Centre's Blocking Power Not 'Tweet Specific', Can Extend To Blocking Accounts; Individual Notices To Users Not Mandatory: Karnataka High Court

The Karnataka High Court on Friday dismissed Twitter's plea against Centre's blocking orders while holding that government is not required to issue notice to individual account holders whose account is to be blocked.

A single judge bench of Justice Krishna S Dixit said notice to users of account in terms of Rule 8(1) of the /Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009( shortly "Website Blocking Rules") is not mandatory and in any event, the absence of such notice cannot avail to an intermediary as a ground for assailing the Blocking Orders. “Petitioner being an intermediary, cannot invoke Rule 8(1) as a launchpad of its tirade, when apparently the said Rule is promulgated to protect the interests of only users of account and not others,” it said.

Twitter had relied on Supreme Court judgment in the case of Hukum Chand Shyam Lal vs. Union of India (1976) on procedural regularity and argued that as per statutory regime, no Blocking Order can be made without notice to the user whose account is sought to be blocked. It argued Rule 8(1) of the Website Blocking Rules imposes a duty on the Designated Officer to make all reasonable efforts to identify the user of the account.

At the outset however, the bench noted that Section 69 of the Information Technology Act provides that Blocking Orders can be made in the interest of sovereignty and integrity of India, Defence of India, security of State, friendly relations with foreign countries or public order. It can also be made for preventing incitement to commission of any cognizable offence relating to these specified grounds. Rule 8(1) of the Website Blocking Rules prescribes issuance of notice to the user of the account where he is identified or to the intermediary.

Accepting the submission of the Central Government that the text of this Rule employs the word ‘or’ occurring between ‘such person’ and ‘intermediary’, Court said the rule maker’s intent is disjunctive and not conjunctive. It added,

“Sections 69A(2) & 87 of the Act, amongst other, confer Rule making power on the Central Government; sub-section (3) of section 87 prescribes laying procedure. After being laid, the Parliament has not altered their text, particularly of Rules 8 & 9, to accord with petitioner’s argument. If Parliament intended that both the intermediary and the user of the account should be entailed with notice, it would have simply substituted the word ‘and’ for ‘or’, such a power apparently availing from the very text of section 87(3).”

Court also took into account the reasoning offered by the Government that the objectionable contents posted by account users were anti-India and seditious and issuing notice to such users would alert them, possibly making them more aggressive or prompting them to change identity and try to do more harm by spreading more severe content through multiple accounts from the same platform or from other online platforms.

It said, "The respondents have offered a plausible explanation as to why they resorted to an extreme measure of blocking accounts in respect of a few users/originators; there were repetitive posts and some originators had behavioural antecedents of repetitive posting or potential and their highly objectionable tweets had a great propensity to incite anti-national feelings.”

Court said that Rule 8 prescribes a duty to issue notice to the user of account in view of Constitutional guarantee to free speech under Article 19(1)(a). However, it noted,

“None of them (blocked account users) has come forward to complain about the infringement of their rights. It is not that they are all downtrodden members of society or otherwise suffer from some handicap and therefore, they are disabled from working out the remedies on their own. Apparently, they are literate; presumably have more exposure to the outer world, as the very objectionable content of their posts would indicate.”

Blocking Not Tweet specific

Twitter had argued that Section 69A of the IT Act does not authorize the government to direct an intermediary to block the entire account, rather it is tweet-specific. "There is a marked difference between blocking of a user account and blocking of a tweet; in the former, blocking is ex-post facto in the sense that the information is already available on the portal, whereas in the latter, the blocking constitutes an absolute embargo not only against the existing information but also against all future information that is yet to be generated & posted; this future information could be innocuous," it was argued.

However, the Court was of the view that if Section 69A(1) is construed literally, as suggested by Twitter, that would "fail to effectuate the spirit & larger intent of the Parliament.” It said in dealing with codified and statutory law, courts across the civilised jurisdictions have the experience that the words of an enactment more often than not reflect the intentions and aims of its framers incompletely or inaccurately. “One cannot readily go for the rules of literal interpretation, which would not effectuate the full intent of the law maker,” it said.

Further the Court said the term ‘any information’ employed in section 69A(1) of the Act is in the nature of genus, and the words ‘generated, transmitted, received, stored or hosted’ that follow it, are its species. "The numerosity & variety of these words reflect the expansive intent of the LawMaker. Past tense verb forms can also refer to present and future tense. This diversity of species does not admit the ‘restrictive argument’ of the petitioner that section 69A(1) does not envisage account blocking and the power is tweet-specific.”

Thus the Court was of the view that in face of realities of the cyber world, a restrictive interpretation that the ban is "tweet specific" may make the provision otiose. It said the intent of section 69A of the Act is not merely penal but also preventive.

“Considering the detailed procedure to be adopted before imposing a ban which inter-alia includes clear 48 hour notice, the very purpose of ban may be unfulfilled as the subject tweet would have spread like wildfire by then. A tweet specific ban may encourage the tweeter to get into ‘better luck next time’ approach. Instead, a ban that extends to account could serve a deterrent effect and thus subserve the objective of the Statute.”

It added, “The text, context & expanse of this provision give abundant scope for the argument that there is a lurking norm enacted to avert imminent harm to the societal interest at large. State need not await the arrival of an avalanche of mishaps; it can take all preventive measures, in anticipation of the danger, more particularly when undoing the damage is difficult, regard being had to its enormity. To put it metaphorically, a surgeon does not wait till gangrene is developed. A stitch in time saves nine. The impugned action could be both preventive and curative.”

The court also rejected the ground of doctrine of proportionality raised by Twitter. It said “The doctrine was employed while adjudging the reasonableness of restrictive action in the light of constitutional guarantee of speech & expression and liberty & privacy of persons and not the juristic entity of a foreign country like the petitioner herein, who cannot claim such a protection.”

It added that phrases ‘thus far and no further’ and ‘least intrusive measure’ are used in cases that involve complaint of violation of Fundamental Rights guaranteed under Article 19(1). however, it said this guarantee cannot be claimed by the petitioner which is a juristic person and a foreign entity.

Junking the contention of the petitioner that the respondents ought to have segregated objectionable content at the tweet level and thereafter, resorted to tweet level blocking, the bench said

“Such an exercise is impracticable inasmuch as the mischievous originators of the information would designedly mix provocative tweets/illegal contents with the so called innocuous ones. That apart, segregation would not achieve the intended goal especially after the subject tweets are shared thousands of times before any action can be taken against them.”

Noticing that Twitter has completely de-platformed former US President Donald Trump's account by permanent suspension citing public interest framework, the bench said “This supports the case of respondents that a direction or blocking of accounts as an extreme measure can be given and there is nothing unusual in that. Petitioner has taken such a decision on its own and in terms of Twitter User Agreement, does not diminish its citation value.”

Finally it dismissed the plea stating a Writ Court cannot sit in appeal over the subjective satisfaction of high functionaries of the Central Government in issues pertaining to sovereignty & integrity of the nation, security of the State and law & order, that essentially fall within the domain of the Executive.

Case Title: TWITTER, INC v. UNION OF INDIA

Citation: 2023 LiveLaw (Kar) 244

Case No: WP 13710/2022