'Purely Voluntary Service In Commercial Capacity Not Public Function; Not Amenable To Article 226': Twitter Tells Delhi High Court In Sanjay Hegde's Case

Hegde has invoked the High Court's writ jurisdiction, saying that (i) Twitter imparts a public function; and (ii) nature of activities undertaken by Twitter is in furtherance of a Fundamental Right under Article 19(1)(a).

The company on the other hand claims that for any activity to be classified as a 'public duty', it is necessary that a positive obligation is cast to discharge that duty [Andi Mukta Sadguru v. V Rudani, (1989) 2 SCC 691].

"The requirement of the existence of such a positive obligation is therefore sine qua non for an activity to be a public duty…Efforts which are purely voluntary cannot be said to have the necessary public element in them," it has said.

It is Twitter's case that its services are subject to certain contractual terms and conditions, which any user has to agree upon for availing the services on the platform. It is alleged that since Hegde failed to comply with such obligations, his user account was suspended.

The company has also claimed that it does not qualify the 'test of affinity with sovereign functions' and for this reason too, it can be said that it does not discharge a public function. "The provision of services on Twitter has no relationship to any function which is performable by the State in its sovereign capacity," the affidavit filed by Twitter Inc. states.

In G Bassi Reddy v. International Crop Research Institute, (2003) 4 SCC 225, the Supreme Court had observed, "Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity."

So far as second limb of Hegde's argument regarding activities in furtherance of a Fundamental Right is concerned, the company has submitted,

"when operation of a law is attracted by reason of a contract which a person is free to enter into, Article 19 has no application."

It is further pointed out that in the case of Jatya Pal Singh v. Union of India, (2013) 6 SCC 452, the Supreme Court had rejected the argument that the right to impart and receive information being a species of the guarantee under Article 19(1)(a), private telecom service providers are discharging a public function.

The Top Court had observed that all telecom operators are providing commercial service for commercial considerations. It held,

"in order for it to be held that the body is performing a public function, the appellant would have to prove that the body seeks to achieve some collective benefit for the public or a section of public and accepted by the public as having authority to do so."

Similarly, Twitter also claims to be working for a "commercial agenda". It states,

"Myriad activities of private non-State entities may touch upon fundamental rights, but the same is not a sufficient predicate to bring them under the writ jurisdiction of the High Courts."

Lastly, the company states that it is not in any manner a State protected monopoly (which was a criterion laid down by the Supreme Court in Ramakrishna Mission v. Kago Kunya, 2019 SCC Online SC 501 for determining nature of function of an entity).

Further, its services extend beyond the territorial boundaries of India and it cannot be said that it owes a duty to the Indian public to facilitate free speech and expression.

"Therefore, no matter from which prism the present is observed, the provision of services on Twitter is not in any manner a public function, which would render the Respondent No. 2 amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India," the company has claimed.

Twitter has further stated that if Hegde has any grievance, he can avail of the mechanism provided under the Information Technology Act, 2000. However, he cannot be permitted to give a purely contractual dispute the colour of a public function.

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.

Hegde has 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 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 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.

Recently, former US President Donald Trump filed a lawsuit against Twitter and other tech giants Google and Facebook, for suspension of his social accounts in January over public safety concerns in the wake of the Capitol riots. Trump has claimed that he is a 'victim of censorship' and if they could ban a president, "they can do it to anyone".