30 Jun 2023 5:27 AM GMT
The Karnataka High Court has dismissed the petition filed by Twitter Inc, challenging the blocking orders issued to it by the Ministry of Electronics and Information Technology (MeiTY) under Section 69A of the Information Technology Act.A single judge bench of Justice Krishna S Dixit also imposed cost of Rs. 50 lakh on the microblogging platform, citing its conduct. It also refused...
The Karnataka High Court has dismissed the petition filed by Twitter Inc, challenging the blocking orders issued to it by the Ministry of Electronics and Information Technology (MeiTY) under Section 69A of the Information Technology Act.
A single judge bench of Justice Krishna S Dixit also imposed cost of Rs. 50 lakh on the microblogging platform, citing its conduct. It also refused Twitter's request to stay the operation of the order.
"Your client (Twitter) was given notices and your client did not comply...Punishment for non-compliance is 7 years imprisonment and unlimited fine. That also did not deter your client. So you have not given any reason why you delayed compliance, more than a year of delay...then all of sudden you comply and approach the Court. You are not a farmer but a billon dollar company," the Bench said while pronouncing the verdict.
Court had framed eight issues in the matter. First, on the issue of locus standi. This has been answered in your Twitter's favour. Second is whether there is nexus between blocking order and the reasons behind such order. This is held against Twitter. "On proportionality whether blocking should be tweet specific or period specific, I have held against you," Justice Dixit said.
The bench also refused to issue Guidelines to Centre, as sought by Advocate Manu Kulkarni for Twitter, for exercise of its powers under Section 69A.
"In the above circumstances the petition being devoid of merits is liable to be dismissed with exemplary cost and accordingly is dismissed. Petitioner is levied with exemplary cost of Rs 50 lakh payable to the Karnataka State Legal services Authority, within 45 days and if delay is brooked it will attract an additional of Rs 5,000 per day," Court ordered.
Story to be updated with judgment details.
Twitter had claimed that the blocking orders are "procedurally and substantially deficient of the provision" and "demonstrate excessive use of powers and are disproportionate".
In June, last year, MeitY served Twitter a letter setting out serious consequences of non-compliance, including, of initiating criminal proceedings against Twitter's Chief Compliance Officer, and granted last opportunity to comply with a series of Blocking Orders. Failing to do so would lead to Twitter losing its safe harbor immunity as available to it under Section 79(1) of the IT Act, the MeiTY warned. Following which the microblogging platform approached the court.
Twitter asked how it could be directed to block user accounts and muffle their freedom of speech, when news relating to these events were freely circulated by Television and print media. "If on my platform 1200 accounts are blocked even when material is appearing in print and TV, then it is causing prejudice," Senior Advocate Arvind Datar had submitted for the microblogging platform.
Twitter claimed that if any particular account is against the interests of India, it is the first to act against it. However, when the government wishes to prevent certain accounts, it must follow statutory procedure.
Datar had submitted that as per the jurisprudence laid down in the Shreya Singhal case, if Centre finds some tweet objectionable, it has to send a notice to the account holder asking why the tweet should not be pulled down. He had argued that blocking user-accounts would be a violation of freedom of speech. Further, blocking orders demonstrate excessive use of powers and are disproportionate. "At the heart of Article 19 is the right to criticise... because we are a democracy," he had submitted.
Further, it was argued that the procedure laid down under Section 69 of the Information Technology Act has to be followed. Section 69 gives the Central and State government the power to issue directions for the interception, monitoring, or decryption of any information through any computer resource. He submitted that this Section does not allow for 'wholesale' blocking of accounts.
Datar had argued that an objectionable account should be stopped only when it is a chronic/ repeat offender else, it will go against the principle of proportionality, affecting the social networking platform's business.
Senior Advocates Datar and Ashok Haranhali appearing for Twitter had further submitted that if content is not falling within the prohibition under Section 69(A), it cannot be blocked. They added that such blocking orders not only affect the rights of the primary user but also the intermediary. Thus, it was their case that intermediaries are entitled to challenge the authority's blocking orders.
Advocate Manu Kulkarni for Twitter had in its rejoinder to the reply of the Union Government argued that “Even when Article 19 (1) is not invokable, as a corollary to Article 19 (2) as well, still the concept of reasonableness in Article 19 (incorporated in Section 69A as interpreted by the Apex court in Shreya Singhal case) would avail to his client." Thus the petition before the High Court was maintainable, he had said.
A comparison of the rules and compliance mechanisms in the USA, UK and the European Union was submitted before the court to argue that a particular content can be taken down immediately, without notice, only when it is abhorrent. In all other cases, he emphasised, that procedural fairness has to be ensured.
Datar had also sought to argue that in India, the blocking orders are of permanent nature. However, on the Court's inquiry if there is any provision for revocation under the Indian laws, Datar conceded that Rule 9 (4) of IT Rules empower the Secretary to revoke the order and an elaborate procedure is available.
Further it was submitted that the power of blocking is Tweet-specific & reasons must be disclosed to the user and the intermediary.
As regards to the expression 'reasons to be recorded' used in Section 19A and whether such reasons could be accessed at the request of the public, Haranhali had submitted that by not allowing access to the blocking order, the right to examine it and raise objections on the validity is taken away from both the user as well as the intermediary.
He had added that the safeguards of the Shreya Singhal judgement could not be met unless the users have the right to examine if the correct procedure has been followed. He added that the order must be made available to both the users and the intermediary, as their rights are at stake.
Centre Opposed the Plea:
The Central government 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.
He had said,“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.”
Further, “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.”
In regards to a query of the court whether applying Article 14 standards does jurisprudence differentiate between Indian and foreign companies, the ASG had 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, it was argued.
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,” it was submitted.
Sankarnarayanan had further submitted that Twitter is a "significant social media intermediary" as per IT Rules 2021 and contended that as per Rule 4 it is required to undertake additional due diligence.
"It is the duty of intermediary to provide details of account holder," he said adding that Twitter has not responded to their notices and meanwhile miscreant users continue to post inciting content.
“Somebody gives a tweet under the assumed name of Government of Pakistan about "Indian Occupied Kashmir, somebody says Prabhakaran is a hero and he is coming back. All this is so dangerous that it is going to incite violence…” he argued.
The ASG also relied on the Apex court judgement in the case of Anuradha Bhashin vs Union of India, and said “The aim here is that you are entitled to do whatever you want on your platform, let all join, let there be as many view as there can be, let knowledge come from every quarter and let us enjoy it. But if it is going to affect the integrity, sovereignty of India or is going to create a public order, then naturally we will step in and either we will issue a take down notice or we will say block the account.”
Kulkarni had urged the court that some guidelines may have to be framed as the position taken by the Union of India is not consistent. “Going by various paras in Statement of objection, no discernible standard appears in treating matters like this, therefore the stand is unjustifiable,” he had said.
However, the Government had submitted that no such guidelines were required to be framed.
Case Title: TWITTER, INC v. UNION OF INDIA
Citation: 2023 LiveLaw (Kar) 244
Case No: WP 13710/2022
Click Here To Read/Download Judgment