Twitter Can't Espouse Freedom Of Speech Of Its Users In Absence Of Enabling Statute: Centre Defends Blocking Orders In Karnataka High Court
The Central government on Tuesday opposed the petition filed by Twitter challenging the blocking orders passed by the Government of India.
Additional Solicitor General R. Sankaranarayanan appearing for the government questioned the maintainability of the petition filed by the Foreign company.
“The petitioner being a foreign company cannot avail any remedy of fundamental rights guaranteed under Article 19 (1) and Article 21 of the Constitution of India. The petitioner company does not have a legal mandate to espouse the cause of twitter users/account holders. For espousing there should be statutory enablement like the Industrial Disputes Act, Trade Unions Act, wherein the cause of workmen becomes legally espousable by others and more particularly trade unions.”
He added “In absence of such a statutory enablement, the question of espousal will stand miles away. Moreover, such a mandate can arise only if there is a jural relationship between the account holders and petitioner company and not otherwise.”
To a query made by the court about whether applying Article 14 standards does jurisprudence differentiate between Indian and foreign companies, the ASG replied,
“Let us suppose I say all accounts of twitter are closed and I permit other platforms to do the same business. Then he (twitter) can come and complain that you are not affording an opportunity to do business, you have given permission and now you have blocked all my users therefore you have treated one person one way and the other person the other way. In this particular case twitter is not being differently.”
He added “Containing people who have posted content which is injurious to the security of nation or public order, the persons who are actually aggrieved are not them.”
Further the government cited that news items appearing in the newspaper is as per the discretion of the Newspaper. However, on an intermediary like this anyone can put up a post and there is no discretion.
Referring to Section 79 of the Information Technology Act which pertains to exemption from liability of intermediary in certain cases, it was said “Intermediary is bound to obey the orders which the designate authority/agency which the government fixes from time to time.”
It was also said that the twitter account holder is not carrying out business by writing out a twitter post nor canvassing for business, he is only expressing his view.
"Therefore when the government seeks to block the account, the person who is actually aggrieved by blocking of the order is not carrying out business he is merely expressing himself. Therefore to say that you are covered under Article 19(1)(a) or 19 (1)(g) will not be correct. On the contrary the intermediary should distance itself from the account holder, if there is an act of omission or commission. He does not hold a brief for the account holder.”
Twitter has in its submission said that orders issued to it by the Central government for blocking certain user accounts directly affect those users' right to free speech and expression and thus, the orders must be communicated to them.
Further it has said that there could not be an omnibus general blocking order unless the content violates grounds mentioned in Section 69 (A) of the IT Act and added that any violation of the statutory provisions by the State directly infringes the affected party's right to equality before law under Article 14 of the Constitution.
It is also said that “If the content is not falling within the prohibition under Section 69(A), it cannot be blocked. Such blocking orders not only affect the rights of the primary user but also the intermediary, Thus, intermediaries are entitled to challenge the authority's blocking orders.”
The matter will be next heard on March 6.
Case Title: TWITTER, INC v. UNION OF INDIA
Case No: WP 13710/2022