'Notice To User Necessary Before Taking Down Social Media Content': Supreme Court Expresses Prima Facie View In PIL Challenging IT Rules

While hearing a PIL challenging the blocking of social media accounts/posts without issuing notice to the user ("originators") who uploaded the post, the Supreme Court on Monday (March 3) orally remarked that notice must be issued to users who are identifiable.A bench of Justices BR Gavai and AG Masih sought the response of the Union Government on the petition filed by Software Freedom Law Centre challenging certain IT Rules, after hearing the petitioner's lawyer, Senior Advocate Indira Jaising assisted by Paras Nath Singh, AOR."Both of us...prima facie, we feel that the rule has to be read in that manner...that if a person is identifiable, then notice has to be given...", said Justice Gavai.During the hearing, Jaising argued that there is non-compliance with the principles of natural justice when notice under the 2009 Blocking Rules is only issued to the intermediary (like 'X') but not to what is defined as "originator" of the subject information. She clarified that the petitioner's challenge is not to the state's power to order taking down of certain posts/information in exercise of power under Section 69A of the IT Act, but rather to the non-issuance of notice to a person who has apparently put the subject information in public domain.In the context of Rule 8 of the 2009 Rules, Jaising also urged that the "person" who shall be identified and issued notice is not defined, however, even if it is assumed that it's a reference to the "originator" of the information, the phrase "OR intermediary" is leading to a situation where notice is only given to intermediary platforms like 'X'. On Rule 16, she raised an issue with regard to maintenance of strict confidentiality regarding the complaints made and actions taken thereon.Hearing her, at the outset, Justice Gavai questioned as to why the petition was filed at the behest of an organization(Software Freedom Law Centre). Instead, any aggrieved person, who is identifiable and faced blocking under the Rules without being issued notice could approach with their grievance, following which the issue could be decided on specific facts."Suppose the rule can be read in a manner, that if a person is identifiable, then a notice has to be given to such identifiable person...and if a person who has posted, or is host, is not identifiable, then notice has to be given to an intermediary - it is capable of being read in that manner...", said Justice Gavai.In response, Jaising claimed that there is no scope for anybody to come to court for judicial review because the request of take-down and the reasons for the same are kept confidential. Further, she clarified that she was not arguing for unidentifiable persons and the primary question is whether identifiable persons, using their own names on social media accounts, shall be given notice by the authorities before taking down/blocking so as to enable them to answer whether the subject information is of the kind that needs to be taken down/blocked. Failing the same, state's action amounts to interference with freedom of speech and expression, Jaising said.The senior counsel summarized that quashing of Rule 16 and mandatory issuance of notice to identifiable persons would resolve the concerns. She also gave the example of Senior Advocate Sanjay Hegde, saying his account was taken down without issuance of notice and not restored for years. "I am not trying to give personal examples, but this is in the public domain, he had gone to the High Court...", she said.Ultimately, the bench issued notice.To put briefly, through the present PIL, the petitioner seeks quashing/reading down of Rule 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 so as to mandate the issuance of a notice, opportunity of hearing, and communication of a copy of the interim order to the person (originator or creator of the content) prior to the passing of a final order.It further seeks quashing of Rule 8 of the 2009 Rules (which requires the Designated Officer to make all reasonable efforts to identify the person who has published the information OR the intermediary, and give notice to them to appear). In the alternative, the petitioner prays that the word 'or' in the said Rule may be read as 'and' to ensure that the notice for blocking is issued to the intermediary as well as the person (originator or creator of the content).Besides the above, some other reliefs sought in the PIL include:(i) Direction mandating the respondents to prescribe a notice format in the 2009 Rules, which discloses all relevant details to enable the noticee to effectively respond to the notice;(ii) Direction to the Respondents to disclose the number of instances where the power to block information has been utilized under Rule 8, or Rule 9, without notice to the originator and/or the intermediary;(iii) Direction to the Respondents to disclose the minutes/findings of the Review Committee as referable to Rule 14 of the...

'Notice To User Necessary Before Taking Down Social Media Content': Supreme Court Expresses Prima Facie View In PIL Challenging IT Rules

Debby Jain

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