On January 16, the X account (formerly Twitter) of Hindutva Watch, an independent research initiative that documents hate crimes against India’s religious minorities and marginalised communities, was withheld in the country in response to a legal demand. A search for the website’s X handle, which had over 77,000 followers, resulted in a blank page with a notice confirming the action.
Its founder Raqib Hameed Naik later clarified that the social media giant withheld the account following a legal demand by the Indian government alleging that it had violated provisions of the Information Technology Act, (IT Act) 2000. He was, however, not intimated as to which content violated the law.
Mr. Naik said that the move was “shocking” but “not surprising” since Prime Minister Narendra Modi’s regime “had a history of suppressing free press & critical voices”.
In September last year, the group had published a study that revealed that the first six months of 2023 alone saw over 250 documented gatherings involving anti-Muslim hate speech, most of them in States ruled by the Bharatiya Janata Party (BJP) and nearly 70% in States with legislative elections either in 2023 or 2024.
This is, however, not the first instance of X, which has its fourth-largest market in India with over 38 million users, complying with the government’s takedown directives. In 2021, following the widespread farmers’ protests, it shut down close to 250 accounts that were critical of the contentious farm laws. Later, the social media network’s then CEO Jack Dorsey said in an interview that the move was preceded by the government threatening to shut down its operations and raid its employees.
Similarly, last year it agreed to block more than 120 accounts belonging to prominent politicians and activists in the aftermath of an internet shutdown in Punjab during the search for Sikh separatist leader Amritpal Singh Sandhu. According to the company’s transparency disclosures, India was among the top four countries directing it to take down content between January and June 2022.
In the recently concluded winter session of the Parliament, the Centre disclosed that between 2018 and October 2023, it sent 13,660 blocking orders to X.
Amid the increasing requests for censorship, X sued the Indian government in July last year, contending that its blocking orders were “arbitrary” and “disproportionate.” However, the Karnataka High Court dismissed the challenge and imposed an astounding cost of ₹50 lakh for not complying with the disputed orders for over a year. An appeal has been filed against the verdict and is being heard by a Division Bench of the High Court.
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Censorship regime
Under Section 69A of the IT Act, the government can issue blocking orders in cases of emergency, on grounds that are largely coextensive with constitutionally permissible restrictions to speech such as sovereignty and integrity of India, friendly relations with foreign States, and public order among others. The procedure to do this is detailed under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, (Blocking Rules) 2009. If such orders are defied, social media platforms risk losing their “safe harbour” protection under Section 79, which exempts them from regulatory liability for third-party content shared by users on their platforms.
Further, Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (as amended in 2023) imposes an obligation upon social media intermediaries to take down any flagged content that violates the law within 36 hours.
X will typically block tweets only within a specific jurisdiction that has issued a “valid legal demand” or where the content has been found to violate local laws but will let them be visible in other parts of the world. The only tweets that are blocked globally are those that violate the company’s Terms of Service. For instance, Hindutva Watch’s X account has been withheld only in India but remains accessible globally.
However, last year, investigative journalist and transparency activist Saurav Das’s tweets on Home Minister Amit Shah were taken down globally in adherence to an order passed by the Punjab & Haryana High Court in a suo moto contempt proceeding. Expressing concerns over the precedent that the order sets, Mr. Das pointed out that he was neither impleaded as a party to the proceedings nor given a fair opportunity of hearing.
“The order of the court is problematic because a tweet that may violate laws in India, may not do so in the U.S. or the UK. I was not connected to that matter at all and somehow my tweets were made part of the list of URLs that were ordered to be blocked,” he told The Hindu.
Under the IT Rules, an inter-departmental committee comprising bureaucrats from the Law Ministry, Home Affairs Ministry, and Ministry of Information & Broadcasting among others recommends blocking of websites and social media accounts. A review committee constituted under the rules is also to assess, once every two months, if the blocking orders issued are valid. It also has the power to revoke such orders. However, as per data released by the government last year, the review committee has not set aside any blocking order since 2014. No records on such takedown orders are maintained by the committee either, according to an RTI application filed by Mr. Das.
The rules for Section 69A also stipulate an emergency mechanism that permits the IT secretary to pass “interim blocking orders” at the recommendation of the designated officer. However, the blocking committee has to be convened within 48 hours of passing of such an order to issue its recommendations, following which the IT secretary will pass a final order.
Confidentiality woes — information blackhole
Rule 16 of the Blocking Rules requires all blocking requests by the government and the subsequent actions taken by social media intermediaries to remain confidential. This implies that a user’s account or tweets can be taken down without saying exactly why.
Obtaining blocking orders by filing RTI requests also proves a Sisyphean task and rarely results in any redressal. In May 2021, X temporarily blocked the account of actor Sushant Singh, allegedly without informing him about the action. Subsequently, with the help of the Internet Freedom Foundation, he filed RTI requests with the ministry seeking an explanation for the takedown.
In response, the ministry cited Rule 16 of the Blocking Rules as well as Rule 8(1)(a) under the Right to Information Act, 2005 (the RTI Act) to deny any information on grounds of national security, sovereignty and integrity of the country.
