[IT Rules 2021] Social Media Intermediaries Must Respect Fundamental Rights, Issue Notice Before Taking Action Against User Accounts: Centre To Delhi HC

The Centre has told the Delhi High Court that Significant Social Media Intermediaries (SSMIs) are expected to issue prior notice to the user before taking any action on the user account and that failure to comply with the same may amount to a violation of Information Technology (Intermediaries guidelines) Rules 2021.

The development came after the Central Government through Ministry of Electronics and Information Technology filed a counter affidavit in pleas challenging action of micro-blogging platform Twitter to permanently suspend user accounts namely "wokeflix" "MeghBulletin" and others.

In a similar affidavit filed in the pleas, Centre has said that the platforms must respect the fundamental rights of the citizens and should not take down the account itself or completely suspend the user account in all cases.

"That the taking down the whole information or the user account should be a last resort and the platform may at all times, endeavor to guard the users' fundamental rights by following the principles of natural justice and afford reasonable time and opportunity to the user to explain his stand," the affidavit reads.

Furthermore, Centre has submitted that if the intermediary platform falls under the Significant Social Media Intermediary (SSMI) category as defined in the IT Rules, 2021, then as per rule 4(8) the SSMI is expected to issue a prior notification to the user explaining the action being taken and the grounds or reasons for taking such action.

"In this case, Twitter falls under the category of SSMI. Hence rule 4(8) applies to Twitter," the Centre has stated.

Furthermore, it has been stated that such platform may give prior notice to the user and seek removal of specific information or content that violates the platform policies or the IT Rules, 2021.

Only in cases where the majority of the contents/posts/tweets in a user account are unlawful, the platform may take the extreme step of taking down the whole information or suspending the whole account, the Centre has said.

Centre has submitted that any account can be suspended or de-platformed only if the same is required to be blocked in the interest of sovereignty and integrity of India, is unlawful and prohibited under the extant law in force, on the orders of the lawful notice by an appropriate government or its agency, based on the court orders or if information in the account is grossly unlawful.

"In all other cases, the user need to be given a prior notice and a transparent process of natural justice including the right to approach the grievance officer of the platform and the suitable provision for appeals so as to ensure a transparent, fair process that meets all the principles of natural justice. Any complete de- platforming is against the spirit of Articles 14, 19 and 21 of the Constitution of India that every citizen is entitled to," the affidavit reads.

Thus, it states that except for the exceptional circumstances, an SSMI is expected to issue prior notice to the user before taking any action on the user account, failure of which may amount to a violation of IT Rules 2021, specifically Rule 7 which seals with Non-observance of Rules.

"…if only some portion or few contents are unlawful then the platform may take proportionate action of removing such alleged information alone and not completely suspend the user account. The platforms must respect the fundamental rights of the citizens and should not take down the account itself or completely suspend the user account in all cases. That the taking down the whole information or the user account should be a last resort and the platform may at all times, endeavor to guard the users' fundamental rights by following the principles of natural justice and afford reasonable time and opportunity to the user to explain his stand," the affidavit states.

It adds "The Answering Respondent submits that the bulwark of our constitution is a system of checks and balances, ensuring the accountability of all institutions in India's democracy. If any person/body corporate/authority/institution etc. is allowed to go unchecked or unregulated under the legal framework, then it can act on its own whims and fancies, thereby defeating natural and inalienable rights."

Centre has further averred that SSMIs must be held accountable for subjugating and supplanting fundamental rights like the right to freedom of speech and expression, otherwise the same would have direct consequences for any democratic nation.

"It is humbly submitted that liberty and freedom of any individual cannot be waylaid or jettisoned in the slip stream of social and technological advancement," it adds.

Justice Yashwant Varma has been hearing a bunch of pleas wherein various petitioners have approached the Court over suspension of their twitter accounts, including the petition filed by Senior Advocate Sanjay Hegde in the case pertaining to suspension of his Twitter account.

Earlier, opposing the Hegde's petition seeking restoration of his suspended Twitter account, Twitter had claimed that it was not discharging a public function and is not amenable to writ jurisdiction in India under Article 226 of the Constitution.

The matters will now be heard on April 18.

Case Title: DIMPLE KAUL v. UOI and other connected matters