Illegal Or Unlawful Content Can't Be Protected Under Fundamental Right To Free Speech: Union Tells Karnataka HC In X Corp's Plea

The Union Government has said that illegality or unlawful content cannot attract the same level of Constitutional protections as Free speech.

The submissions were made by the union in its objections filed seeking dismissal of the petition filed by X Corp with exemplary cost.

'X' corp had approached the Karnataka High Court to declare that Section 79(3)(b) of the Information Technology Act, 2000, does not confer the authority to issue information blocking orders, and such orders can only be issued after following the procedure under Section 69A of the Act read with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules.

The Union Government said, “Admittedly, the right to freedom of speech sets constitutional limits on the regulation of unlawful content. Despite these constraints, regulating unlawful content is crucial, as its proliferation undermines democratic processes and the integrity of a free and robust marketplace of ideas. In the internet era, unlawful content spreads rapidly and the global nature of communication makes this an important subject of legal inquiry.”

Emphasising that "unlawful content" is content in breach of a law, the Government has said “Constitution permits classification of speech in compartments thereby enabling different levels of protections that may be granted to them. For example, commercial speech, despite falling under Article 19(1)(a), does not have the same level of protection as other speech. In the same manner, illegal speech would not fall under Article 19(1)(a), and do not attract the same level of constitutional protection as other forms of speech.”

It added, “As far as Section 79 and the relevant rules are concerned, which seek to put to notice an intermediary in case of any "unlawful" content on their platform and further inform that in case they seek to maintain the safe harbour protections, the said content must be disabled or removed, cannot be faulted on grounds of Article 19(2).”

Digital shift has been accompanied by a sharp rise in cyber threats, including the proliferation of unlawful and harmful information in cyberspace, which adversely impacts a wide spectrum of the population-from minors to senior citizens. As a result, there has been a marked increase in the necessity for appropriate government agencies to act swiftly and decisively, in accordance with the applicable provisions of law, to address the growing volume of unlawful and harmful content online, the union submitted.

This proactive approach is essential to maintaining the safety, security, and trustworthiness of cyberspace, which has become an integral part of daily life for individuals across all age groups. Timely intervention is critical not only to mitigate potential harm but also to uphold public order, protect vulnerable populations, and preserve the digital rights and safety of all users, it added.

“The removal or disable access to any such information flagged/notified by the Appropriate Government agencies/nodal officers is premised on the idea that the duty of the elected government is to keep its citizens safe from any unlawful and harmful information,” it was argued.

It was stated that averments made in the petition are vague, speculative, baseless, and misleading and are denied in toto. It is said that “In view of peculiar facts emerging from the use of the medium, cyberspace law laid down in other jurisdictions will be of no help in interpreting the contours of fundamental rights in legislation enacted by the Indian legislature.

Moreover, it was said that in such cases of competing rights of two citizens or persons, the issue cannot be decided summarily in a writ jurisdiction. Also, under this jurisdiction, the court cannot legislate to force the government to change its legislative policy of Articles 19(1)(a) and 19(2).

Loss of Safe Harbour Protection

Elaborating on the aspect of safe harbour enjoyed by intermediaries, the union said that the concept of "safe harbour" in the context of internet intermediaries refers to legal provisions that shield these entities-such as internet service providers (ISPs), social media platforms, and content-sharing websites-from liability for unlawful content posted by their users.

It added, “Safe harbour" is always a conditional protection, available only when due diligence is demonstrably exercised by any intermediary. It is submitted that the same is not a constitutional right, not a part of Article 19(1)(a) and totally a function of local prevailing statute in any country where the intermediary is operating.”

Distinction between Blocking Order Under Section 69 and notices under Section 79 (3).

Union submitted that Section 79(3)(b) and Section 69A of the IT Act operate in distinct domains. Section 69A is an "order" the non-compliance of which has penal consequences whereas Section 79 is a mere safe harbour provision wherein orders passed Section 79(3)(b) would result in no penal or coercive action except for the fact that the blanket statutory protection under Section 79(1), would be lifted.

The objections state, “Section 79 regime does not envisage any "blocking orders" and merely issues notices informing intermediaries of their due diligence obligations. In case of non-compliance of the notices, the result is the lifting of safe harbour protections and consequent action under extant law as per Rule 7 of IT Rules, 2021.”

It is claimed that “Petitioner by attempting to equate the blocking orders under Section 69A to the notices being issued by the authorized agencies and its nodal officers under Section 79(3)(b) of the IT Act, 2000, is attempting to mislead the Hon'ble Court.”

Creation of the SAHYOG Portal does not amount to a colourable exercise of power nor violate Articles 162 and 246 of the Constitution.

On objections against the Sahyog portal the union said that the “SAHYOG portal is only a facilitative mechanism to streamline the process, which benefits intermediaries and law enforcement agencies alike. This is a central portal that will facilitate the removal or disabling of access to any information, data, or communication link being used to commit an unlawful act. It will bring together all Authorized Agencies of the country and the intermediaries on one platform to ensure immediate action against unlawful online information.

It stated that the portal has been operational since October 2024 and significant progress has been made in onboarding IT intermediaries to the Sahyog portal.

It submitted that “So far, 38 IT intermediaries have been onboarded on the portal which includes social media intermediaries including the significant ones, Google, Microsoft, Amazon, Telegram, Apple, Sharechat, Snapchat, Linkedin, YouTube, Dot In Registrars, Instant Messaging Service Providers such as Quora, Josh, PI Data Centers, Sify, Oracle India Private Limited, etc. Meta Inc. representing Facebook, Instagram and WhatsApp, is getting API based Integration with Sahyog to enable real-time action.”

It elaborated further that the notification mechanism under Section 79(3)(b) neither authorizes nor involves adjudication or judicial determination by government officials. The notifications merely communicate to intermediaries about unlawful activities recognized under existing laws, requiring due diligence compliance as a condition for continued safe harbour protections.

The notifications do not violate Article 77(3) of the Constitution or the Allocation of Business Rules. MeitY, as the nodal authority responsible for administering the IT Act and related cyber laws, has exercised its powers legitimately. The guidance and templates provided to other ministries do not equate to unauthorized delegation, rather it constitutes a proper coordination mechanism within the scope of established statutory authority, it was submitted.

Apart from this, the government has questioned the maintainability of the petition and locus standi of the foreign company to raise a challenge before the court.

The petition filed by X Corp by way of interim relief seeks protection from any coercive action against the company, its representatives or employees for not joining the censorship portal 'Sahyog', till the final adjudication of its petition.

The court is scheduled to hear the petition on April 3

Case Title: X CORP AND Union of India & Others

Case No: WP 7405/2025