presentation
Twitter, Inc. (“I tweet”) submitted a written request[1] v. Union of India and Ministry of Electronics and Information Technology (“MEITY”) before the High Court of Karnataka (“court”), challenging the legality of 39 blocking orders issued under section 69A of the Information Technology Act, 2000, between February 2021 and June 2022. The writ also challenges a letter sent by MeITY on Twitter threatening serious criminal implications against the Official Twitter Compliance Major Twitter’s failure to comply with blocking orders. Twitter, purporting to be an intermediary, has based its challenge on the grounds that the blocking orders do not pass the test of proportionality, are manifestly arbitrary and procedurally and substantively inconsistent with Section 69A(1) of the IT Act .
Understanding of relevant terms
Who is a broker?
An intermediary is defined in section 2(w) of the IT Act. In simple words, an intermediary, as originally envisaged and also defined in the IT Act, is a passive provider of a platform/pipeline through which goods and services can be accessed by users. The IT Act gives intermediaries a conditional immunity from being liable for any information, data or communications of third parties made available on or hosted by its platform in terms of section 79 of the IT Act -‘s. Section 79 is a safe harbor provision that protects intermediaries, subject to compliance by intermediaries with the provisions of section 79(2) and (3) of the IT Act.
What are blocking orders?
Section 69A (1) of the IT Act empowers the Central Government or any of its officers to issue directions/orders to an intermediary to block public access to such content to protect India’s sovereignty and integrity, India’s defence, the security of the state, as well as for the maintenance of friendly relations with foreign countries or for the maintenance of public order or for the prevention of incitement to the commission of any known criminal offense related to the above. Such orders are commonly known as blocking or removal orders. Section 69A(2) provides that the blocking of public access shall be subject to the Information Technology (Procedure and Safeguards for Blocking of Public Access to Information) Rules, 2009 (“Blocking rules”) and section 69A(3) provides for an intermediary to be liable to imprisonment for a term which may extend to 7 years with fine for failure to comply with a freezing order issued under subsection (1) of section 69A.
The freezing rules provide for the procedure related to the approval of freezing orders as well as the creation of the Review Committee which consists of the official appointed as chairman and his representative, not below the rank of Joint Secretary in the Ministry of Justice and Justice, Public Affairs Interior, Information and Broadcasting. and the Indian Computer Emergency Response Team. The Review Commission is designed to maintain a system of checks and balances at the time of receiving recommendation and approval before issuing a blocking or removal order for any broker. The freezing rules focus on identifying the originator of the information (which is sought to be restricted) and issue a notice to them with a date by which they can submit their responses or clarifications while always maintaining strict confidentiality regarding complaints of submitted and actions taken by all parties involved.
Concern raised by Twitter
The contention raised by Twitter is that the blocking orders are “procedurally and substantively deficient in provision” and “demonstrate an excessive use of powers and are disproportionate”. Furthermore, Twitter has claimed that in 34 cases, it was directed to block the entire account even though Article 69A only allows blocking of ‘information’. Further, Twitter was also directed to block 1,474 accounts and 175 tweets under unlawful blocking orders, which were not issued under Rule 8(1) of the Rules, and the ‘blocking orders’ do not meet the least intrusive means test as is known. from the Court of Appeals in KS Puttaswamy v. Union of India[2].
Twitter has also argued that there is no transparency in the functioning of MeITY and under the cloak of confidentiality under Rule 16 of the Block Rules, MeITY has not even disclosed the basis for this Twitter. This lack of transparency is further exacerbated, according to Twitter, given the fact that since the Block Rules were enacted in 2009, the Review Commission has not passed a single order revoking a content removal order.
Thus, Twitter has alleged violation of fundamental rights under Article 19(1)(a) and 19(1)(g) along with Article 14 to challenge the action of the Central Government.
Conclusion
Recently, MIE has issued a press release and the proposed draft amendment to the Block Rules dated June 06, 2022 inviting public comments. Through this proposed amendment, it is envisaged that illegal and harmful information that violates the terms and conditions will be removed quickly when reported by users, while also providing users with a reasonable opportunity to respond as well as providing a robust mechanism of redressal of complaints with the creation of an appeals court. It goes without saying that brokerage activities cannot be left unsupervised due to their reach to the public at large, however, lack of clarity and ambiguity in the administration of this aspect of the IT Act and Block Rules has been the biggest hurdle. great for clarity. In this aspect. Therefore, this proposed amendment comes as a welcome move for brokers.
As regards the writ petition filed by Twitter, the Court has already issued a notice to the Central Government and given time to the Central Government to file its Statement of Objects and Twitter to file their reply to the same. On the last date of hearing, the matter was partially heard and is now listed for further hearing on October 27, 2022.
