Twitter Defends Foreign Entity's Right To Appear Before Indian Courts, Says Blocking Users Effectively Blocks Content That Isn't Even Generated

The Karnataka High Court was on Wednesday informed by Twitter Inc. that Article 3 of the US Constitution confers a Constitutional Right on Foreign National to get access to courts in the United States.

A single judge bench of Justice Krishan S Dixit had on Monday sought a clarification from the microblogging site on how laws of other countries including that of the United States of America deal with the aspect of disclosure of reasons by governments, while issuing account blocking orders to intermediaries for posting of objectionable content.

"How would the USA have treated an Indian Entity before it?" the Court had asked.

Advocate Manu Kulkarni submitted “Article 3 of the US Constitution appears to confer a Constitution Right on Foreign National to get access to courts in the United States.” To which the court said “Such a provision is absent in our Constitution.”

However, Kulkarni referred to Sections 83 to 87 of Code of Civil Procedure and argued that said provisions are structured almost on par with Article 3 of the US Constitution and provide for suing and being sued by a Foreigner. He said “I have my office in Bengaluru and services are provided in India so I am carrying on business in India.”

Kulkarni further submitted that even when Article 19 (1) is not invokable, as a corollary to Article 19 (2) as well, still the concept of reasonableness in Article 19 (incorporated in Section 69A as interpreted by the Apex court in Shreya Singhal case) would avail to his client. Thus the petition before the High Court was maintainable, he said.

Further it was said “The power to block is URL specific, not account wide, going by the test of Section 69A. An argument to the contrary cannot be sustained with the straightening of the words employed in the sections.”

Kulkarni referring to sections 69A, 69B and 70 of the (IT Act) contended that the power to prohibit availing under Section 69A, is in respect of the information that has already put on record and does not extend to information in the offing.

Reference was also made to Section 95 of the Criminal Procedure Code, which pertains to the power to declare certain publications forfeited and to issue search warrants. He said “The section speaks of books, printed material, etc. that have already come into existence and not those which have not so come into existence.”

“Thus the blocking should be of information that has already taken shape and not the one which is yet to come. The blocking is of the information and not the very author from whom the information is generated,” it was said.

Further he said “It is one thing to say that it is unsavoury content for us, but it is another to say that such content cannot be available under section 69A. Can such content be prohibited under Section 69A when such material is available in newspapers, televisions etc.”

To which the bench queried what should be the nature of content for invoking Section 69A?

“The power is tweet specific, it is perfectly in accord with the language of the section. But law is not just language, it is something more...It may amount to saying every dog will have one bite, before we term it as a mad dog. But it will be very costly to the country. Suppose a person continuously tweets say 20 tweets all the venomous then there is reason to assume that 21st tweet will also be venomous. In such a way we say it is better to block the account. Whether that is in the penumbra of the Parliamentary intent as enacted under section 69A is the consideration for the judge,” the bench orally remarked.

Concluding his submission in rejoinder, Kulkarni urged that some guidelines may have to be framed as the position taken by Union of India is not consistent. “Going by various paras in Statement of objection, no discernible standard appears in treating matters like this, therefore the stand is unjustifiable,” he said.

The court has now posted the matter for further hearing on April 17.

Case Title: TWITTER, INC v. UNION OF INDIA

Case No: WP 13710/2022