Ministries using takedown orders to circumvent 69A: X to Karnataka HC

X moves amended plea in K'taka HC against Sahyog portal

Social media platform X on Tuesday told the Karnataka High Court that content takedown and blocking notifications were being issued by Union ministries without "application of mind". These orders were not aimed at combating unlawful information of the respective ministries but rather designed to achieve the goals of the government and the Ministry of Electronics and Information Technology (Meity) to circumvent Section 69A of the Information Technology (IT) Act, X told the court.

 

In a revised petition, X said a content takedown template had been provided by Meity to several Union ministries, state governments, and the directors general of police (DGPs) of various jurisdictions in India to issue blocking orders, which fell outside the established processes of content takedown under Section 69A of the IT Act.

 

Section 69A of the Information Technology Act, 2000, empowers the government to issue directions for blocking public access to online information. This power is exercised when the government is satisfied that it is necessary to do so in the interest of national security, public order, or for preventing incitement to the commission of any cognizable offence. The blocking is subject to specific procedures and safeguards outlined in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. 

 

The Sahyog portal of the Ministry of Home Affairs (MHA), which X termed as the “censorship portal” in its plea, is illegal because it creates a quasi-judicial body by executive fiat and also because it usurps judicial functions, the social media platform argued.

 

It told the court that a quasi-judicial "process" under the “censorship portal” — wherein any central or state executive officer could unilaterally adjudicate whether any information was "unlawful", and direct its removal under threat of loss of safe harbour protection — created a quasi-judicial body because executive officers within the portal exercised powers to determine "unlawfulness" and impose prejudicial consequences.

 

The Sahyog portal is arbitrary, opaque, and violative of Articles 14 (right to equality) and 19 (freedom of speech and expression) of the Constitution, X argued.

 

The social media platform further contended that Rule 3(1)(d) of IT Rules of 2021 was unconstitutional as it exceeded the limitations set by its parent statute, the IT Act, and thus violated the settled principles that subordinate legislation cannot exceed the limits of its enabling Act.

 

Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules-2021, states that an intermediary, upon receiving actual knowledge of unlawful content through a court order or a notification from the appropriate government or its agency under Section 79(3)(b) of the IT Act, must not host, store, or publish such information. This rule is connected to Section 79, which provides intermediaries with protection from liability for user-generated content, but this protection can be revoked if they fail to remove unlawful content after being notified.

 

Centre's reply

 

In response, the Centre vehemently denied that the ministries are issuing notifications at the behest of Meity. It explained that many government departments/ministries have a National Informatics Centre (NIC) office or officer deputed only for ease of functioning related to IT infrastructure, which is managed by NIC, at the national level. This does not mean that NIC was directing the functioning of all the ministries, departments, and Courts, the Centre said. 

 

It further added that X was merely trying to conjure up non-existent wrongdoing to bolster its arguments. Defending Rule 3(1)(d), the Centre said it had sufficient safeguards to prevent misuse.

 

The first proviso to Rule 3(1)(d) states that notifications under the rule may only be issued by authorised agencies of appropriate governments.

 

The requirement imposed on internet intermediaries to not “host, store or publish” any unlawful information under Section 3(1)(d) does not amount to a blocking order, the Centre said, adding that in case the intermediary continues to host, store or publish such information, the only change is that it cannot claim immunity under Section 79 and, therefore, may be prosecuted in court about that particular information.

 

The lifting of safe harbour could in no way be equated to blocking of information, the central government said. X's reliance on the Kunal Kamra case was also misplaced because Article 19 talks about the rights of a user of an intermediary platform, not of an intermediary itself, the Centre said.

 

The high court is hearing X's plea against the Centre, claiming unlawful content regulation and arbitrary censorship. 

What X said

• Blocking orders issued to achieve the goals of Meity to circumvent Section 69A of IT Act
• ‘Censorship Portal’ illegal, creates a quasi-judicial body, usurps judicial functions
• Rule 3(1)(d) of IT Rules 2021 unconstitutional because it exceeds its parent statut
•  

Centre’s reply

• X is merely trying to conjure non-existent wrongdoings to bolster its arguments
• Rule 3(1)(d) has sufficient safeguards to prevent misuse, SAHYOG portal further safeguard
• Article 19 is about rights of a user of an intermediary platform, not of intermediary themselv