Twitter Can Suspend User Account Only If Majority Content Posted Is Unlawful: Centre Tells Delhi High Court In Sanjay Hedge's Case

In the petition filed by Senior Advocate Sanjay Hegde seeking restoration of his suspended Twitter account, the Centre has told the Delhi High Court that the platform can take the extreme step of suspending the user account only in cases where the majority of the contents posted by such account are unlawful.

"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," an additional affidavit recently filed by Ministry of Electronics & Information Technology stated.

The Court has been told that the 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 recent stand taken by the Centre runs contrary to the earlier response filed by it in January 2020 wherein it had claimed that the prima facie issue was directly between Hegde & Twitter and that Hegde had failed to plead or place any evidence to show that the Ministry had violated any provisions of the IT Act or failed to perform any of its statutory powers.

It is however pertinent to note that the IT Rules were notified in the year 2021 and were not in force then.

Citing depiction of "hateful imagery", Twitter had blocked Hegde's account in October 2019, for posting the picture of August Landmesser wherein he refused to the Nazi salute at a rally, when everybody around him was doing it; a picture Hegde claims has been up for several months as his cover photo.

Following a massive virtual uproar in his favour, Twitter restored his account the next day, only to block it again, this time for sharing the poem titled "Hang Him". Hedge said that the said post dated back to 2017, where he had retweeted the poem posted by Kavita Krishnan, which dealt with the hanging of two peasant revolutionaries in Independent India.

In the recent response, 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.

Furthermore, Centre has submitted that if the intermediary platform falls under the 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.

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.

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.

Justice Yashwant Varma has been hearing a bunch of pleas wherein various petitioners have approached the Court over suspension of their social media accounts, including the petition filed by Senior Advocate Sanjay Hegde.

About the Case

Hegde had contended that the said posts did not violate any of Twitter's posting norms.

The picture of August Landmesser does not fall under the category of 'hateful imagery' and the Poem is a comment against capitalist system which denies basic rights to the poor, Hegde had said. He added that the cover image was an iconic picture against majoritarianism and was not a Nazi image as the Twitter's profiling system thought.

He had added that he had only quote tweeted the original tweet containing the poem and that non-removal of the original tweet depicted that the Twitter's action in blocking his twitter handle "@sanjayuvacha" was arbitrary and illegal.

Case Title: Sanjay R Hegde v. Ministry of Electronics and Information Technology and Anr