Our constitution guarantees us some inalienable rights known as
fundamental rights. Within legal and social structures,
fundamental rights are of utmost importance. They create a
framework of laws that limit the authority of the state, therefore
averting arbitrary acts and protecting against any abuses of
power.
Section 79 of the IT Act, commonly known as the safe harbor
provision, mandates intermediaries to remove content in
compliance with regulations outlined in the IT Act, as well as
directives from the government and judiciary. Presently, decision-
making authority regarding such matters lies within the executive
branch and the judiciary.
The subject of blocking IP addresses without any prior notice
violates principles of natural justice which is the minimum
protection given to a person and exists independently even in the
absence of Article 14 of the Constitution of India. Article 14 of the
Constitution of India does not create the principles of natural
justice but rather it is their constitutional guardian.
In most of the cases of the blocking of website, the person who is
owning the website is not given notice as envisaged under Rule 8
of the IT Blocking Rules. The aggrieved owners of such websites
are not even aware about the blocking of website or reasons of
such blocking and are in a fix.
o In the case of Karti P. Chidambaram vs Bureau of
Immigration , "the Hon'ble Madras High Court has held that
6
any decision, be it executive or quasi-judicial, is amenable to
the power of judicial review of the writ Court under Article
226 of the Constitution of India."
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In the writ, the aggrieved person can request the Court to direct
the government to furnish the reasons for blocking of the website
and for setting aside such blocking orders on merits as well as for
non-adherence of natural justice. During the writ petition's
pendency, in some cases, the government agrees to withdraw
such blocking orders to avoid judicial scrutiny.
o Rule 16 of the Information Technology (Procedure and
Safeguards for Blocking for Access of Information by Public)
Rules mandates the confidentiality of all information
pertaining to web content blocking. However, this provision
is deemed unconstitutional and beyond the scope of Section
69A of the Information Technology Act, 2000. Rule 16
violates principles of natural justice by withholding orders
from public scrutiny, thereby denying individuals the
opportunity to challenge website blocking decisions.
Additionally, it contradicts the interpretation given by the
Supreme Court of India in the case ofShreya Singhal v.
Union of Indi10
there is a necessity to have mechanisms such as Information
Technology Act, 2000 and Information Technology (Procedure and
Safeguards for Blocking for Access of Information by Public) Rules,
2009 which allow the government to curb misleading information
that might incite the public or cause harm, but the same needs to
be
1. The extent of Government orders to block user content and
accounts from public access recently came to the forefront
before the Indian High Court of Karnataka. X Corp. (erstwhile
Twitter Inc.) had challenged certain orders issued by the
Government which directed Twitter to block the public access
to certain user accounts and tweets.
2. This article examines three issues that the High Court has
ruled on, namely, whether the Government
can block user accounts rather than specified content posted
on the social media platform,
can exercise its power encompass the pre-emptive direction to
block future content, and
is mandatorily required to notify the originator of the offending
content.
Indian law on orders to block the public access to online content
3. Section 69-A of the [Indian] Information Technology Act
empowers the Government to direct intermediaries to block
online content in accordance with the procedure prescribed in
the 2009 rules on blocking for access of information by public
(“Blocking Rules”). It specifies that ‘any information
generated, transmitted, received, stored or hosted in any
computer resource’ can be blocked. The Government before
passing such a direction, has to be satisfied that it is
necessary to do so in the interest of sovereignty and integrity
of India, defence, and security, friendly relations with foreign
States or public order or for preventing incitement to the
commission of any cognizable offence.
Key takeaways and concerns
4. The High Court interpreted Section 69A to hold that the
Government can not only block information/ content specific
but also user accounts in their entirety.
5. Twitter had argued that blocking of user accounts constitutes
an absolute embargo not only against the existing content but
also future content. It was argued that the use of past tense in
Section 69A made it clear that the Government could block
content that had already been originated and was not yet to be
originated. Therefore, the Government is not empowered to
block user accounts as it would amount to preventing the
originator of the offending content from posting any future
content.
6. The High Court observed that ‘the rules of grammar cannot
jettison the rules of law’ and that interpreting the use of the
word ‘information’ to mean only specific content and not user
account would render the provision otiose. It observed that a
content specific block may encourage the originator to adopt a
‘better luck next time’ approach. To prevent the above,
Section 69A must be interpreted to include the power to block
user accounts, in addition to specified content. The High Court
also held that the power conferred under Section 69-A is
preventive, apart from being penal and curative since the
Government can pre-emptively pass a direction to block user
account. On this basis, the High Court held that power under
Section 69A also includes the power to block user accounts.
7. Having said so, the judgment passed against Twitter does not
discuss the exact absurdity that prevents the words of Section
69A from being construed according to the tense used in the
provision. It remains to be seen whether the appellate bench
agrees with the High Court that the absurdity of the
originator’s potential ‘better luck next time’ approach aptly
justifies the High Court’s approach to not apply literal
interpretation.