“Rule 16, which is the confidentiality requirement, poses an impediment to challenging blocking orders because you cannot conjure up a good defence if you don’t even know what you are defending yourself against. The standard response that we have received to most of the RTIs that we have filed even those on behalf of the originator of the content, is that no reason can be provided due to the rule’s operation,” says Radhika Roy, Associate Litigation Counsel with the Internet Freedom Foundation.
Echoing similar concerns, X contended before the Karnataka High Court that Rule 8 requires the government to make reasonable efforts to notify the person or the intermediary before passing any such blocking orders. Relying on a textual interpretation, the Court however dismissed the claim by underscoring that the phrase “person (i.e., user) OR intermediary” in the provision denotes that notifying only X and not the aggrieved users qualifies as sufficient adherence by the government. It also ruled that the Supreme Court’s verdict in Shreya Singhal v. Union of India upholding the public right to receive information on any form of government censorship is not sufficient to convert an “or” into an “and.”
“Under the existing provisions, the government is the judge, jury, and the executioner. This is really concerning given the number of URLs that they are blocking. The fundamental right to freedom of speech cannot be so casually censored,” Mr. Das notes.
In 2018, the Ministry of Electronics and Information Technology (MeitY) blocked a satirical website called “Dowry Calculator” founded by journalist and film critic Tanul Thakur. He was neither provided a copy of the blocking order nor informed of the exact grounds under which his website was blocked.
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In response to an RTI request, he was informed that the website had been blocked following a written communication by former Union Minister of Women and Child Development Maneka Gandhi and that a copy of the blocking order could not be provided owing to Rule 16. He approached the Delhi High Court accusing MEITY of exercising its blocking powers “in a manner that fundamentally abrogates the principles of natural justice”.
On May 11, 2022, the court directed MEITY to provide a copy of the takedown order to Mr. Thakur and also afford him a post-decisional hearing before the inter-ministerial committee reviewing the case. However, MEITY decided to continue the ban even after the hearing. In January last year, the Court sought the Centre’s response to a fresh petition challenging MEITY’s decision to sustain the ban. The matter is slated to come up for hearing next on January 30.
Although the order has set a good precedent for other cases challenging internet censorship, Mr. Das says that an “authoritative pronouncement” is the need of the hour. “Otherwise the government can just say that the order granting a post-decisional hearing only applied to the facts of that particular case,” he says.
‘Prior restraint’ on free speech
Concerns were also raised against the government’s power under Section 69A to block an entire X account instead of just the allegedly offending tweets. X argued that the takedown of an entire account results in an absolute embargo not only against the existing information but also against all future information that could very well be innocuous.
Highlighting that such an interpretation of Section 69A would defeat the larger intent of the Parliament, the High Court observed, “A tweet-specific ban may encourage the tweeter to get into ‘better luck next time’ approach. Instead, a ban that extends to account could serve a deterrent effect and thus subserve the objective of the statute.”
Ms. Roy points out that such a digital prior restraint could induce a chilling effect on the freedom of speech of online platform users. “The ruling allows disproportionate power to be exercised by the government contrary to the Puttaswamy verdict,” she says.
Concurring, Mr. Das asks, “Can you ban an entire account preemptively? Can the government restrict free speech in anticipation that something might be posted in the future? It is a legal question that the courts need to answer.”
Impact on press freedom
According to a report by Rest of World, which accessed the company’s self-reported data, X has significantly increased its compliance with government orders for censorship since Elon Musk took over. Notably, the data revealed that it did not decline a single takedown request as it had done several times before the takeover.
Highlighting the disproportionate impact that this could have on journalists, Mr. Das says, “For journalists like me who are freelancers writing for alternate media spaces, social media plays a pivotal role for our work to reach our audience. Scuttling this medium could adversely affect our work. If such takedown orders persist, many X handles which do critical investigative work are going to suffer.”
He adds that in the absence of any checks and balances, such a censorship framework tilts largely in favour of the government.
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Regulatory reforms
According to Ms. Roy, the biggest limitation of the existing regulatory framework is an acute lack of transparency. “Greater transparency will reduce arbitrariness since the reasoning given for the issuance of blocking orders is quite vague in certain cases. For instance, if a person were to post any content that may not be palatable to the government, the account can be taken down without citing any reason under the garb of the confidentiality requirement. There is no way of knowing if it is a mala fide takedown order or if there is actually any merit in it.”
She further outlines that there should be a standardised procedure to prevent instances where information regarding blocking orders is available to some while denied to the rest.
“There needs to be an independent reviewing authority because the existing review committee of the government is a sham. It has not revoked a single blocking order since 2009. Since it is an inter-departmental committee, the opinion of senior bureaucrats will rarely be overruled. It is crucial that the committee independently decides if the allegedly offending content is worth censoring or not,” Mr. Das asserts.
On April 6 last year, the MeitY notified the IT Amendment Rules, 2023, which authorise a fact check unit of the Union Government to identify “fake or false or misleading” online content “related to the business of the Central Government” and demand its removal. This could augment censorship by enabling the government to be the final arbiter of permissible speech on the internet. Last year, the Bombay High Court reserved its verdict in a batch of petitions challenging the constitutionality of the Rules.
Published - January 27, 2024 04:11 pm IST
