Twitter Habitually Non-Compliant, Can't Decide What Content Will Threaten National Security: Centre Opposes Plea Against Blocking Orders

The government further alleged that Twitter is a "habitual non-compliant" platform and the instant petition is nothing but an attempt to challenge the compliance mandated under law.

"Many blocking directions that were issued over a period time (some of which more than a year) were belatedly complied by the Petitioner...The Petitioner deliberately remained non-compliant and defiant to the laws of the land. Only on the diligent follow up of the Respondent No.2 and upon the issuance of show cause notice dated 27.06.2022 the Petitioner for reasons best known to it suddenly complied with all the blocking directions and then has challenged blocking directions for specific set of 39 URLs," the reply affidavit states.

Background:

In June, MeitY had served Twitter a letter setting out serious consequences of non-compliance of blocking orders issued under Section 69A of the Information Technology Act, including initiation of criminal proceedings against its Chief Compliance Officer. One last opportunity was granted to the company to comply with MeiTY's orders, with a warning that further delay would lead to Twitter losing its safe harbor immunity as available to it under Section 79(1) of the IT Act.

Consequently, in July, the company approached the High Court contending that several blocking orders issued by the Indian government are "procedurally and substantially deficient of the provision" and "demonstrate excessive use of powers and are disproportionate".

Twitter claimed that the said Blocking Orders are either disproportionate, arbitrary or fail to provide notice to the originators of the content. Moreover, several could pertain to political content that is posted by official handles of political parties and thus, blocking of such information would be a violation of the freedom of speech guaranteed to citizen-users of the platform.

The Court had then granted some time to the Centre to file its response and the case is slated to be heard on September 8.

Meanwhile, the following grounds have been urged by the Centre:

Petition not maintainable

At the outset, Centre has contended that the remedy of writ (of any nature) as provided under Article 226 or 32 of the Constitution is not available to a 'foreign commercial entity' which has merely been allowed to conduct its business operations (only for commercial profits) in India.

"The petitioner is neither a citizen of India, nor is a natural person; dehors the above, the petitioner is not even claiming a derivative right of any of its shareholder (an Indian citizen) to invoke the Constitutional remedy of Article 226 of this Hon'ble Court to seek the nature of reliefs as claimed in the present petition. As such for this reason alone the present writ petition is liable to be dismissed."

It is also claimed that present petition is camouflaged as petition invoking administrative non-compliance, however, on piercing the façade of pleading, it becomes evident that what petitioner is seeking, in guise, is protection of information and data made available on its platform by third party from being removed by government authorities in exercise of their statutory powers.

The reply says, "Behind the administrative façade set up in the present petition, in pith and substance, is seeking to defend Article 19 (1) (a) rights of its users. It is submitted that the petitioner, being a foreign entity per se does not have any Part III rights. The only statutory right it has is conferred to it under Section 79 of the IT Act, 2000, which does not empower it to solicit hosting or defend removal of the information & data of third party hosted on its platform on the ground of violation of article 19, 14 and 21. The intermediary as per the scheme of the IT Act has no right or locus, at all, to take up the case of its users against any orders passed by the competent authority under section 69A of the Act or else it loses its safe harbour protection."

Accounts blocked are unverified:

Centre claims that the accounts sought to be blocked by it are unverified accounts and there is no evidence to show whether the said accounts are operated by citizens of India.

The reply reads, "There is no fundamental right of anonymity under Part III of the constitution. The only right guaranteed is the right to remain silence. The petitioner cannot defend the Article 19 rights of its unverified, untraceable and anonymous users. The said right is only available to an identified citizen of the country."

It adds, "Article 21 rights are not available to artificial juristic entities, much less, to any foreign commercial entity. The present petition even if it attempts to allege breach of Article 21 rights, is therefore, not maintainable at the instance of the petitioner foreign company."

Further, it is said the petitioner whose predominant activity and purpose of incorporation is to engage into a commercial activity (which is propagation of speech) can be restricted on the ground of public purpose in addition to the grounds mentioned in Article 19(2) of the Constitution of India.

Notice to Users not required:

Twitter has challenged the blocking orders passed by the competent authority on the ground of lack of notice to the user as provided under Rule 8 of the Blocking Rules. It is claimed the Respondents by directing the intermediary to remove the content/ account of users without providing a notice to the user is in direct violation of the decision of the Supreme Court in Shreya Singhal case.

Responding to this, Centre said that where a person is not a citizen, alleged non furnishing of a notice under Rule 8 of the Blocking rules cannot be a ground of it being violative of Article 19(1)1(a) of the Constitution.

"The power contemplated under section 69A of the IT Act 2000 is a power incorporated in the Act in aid of the Constitutional powers conferred under Article 19(2) of the Constitution of India, which gives power to the Union of India to curtail the free speech right conferred to the citizens of India under Article 19(1)(a)...Furthermore, Rule 8 mandates the designated officer to identify 'the person' or 'the intermediary' for the purpose of giving it a notice in writing under the said Rule. As such under the scheme of Rule 8 of the Blocking Rules Notice either to a person or to the petitioner is sufficient."

The reply further mentions that as per IT Rules 2021, it is the intermediary which has the requisite data about the particulars and credentials of its users, therefore, it is the obligation of Twitter in the present case, to notify the users or to furnish with the designated officer the details of its user.

