X Corp May Lose Safe Harbour Protection For Failing To Remove Rana Ayyub's 'Derogatory' Posts On Hindu Deities: Centre To Delhi High Court

The Central Government has told the Delhi High Court that X Corp's failure to remove unlawful tweets made by journalist Rana Ayyub allegedly insulting Hindu deities, despite judicial order and Delhi Police notices, amounts to non compliance and can lead to withdrawal of its safe harbour protection in India.

The Government as well as the Delhi Police has said that despite receipt of 'actual knowledge' by way of a judicial order as well as statutory notices issued by the Delhi Police, X has failed to remove the unlawful content from its platform.

The submissions have been made in an affidavit filed before Justice Purushaindra Kumar Kaurav in a plea filed by Amita Sachdeva seeking deletion of the tweets alleging that they are derogatory, inflammatory and communally sensitive.

“It is apposite to note that such inaction amounts to non-compliance with the due diligence requirements provided for in the applicable Rules and facilitates continues commission of unlawful acts by its user i.e. Rana Ayyub and a consequence thereof the protection of safe harbor available to the intermediary available under Section 79(1) is liable to be withdrawn,” the Centre has said.

X on the other hand has said that the petition is not maintainable against it because it is not "the State" within Article 12 of the Constitution and does not perform a public function to be amenable to writ jurisdiction under Article 226 of the Constitution of India.

X has maintained that the High Court, in its writ jurisdiction, ought not adjudicate whether the posts are unlawful, because Sachdeva should have filed a civil suit seeking adjudication of the posts as unlawful.

Additionally, X in its response has urged the Court to direct the Delhi Police and Union Government to follow the procedure laid down in the 2009 Blocking Rules and issue a blocking order under Section 69A.

In the alternative, issue a takedown direction against the originator, Ayyub, X has responded.

The Government has told the Court that a request has been submitted by the Delhi Police on April 09 for blocking of Ayyub's tweets to the Ministry, which is under consideration and will be processed as per IT Blocking Rules, 2009 by the Designated Officer.

“It is submitted that the Union of India under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 has already initiated the proceedings in accordance with law. It is further submitted that the Designated Officer appointed under Rule 03, upon being satisfied that the circumstances warrant invocation of emergency powers under Rule 09, shall taken an appropriate decision which shall be placed before this Hon'ble Court,” Centre has said.

Earlier this week, the Court had said that action was necessary in the matter in view of the highly derogatory, inflammatory and communal tweets by Ayyub pursuant to which even an FIR is directed to be registered against her on the directions of the court of competent jurisdiction.

During the hearing today, Advocate Vrinda Grover appeared for Ayyub and questioned the maintainability of the plea. Advocate Soutik Banerjee also represented the journalist.

ASG Chetan Sharma appeared for Union Government and handed over a short note to the Court. He said that X has written to the Union Ministry which will proceed in accordance with law.

The Court directed the Delhi Police to give effect to interim order in accordance with law. It further granted liberty to Ayyub to file reply, including on maintainability of writ petition.

The matter is now listed on May 19.

Sachdeva alleged that Ayyub, through her tweets, has not only insulted Hindu deities but also defamed Veer Savarkar and Indian Army. The tweets, total 6 in question, date back to 2013 to 2017.

For context, Sachdeva, who claims to be a devout follower of Sanatan Dharma, had filed a complaint on the National Cyber Crime Reporting Portal requesting criminal action against Ayyub for the social media posts.

Later, an FIR was ordered against Ayyub after the trial court observed that "prima-facie" cognizable offences were made out against her punishable under Section 153A (promoting enmity between different groups), 295A (deliberate and malicious acts intended to outrage religious feelings of any class) and 505 (statements conducing public mischief) of the Indian Penal Code, 1860.

In her fresh petition before the High Court, Sachdeva sought deletion of the X posts saying that the same have prima facie disclosed the offences in question.

As per the petition, Sachdeva had approached X Corp's Grievance Appellate Committee which declined to grant relief on the ground that the matter was sub judice.

“Despite the complete exhaustion of the remedies available under Rules 3(2) and 3A of the IT Rules, 2021, of the IT Intermediary Guidelines, the offending tweets continue to remain publicly accessible worldwide as on date. The continued availability of the impugned content is causing ongoing injury to religious sentiments, disturbing communal harmony, and rendering the judicial directions ineffective,” the plea said.

In May last year, the Delhi Police had told the trial court that details of Ayyub's X account and the alleged tweets in question were awaited and that the posts are not available on the social media platform.

Sachdeva alleged that Ayyub has consistently used her social media to insult Hindu Deities, malign the fabric of Indian unity and promote hostility toward India and its citizens including Indian Army.

It was Sachdeva's case that despite follow ups, no action was taken on her complaint. Accordingly, she filed an application under Section 156(3) of CrPC seeking registration of FIR against the journalist.

Title: AMITA SACHDEVA v. UOI & Ors