Centre's Blocking Power Can't Traverse S.69A; Intermediary Entitled To Appeal: Twitter Argues Before Karnataka HC In Challenge To Blocking Orders

In the ongoing challenge to Centre's order for blocking allegedly offending Twitter accounts, the micro-blogging platform today argued before the Karnataka High Court that there could not be an omnibus general blocking order unless the content violates grounds mentioned in Section 69 (A) of the Information Technology Act.

The provision empowers Centre to direct any intermediary to block certain information, for reasons to be recorded in writing, if it is satisfied that it is necessary to do so (i) in the interest of sovereignty and integrity of India, defence of India, (ii) security of the State, (iii) friendly relations with foreign States or (iv) public order or (v) for preventing incitement to the commission of any cognizable offence relating to above.

Senior Advocates Arvind Datar and Ashok Haranhali appearing for Twitter submitted that if the content is not falling within the prohibition under Section 69(A), it cannot be blocked. They added that such blocking orders not only affect the rights of the primary user but also the intermediary, Thus, it was their case that intermediaries are entitled to challenge the authority's blocking orders.

"If it is my platform and user is blocked then I am entitled to come and say that it is not violating Section 69 A...My very platform is to enable to post content and have conversation. Here case is worse as I am not allowed to communicate the blocking order to the user," Datar submitted.

He presented a comparison of the rules and compliance mechanisms in the USA, UK and the European Union to argue that a particular content can be taken down immediately, without notice, only when it is abhorrent. In all other cases, he emphasised, that procedural fairness has to be ensured.

"Only in the case of abhorrent content like child porn direct statutory intervention is mandated. This dispensation of procedural fairness is only in cases with abhorrent violent content but not in other cases."

Datar also sought to argue that in India, the blocking orders are of permanent nature. However, on Court's inquiry if there is any provision for revocation under the Indian laws, Datar conceded that Rule 9 (4) of IT Rules empower the Secretary to revoke the order and an elaborate procedure is available.

The power of blocking is Tweet-specific & reasons must be disclosed to the user and the intermediary:

The bench referred to the expression 'reasons to be recorded' used in Section 19A and enquired whether such reasons could be accessed at the request of the public.

Here, Haranhali submitted that by not allowing access to the blocking order, the right to examine it and raise objections on the validity is taken away from both the user as well as the intermediary. He added that the safeguards of the Shreya Singhal judgement could not be met unless the users have the right to examine if the correct procedure has been followed. He added that the order must be made available to both the users and the intermediary, as their rights are at stake. Haranhali then submitted,

"Power to block is tweet specific & blocking of account amounts to wholesale block which can't be undertaken except in exceptional circumstance where the blocked account is careless tweet or the like"

Emphasising on the need to block allegedly offending tweets and not entire accounts, Advocate Haranhalli submitted,

"Suppose I write a bad book. Only the book can be banned."

However, the Court pointed that the Supreme Court has already differentiated between books and online content, given the raid speed with which the latter can be disseminated.

Haranhalli then referred to Section 95 of CrPC [Power to declare certain publications forfeited and to issue search warrants for the same] and submitted that blocking order prevents from the user from tweeting further. "If they go on blocking every account without giving valid reason then platform itself is affected."

Sanjay Hegde's Impleadment Application Rejected

During the hearing, Senior Advocate Aditya Sondhi mentioned an impleadment application moved on behalf of Senior Advocate Sanjay Hegde whose Twitter account was blocked back in 2019.

Hegde's challenge to suspension of his account is pending before the Delhi High Court. Here, he argued that though Twitter is pleading a grievance against Centre's blocking orders, the platform had meted out a similar treatment to him by suspending his account over certain tweets.

However, the Court refused to entertain the application and observed, "Merely because the applicant (Hegde) happens to be a party before another High Court where similar subject matter is raised, is a feeble ground to entry of parties before this court."

It added, "Submission of Senior Advocate that some of the pleadings before Delhi High Court are referred to by parties in the case will prejudice his client is difficult to countenance."

Compiled by Shrutika Pandey