Twitter to Karnataka HC: Centre Cannot Issue General Suspension/Blocking Orders Unless Violation of Section 69(A) of IT Act

Bhuvana Marni

Published on: October 18, 2022 at 23:40 IST

The microblogging platform today argued before the Karnataka High Court in the continuing dispute over the Centre’s decision to ban allegedly offensive Twitter accounts that there could not be an omnibus general blocking order unless the content violated the reasons listed in Section 69(A) of the Information Technology Act.

The provision gives the Centre the authority to order any intermediary to block specific information for reasons that must be documented in writing, if the Center determines that doing so is necessary:

(i) for maintaining the sovereignty and integrity of India, defending India,

(ii) maintaining the security of the State,

(iii) maintaining friendly relations with foreign States,

(iv) maintaining public order, or

(v) preventing incitement to the commission of any offence related to the aforementioned that is punishable by law.

Twitter’s senior attorneys Arvind Datar and Ashok Haranhali argued that information cannot be censored if it does not violate Section 69(A).

They further stated that such restraining orders have an impact on both the intermediary’s and principal users’ rights. They argued that intermediaries have a right to contest blocking orders issued by the authority.

“If it is my platform and the 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 me to post content and have conversations. Here the case is worse as I am not allowed to communicate the blocking order to the user,” Datar submitted.

He contrasted the laws and compliance procedures in the US, the UK, and the EU to make the case that some content may only be removed instantly and without warning when it is obscene.

He emphasised that procedural fairness must be guaranteed in all such situations.

“Only in the case of abhorrent content like child porn, direct statutory intervention is mandated. This dispensation of procedural fairness s 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 empowers 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 alluded to the expression “reasons to be recorded” included in Section 19A and questioned whether the public might request access to these justifications.

In this case, Haranhali argued that by preventing access to the blocking order, both the user and the intermediary lose their ability to review it and challenge to its legality.

He continued by saying that until users have the right to check to see if the proper procedure has been followed, the protections of the Shreya Singhal decision cannot be fulfilled.

He continued by saying that because their rights were at risk, the order had to be made available to both the users and the middleman. Then Haranhali gave in:

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

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

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

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

A blocking order bans the user from tweeting any further, said Haranhalli, who then cited Section 95 of the CrPC (Power to declare certain publications forfeited and to issue search warrants for the same).

“If they go on blocking every account without giving valid reason then the platform itself is affected.”

Application for Implementation by Sanjay Hegde rejected Senior Advocate Aditya Sondhi brought up an impleadment application that Senior Advocate Sanjay Hegde, whose Twitter account was suspended in 2019, had filed during the hearing.

The Delhi High Court is now hearing Hegde’s appeal about the suspension of his account.

In this instance, he said that even if Twitter is complaining about the Centre’s blocking orders, the social media site had treated him similarly by suspending his account due to several 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 the similar subject matter is raised, is a feeble ground to the entry of parties before this court.”

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

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