"Since the intermediary has itself failed to identify its users as to whether they are natural persons, citizens of India or whether they are fake, anonymous or bot operated accounts. As such, it cannot raise any grievance before this Hon'ble court for its own failure."

Blocking orders for safety of internet users:

Centre said that the 84 crore Indians using the internet have a "legitimate expectation" that their elected government would maintain safety and trust in the online world and the impugned blocking orders under Section 69A of the IT Act are issued in the same spirit.

The reply says, "Section 69A directions are used in clearly defined terms to ensure safety and trust and accountability of user harm. These are reasonable exceptions to fundamental rights of free speech and privacy guaranteed by our Constitution and our Courts. Safety and trust, and accountability and openness of the internet are legitimate and real expectations of the Indian citizens and therefore the reciprocal obligations that are cast on the intermediaries to ensure user safety, to ensure cyberspace is safe and trusted, to ensure there is accountability for user harm is absolutely legitimate and is completely consistent with the Fundamental Rights and the exemptions provided to the Fundamental Rights that the Constitution provides."

Twitter habitual non-compliant, Not taking effective steps to prevent spread of fake news:

Centre said that with the advent of internet and social media, virality of misinformation has become a serious concern, having the potential to incite public order issues, lynching and mob violence, etc. This is because unlike traditional media, the user content directly goes to publishing on online platforms, without any editorial process. Due to this, few online intermediary platforms are flooded with fake news and hate speech to a high level affecting all the jurisdictions.

However, it is alleged that Twitter is not taking effective steps to prevent the spread of such fake news or deliberate misinformation through its platform, resultantly raising issues with respect to sovereignty and integrity, national security and public order. 

"In this digital age, platforms are misused by anti-India elements and foreign adversaries for anti-India propaganda in the national and global level and create disunity and disorder in the country. Misleading content, fake news, hate speech content on religious or ethnic lines, are widely spread and it has potential to multiply in various forms or new modified contents across various other platforms. Most of these contents become viral and create issues that touch upon the sovereignty and national security and public order-related aspects. These contents have the potential to jeopardize the peace in the country. Thus it becomes essential to detect and block such misinformation content and fake news at the initial stage itself to prevent a public order catastrophe like situation in the country," the reply says.

It adds,

"The Petitioner platform has been a habitual non-compliant platform for several years. Only after reminders and show cause notices, the Petitioner has complied with blocking directions...The Constitution of India is supreme and thus laws of land have to be respected by all including users or any platforms that provides services in the country without any exception."

Centre went on to state that Twitter's content policy and takedown mechanisms are a "failure" and do not efficiently control or prevent misinformation. As a result, hate content on religious lines continues to increase in online space.

"Hate speeches targeting specific communities can profoundly affect a country like India, where diversity of culture and faith prevails. Hence, when the government directs expeditious removal or blocking of content under the law, Twitter is expected to follow the same in letter and spirit. Unfortunately, while Twitter is keen to protect its business interests, it is non-compliant with laws. Hence it is the onus of the platforms to ensure that their platforms are free of vice and objectionable content."

Blocking order in compliance of Information Technology Act

Centre has submitted that Titter falls within the purview of IT Act which regulates online social media intermediary platforms and thus, the site is bound to comply with the directions and orders issued under the authority of extant law. The IT Act provides for blocking of information from public access under certain specific circumstances.

"The IT Act, 2000 will override any policies made by private platforms such as the Petitioner herein. No platform is exempt from compliance for reasons of jurisdiction, or nationality or non-applicability of laws or tags of global company. Foreign platforms providing services in the country shall not be entitled to claim that the Indian Laws and Rules are not applicable upon them. Any such claim is legally untenable."

Compliance of Section 69 of the Act

It is claimed that the government does not suo moto monitor the content of the online space. However, in the regulation of online space, the central government has powers to block public access to computer resources under certain limited circumstances. The government exercises this power through Section 69A of the IT Act, 2000. It is submitted that, the Designated Officer (Respondent No.2 herein) is empowered under Section 69A and its Rules to block the public access of any information transmitted, received, stored, or hosted in any computer resource.

It informed the Court that in the instant case, the Review Committee specifically constituted under the Blocking Rules, 2009 has already reviewed the blocking directions in respect of the 39 URLs involved in this case and has confirmed the validity of the blocking directions.

Twitter violates Freedom of Speech & Expression:

In its plea, Twitter has claimed that the blocking directions under Section 69A are inconsistent with Indian law and violate the fundamental right to free expression.

Responding to this, Centre said that in the recent past, the company has itself completely blocked or terminated many Indian user accounts without any prior notice or affording any reasonable opportunity (Read examples here and here). But surprisingly, in this case, the company has sought to revoke account level blocking and permit tweet level blocking.

"Petitioner has not afforded any prior notice or reasonable opportunity to the users to respond to or rectify the violation. Instead, the Petitioner has, without seeking any explanation, blocked the entire account, followed a strict principle of suspending or terminating the user accounts without affording any reasonable opportunity and thereby seriously violating their freedom of speech and expression. Hence, the Petitioner has no right to claim that it protects the freedom of speech and expression."

Centre said that all the directions issued by it (including the 39 URLs) are within the scope of Section 69A and in case Twitter is aggrieved by any direction or order, then it must first comply with the same and seek review before the competent statutory authority.

Case Title: TWITTER, INC v. UNION OF INDIA

Case No: WP 13710/2022