Big tech companies running large social media platforms prefer engaging with Governments, particularly in developing countries, behind closed doors. It is rare to see them openly confronting Governments in courts. However, there comes a point when pacifist posturing contradicts the core values which a company purports to uphold. An inability to stand up leads to the kind of situation Facebook finds itself in with respect to hate speech globally. After exposés in Myanmar, Sri Lanka and India in recent years, and owing to a general reluctance to confront digital authoritarianism, Facebook’s content moderation practices have been called into question. Perhaps the name change to Meta was, at least partially, intended to cleanse the company’s brand image. In this context, Twitter’s recent petition filed last month in the Karnataka High Court, presumably aimed to protect the integrity of its brand from a Government intent on restricting unpalatable speech, is an unprecedented development.
Twitter’s petition challenges the legality of multiple orders issued by the Union Ministry of Electronics and Information Technology (‘MeitY’) under Section 69A of the Information Technology Act (‘IT Act’). Twitter has sought the quashing of these orders for being procedurally and substantively deficient in relation to the requirements of section 69A, incompatible with India’s free speech protections, and disproportionate for targeting entire accounts instead of individual posts. During the first hearing on July 26, the court admitted the case, asked the MeitY to respond, and directed Twitter to file impugned takedown orders in a sealed cover to ensure confidentiality. The next hearing is on August 25. To appreciate the significance of Twitter’s petition, the laws implicated here need to be closely scrutinised. The power for content censorship under the IT Act can be traced to section 69A. Under this provision, the Union Government can direct intermediaries (including social media platforms) to disable content for public access on grounds that are largely coextensive with the constitutionally permissible restrictions to speech. This power has been operationalised through the 2009 Blocking Rules, which prescribe the procedure for issuance of blocking directions.
The constitutionality of section 69A and 2009 Blocking Rules, along with the infamous Section 66A of the IT Act, was challenged before the Supreme Court in 2012. Through its Shreya Singhal judgment in 2015, the court invalidated section 66A owing to its vagueness. However, section 69A, which had also been challenged before the court, was upheld primarily for three reasons. First, the grounds for invoking this provision are relatable to the reasonable restrictions on free speech under Article 19(2) of the Constitution. Second, the requirement of issuing blocking directions through reasoned written orders facilitates challenging them (if necessary) by resorting to the remedy under Article 226 of the Constitution. Third, the 2009 Blocking Rules provide safeguards against the arbitrary exercise of section 69A, including a pre-decisional hearing for originators (persons who generate or transmit content). Given the vital constitutional issues involved in this case, it would be a travesty if it myopically devolves into an ‘American Big Tech Company versus The Indian Government’ battle before the court, for what is really at stake here are cherished liberties of the social media-using public.
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