8. Notably, the Supreme Court, in Indore Development Authority
v. Shailendra (dead) & Ors., has discouraged the practice to
give extended meaning to expression and effectively reframe
provisions. Accordingly, the High Court’s interpretation of
Section 69A will also have to pass muster in this regard.
9. The judgement also does not verbalise the clear factors that
would tilt the Government’s decision to blocking of user
account rather than specific content. The High Court does
indicate that it was satisfied in this regard with the fact that the
Government appeared to have resorted to the direction of
blocking the user accounts after examining that the originator
had a pattern of repeatedly posting offending content which
could potentially threat national security and public order.
Having said this, the threshold at which the Government can
exercise its power to block the entire user account (rather than
content) is not clear from the judgement. For example, how
long does the pattern of repeating offending content has to
subsist which would lead the Government to decide to block
the user account rather than content. At present, the power
seems to be interpreted to prevent an act rather than content.
10. The judgement also does not address the consequence
of blocking user account. This is particularly relevant so far as
the lawful / non-offending content that originated on account of
the activities of the blocked user account is concerned. While
the judgement observes that separating the ‘innocuous’ ones
from the offending content is not practical, it does not discuss
whether it is legally justified that the lawful content created
(either by the blocked user) or third-parties due to the activities
/ posts contained in the user account may get removed on
account of the Government’s exercise of power to block such
account.
11. The High Court also rejected the argument that blocking
of user accounts would amount to preventing the originator
from posting future content. In this regard, the High Court
reasoned that blocking user account would amount to taking a
preventive measure which the Government is entitled to
exercise. While state authorities/ regulators have in the past
been held to be conferred with pre-emptive powers, it is
unclear whether it is justifiable that under Section 69A, such
pre-emptive power be used to issue a direction that is user-
specific rather than general in nature.
12. The High Court’s decision to encompass blocking of user
accounts would mean that it is primarily based on the
assumption that the originator of the subject offending content
would continue to create only unlawful content. Notably, the
High Court did acknowledge that as Twitter contended, that
future non offending content would get blocked as a result of
blocking of the user account. However, the High Court
appears to have accepted this to be a consequence of the
legislature’s intent to confer the Government with the power to
block online content. On this note, it is also not clear whether
an user whose account is to be blocked should also be
prevented from opening a fresh account on the subject social
media platform.
13. That brings us to the aspect of originator’s rights when it
comes to blocking its account or content. The Blocking Rules
entail a requirement on the ‘Designated Officer’ appointed by
the Government to issue the blocking order (a) to make
reasonable efforts to identify the originator or the intermediary,
and (b) notify the originator only when the originator can be
identified or the intermediary, as the case may be. Adopting a
literal interpretation of Rule 8 of the Blocking Rules which
specifies that the “person or intermediary” be issued a notice,
the High Court held that it is not mandatory for the
Government to notify the originator of the offending content so
long as the intermediary has been notified.
14. The judgement does not discuss whether reasonable
efforts were made to identify the originator and if so, the extent
of it. This becomes particularly relevant as the Supreme Court
in Shreya Singhal v. Union of India had held that it is not
merely the intermediary who is to be notified and heard and
that the “person” i.e. the originator must be heard too if
identified. The High Court refers to Shreya Singhal but opined
that the disjunctive ‘or’ used in Rule 8, provides the option to
the Government to identify either the user or the intermediary.
In our view, this may not be the right approach so far the user
is concerned, particularly because more than often, the users
are not likely to be notified as identifying the intermediary will
be easier.
Other key takeaways from the High Court’s judgment are as
follows:
Content, including user accounts can be blocked indefinitely or
for a specific period.
Courts should give deference to the executive’s decision on
issues of sovereignty, security of the country, particularly
when such decision has been taken after following the due
process of law.
It is not mandatory for the blocking order to contain reasons so
long as the intermediary has been informed of the reasons
underlying the blocking direction at the hearing before the
Review Committee constituted under the Indian Telegraph
Rules, 1951. In our view, this runs contrary to the Supreme
Court’s ruling in Shreya Singhal that reasons have to be
recorded in writing in the blocking order so that they can be
assailed in a writ petition under Article 226 of the Constitution.
Fear of serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burnt women. It is the function of speech to free men from
the bondage of irrational fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech is practiced.
There must be reasonable ground to believe that the danger apprehended is
imminent. There must be reasonable ground to believe that the evil to be prevented
is a serious one. Every denunciation of existing law tends in some measure to
increase the probability that there will be violation of it. Condonation of a breach
enhances the probability. Expressions of approval add to the probability. Propagation
of the criminal state of mind by teaching syndicalism increases it. Advocacy of
lawbreaking heightens it still further. But even advocacy of violation, however
reprehensible morally, is not a justification for denying free speech where the
advocacy falls short of incitement and there is nothing to indicate that the advocacy
would be immediately acted on. The wide difference between advocacy and
incitement, between preparation and attempt, between assembling and conspiracy,
must be borne in mind. In order to support a finding of clear and present danger it
must be shown either that immediate serious violence was to be expected or was
advocated, or that the past conduct furnished reason to believe that such advocacy
was then contemplated."
