orders are issued, they do not go through the scrutiny of the review committee.
Under the Blocking Rules, blocking Orders are first issued to the intermediary, and the intermediary is required to take necessary action within a stipulated time.
While the IT Act and the Blocking Rules do not specify the time-period within which the intermediary has to takedown the content, in 2015, the Supreme Court, in Shreya Singhal versus Union of India held that content must be taken down within 48 hours of the receipt of the blocking Order.
Once the Order has been complied with, a review committee determines the legality of the blocking Orders. But in a Rule 16 Order, the review committee is exempt from any scrutiny.
As per the IT Act, if the blocking Order is not complied with, it may lead to loss of ‘safe harbour’ protection under Section 79 (exemption from liability of intermediary in certain cases) of the IT Act and the intermediary becomes liable to prosecution.
It should be noted that the review committee maintains no records of the blocking or takedown Orders.
What is X arguing?
Today, before the division Bench of acting Chief Justice P.S. Dinesh Kumar and Justice T.G. Shivashankare Gowda, X argued that the MeitY, while issuing the blocking Orders, must record its reasons.
On June 30, 2023, the high court had held that the MeitY need not record reasons while issuing blocking Orders.
X stated that the June 30 Order of the high court goes against the Shreya Singhal judgment which requires a reasoned Order to be issued under Section 69A of the IT Act read with Blocking Rules.
In Shreya Singhal, the validity of Section 69A of the IT Act was upheld on the grounds that the Blocking Orders provide some procedural safeguards including that the Orders must be reasoned.
X submitted that without a reasoned Order, the intermediary is not in a position to challenge the legality of the Order, especially when the review committee’s mandate could be obliterated in cases of emergency Orders.
It should be noted that the review committee has no independent members apart from government representatives.
What reforms are required?
Shreya opined that the blocking Orders require better implementation of checks and balances and procedural safeguards.
She stated that the 2009 Blocking Rules require amendment considering that it directly impacts the fundamental right to free speech.
First and foremost, Shreya outlined that the Blocking Rules must only give ‘legitimate’ and ‘reasonable’ power to the State with caution so there is no scope for arbitrary application of the law.
She stated that specific amendments need to be made to Rule 16, which must specify the scenarios on which grounds of national security could be invoked.
Shreya added that although it is difficult to have a precise definition concerning the ground of national security, there must still be some specificity.
She suggested that a requirement of an emergency Order to be reasoned is the need of the hour because it would then require the State to have some kind of threshold in classifying content as ‘strictly confidential’.
She concluded that a reasoned Order allows the intermediary to have a better legal recourse.
