A tweet too much: Govt and Twitter test the limits of intermediary laws

Farmers’ protests have expanded their footprint. The Singhu border and adjacent areas are no longer the only battlegrounds. The protests have thrown a new roadblock in the Centre’s efforts to quell the unrest — Twitter. On Mon­day, the Centre asked the platform to remove over 1,178 accounts that the government claims are backed by Pakistan or proponents of the Khalistani agenda. Most of these, ac­cording to reports, were amplifyi­ng information related to the protests.

The Big Tech intermediary has played a huge role in serving as a platform for dialogue. Last week, the Centre had also tightened its scrutiny and exercised powers under Section 69A of the Information Technology Act to direct the social media platform to withhold more than 250 accounts, including those of media house The Caravan, local handles such as Tractor2Twitter and actor Sushant Singh. The Ministry of Electronics and Information Technology (MEiTY) took objection to a certain hashtag, which it found to be incendiary.

While the platform initially withheld these 250+ accounts, it later changed its decision and unblocked them after a meeting with the ministry. Legal experts say both the Centre and Twitter are trying to push the boundaries of existing laws with regards to intermediary liability and freedom of expression to see how far they can go without ruffling feathers.

Both are working under an existing framework laid down in the landmark case of Shreya Singhal vs Uni­on of India, where the apex court had in March 2015 struck down Section 66A of the IT Act, a law that deemed “information that is grossly offensive” punishable by imprisonment.

However, the court decided that a similar section was not unconstitutional —Section 69A of the IT Act. This section allows the government to direct an intermediary to block access to certain information “in the interest of sovereignty, defence, security, friendly relations with foreign States, public order or for preventing incitement to the commission of any cognizable offence”.

“The Supreme Court had previously observed that this section maps the ‘reasonable restrictions’ on freedom of speech already in the Constitution. The court also pointed out that 69A has certain safeguards that Section 66A did not have,” says Avimukt Dar, senior partner, IndusLaw. These safeguards include a written order by the government with reasons for such a directive, and a review committee that will give the intermediary an opportunity to be heard.

Since then, Central governments have been heavily relying on this provision to take down posts they deem dangerous to the public.

However, even though the court gave an all-clear to Section 69A, certain issues still remain unaddressed. For instance, Rule 16 of the IT Blocking Rules, 2009 states that the reason the government gives while directing any intermediary to block certain information shall remain confidential. Therefore, the public remains in the dark. Lawyers point out that the Centre has usually been cryptic about these reasons for such orders when these matters are challenged and argued in court, which adds to more confusion.

As of now, India is in unchartered territory as Twitter has refused to comply with the order. Instead, the platform says it is protecting freedom of expression and free speech, and is exercising extra care where the government seeks to mute journalists or political speech. It says if the content is illegal, it would withhold it in the jurisdiction it's illegal in.  

The stakes are high, both for the government as well as Twitter. In India, the platform is catering to millions of monthly active users. For the Modi-led central government, the platform is one of the biggest mediums of communication. The prime minister himself has over 65 million followers on the website. So within the existing framework, what are the consequences of non-compliance by Twitter?

The Shreya Singhal judgment  

• The Supreme Court had in March 2015 struck down Section 66A of the IT Act, a law that deemed “information that is grossly offensive” punishable 

• However, the court decided that a similar section —Section 69A of the IT Act -- was not unconstitutional 

• The court also pointed out that 69A has certain safeguards that Section 66A did not

• Though the court gave an all-clear to Section 69A, certain issues remain unaddressed

• The Blocking Rules state that the reason given while passing a takedown order shall be confidential. This means the public remains in the dark 

Despite the lack of transparency, experts claim that the platform is legally obliged to abide by the Centre’s order. However, drastic action such as a website ban seems to be off the table.

Experts say that Twitter’s options now would be to wait till there is any further action by the government, or to appear before the high court by filing a writ petition. There are some penal provisions that would deal with non-compliance, which the Centre has threatened to enact.

“According to the IT Act, non-compliance with an order under Section 69A can lead to imprisonment of up to seven years and a fine,” says Savyasachi Rawat, advocate at Delhi High Court. If the Centre imposes criminal liability on relevant officials of the platform, experts say the move would have wider implications. “This may risk a chilling effect on the foreign investment climate, particularly in the consumer internet sector, and the government needs to keep an eye out for its relationship with the US, which is a friendly state,” says Dar.

Kazim Rizvi, founding director, The Dialogue, a policy think-tank, says: “What is in question here is not just the compliance aspect. There are multiple issues. Is the Centre’s order legal? Prima facie, yes. Is the order transparent? No, because of Rule 16 of the IT Blocking Rules. However, is it proportionate? That’s up for adjudication.”

“A blanket ban on a number of Twitter handles would be hard to justify. You could block hashtags or take down posts as well,” says Salman Waris, partner, TechLegis. Another aspect in question is also who decides that the request made from the government is bonafide, without any political undertone, says Dhruv Suri, partner at PSA Legal.

Moreover, the constitutionality of Section 69A may be up for review again, especially on grounds of transparency. Add to that the growth of social media platforms since Shreya Singhal, and the court could look at the provision in a different light this time.

When it comes to freedom of speech, another grave issue arises. Every time an individual’s Twitter handle gets blocked under these provisions, it would be difficult for her to go to court, challenge the same and get it unblocked, all because of a unilateral order by the government.

So when it comes to implementation of laws, India seems to be at a crossroads, with Big Tech and the government locking horns. An amicable solution would set a precedent for many years to come.