X can't claim right to free speech, says Centre to Karnataka High Court

Centre tells Karnataka HC that X is merely a notice board and cannot invoke Article 19; court to hear further arguments on IT Rules and intermediary liability

The Centre on Thursday told the Karnataka High Court that X Corp (formerly Twitter) cannot claim the right to freedom of speech under Article 19 of the Constitution of India, as it is merely a “notice board”, and only those who post or speak can claim this right. Article 19 confers the fundamental right to freedom of speech and expression to Indian citizens.

 

X had earlier argued that the right to freedom of speech and expression is one of the factors for the purpose of Article 14 (right to equality), a right available to intermediaries (platforms such as X, Facebook, and Instagram).

 

Solicitor General Tushar Mehta, appearing for the Centre, said the Supreme Court, in the Shreya Singhal case, had held that since platforms such as X were “using public property”, their content “can be controlled in public interest”. Mehta also submitted that the apex court had stated that citizens have the right to know both sides, but something patently unlawful must be regulated.

 

“We say that A, B, C, D is not an offence, but we will intimate to you that such a thing is unlawful. Rule 3(1)(d) is one such condition, and if you do not follow it, then your safe harbour goes, and then you go and answer the court,” Mehta said. 

 

Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, provides that an intermediary, upon receiving a court order or notification from the government, must not host, store, or publish any unlawful information in the interests of the sovereignty and integrity of India, the security of the state, public order, decency or morality, etc. Failure to do so results in the withdrawal of safe harbour protection.

 

This rule is linked to Section 79 of the IT Act, which grants intermediaries protection from liability for user-generated content. However, this protection can be revoked if they fail to remove unlawful content after being notified.

 

Mehta argued that the law has evolved and that the validity of Rule 3(1)(d) should not be considered only in the context of X but also with regard to all intermediaries.

 

“You are not responsible for what is posted on your platform, but when we say to take it down, it is not a penal provision. Section 79 is an exception of an exception; you will have to follow it,” he said.

 

The court, however, orally observed that an exception cannot override the rules.

 

The matter is listed for further hearing on Friday.