Twitter has not complied fully with the Indian government’s statutory orders under Section 69A of the Information Technology (IT) Act to block hundreds of accounts for allegedly posting messages suggesting that the Prime Minister was planning a genocide against farmers. Twitter has said that the government’s blocking list had accounts of journalists, activists, and politicians whose accounts appear to be bonafide; that their posts are legitimate expression; and that it reasonably believes that keeping them blocked would be a disproportionate act contrary to both Indian law and the platform’s charter objectives. This apparent defiance has not gone down well with many, including the government. Independent verifications revealed that many such accounts (for example, the Kisan Ekta Morcha) did not post messages suggesting a genocide plan, although all of them had posted in favour of the farmer protests and against government measures to quell the protests.
Criticism against Twitter
Criticism against Twitter’s stand seems to be three-fold. One, Twitter is an intermediary bound by statutory orders of the government under the Act, and its refusal shows a lack of respect for Indian law. Two, Twitter, as a private company, cannot adjudicate or sit in appeal over the government’s judgment on what is proportionate or lawful. It may challenge the order in a court, but cannot simply choose to comply partially or not at all. Three, Twitter’s blocking of Donald Trump’s account even while he was the sitting President of the U.S. and its refusal to block here shows it denying parity to India with the U.S. Four, its defiance indicates the increasing power and impunity of Big Tech, requiring a clear and unequivocal zero tolerance response.
The first two arguments miss the vital detail that Twitter, or any person for that matter, is only bound by lawful orders of the state. Twitter being a private company or a foreign company does not change that. Once there is a blocking order, an intermediary is within its rights to take a considered view on whether the order is lawful; to what extent it is lawful; and to what extent it must comply to achieve substantial compliance acceptable in law. Lawfulness of an order is not merely about citing the statutory provision, being on a letterhead with the national emblem on it, and having the designated officer’s signature and seal. For an order to be lawful, it needs to demonstrate having satisfied all statutory conditions and conditions cumulatively evolved through judicial reasoning, which takes into account constitutional provisions and international human rights jurisprudence.
In a polity in which the government is limited by a Constitution and laws, different kinds of state action entail varying consequences and command varying degrees of deference. A government order of the non-statutory type is not quite the same as a government order validly issued under a statute (where the government is acting as a delegate of Parliament). Neither of them commands as much deference as an express provision of law. Even an express provision of law differs from an order of a constitutional court in that respect. One may add, even compliance with orders of a constitutional court is subject to one’s own studied sense of constitutional reason.
In this case, Twitter appears to have justifiably formed an informed opinion that the blocking orders, even if validly issued under Section 69A(1) of the IT Act, are partly not lawful and that it is confident of succeeding in a challenge to the orders should the government take any coercive action to enforce them.
Twitter’s actions desirable
Quite apart from the social media giant being within its rights to defy government orders to the extent it views them as not being lawful, it is indeed desirable that it does so. It is undeniable that platforms such as Twitter have significant control over how people’s right to free and informed speech is fulfilled. Mechanically following government orders without regard to their lawfulness, necessity or proportionality will seriously impact their audience’s fundamental rights. The assumption of this responsibility to defy government orders is consistent with the power they wield. The tension between two powerful entities — the government and social media platforms — on questions of which speech to promote and whose speech to curtail is healthy and constructive. It acts as a check on the arbitrary power that would prevail if both were on the same side as a matter of routine. Therein also lies the response to the argument about the increasing power and impunity of Big Tech.
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This functional tension as demonstrated in this case, however, is no alternative to structural and institutional solutions that must be found to limit the power of both the government and Big Tech and to enforce their obligation to act rationally and responsibly. Big Tech has often sided with the government (and the political party in power), hurting its users’ rights. The Wall Street Journal report on Facebook India’s failure to act on the disinformation-laden and incendiary posts of a member of the BJP on the consideration of not wanting to be it loggerheads with the Central government is a case in point.
Red Fort is not Capitol Hill
Kisan Ekta Morcha is not Donald Trump and Red Fort 26/01/2021 is not Capitol Hill 06/01/2021. Mr. Trump’s Twitter account was operational with no limits on reach throughout his tenure despite repeated calls for curtailment pointing to his messages being persistently incendiary, inciteful and promoting lies. Even leading up to the day of the Capitol Hill riot, his account had been spreading misinformation (or what Twitter reasonably concluded as misinformation) calling into question the election results to the office of the President. Twitter initially resorted to the less intrusive measure of flagging his content, followed by limiting its reach before suspending his account. His account’s permanent ban was the last step in the series of measures, after an appraisal of his Twitter posts’ effect on the Capitol Hill riots and the probability of further imminent lawlessness. All of these actions were suo motu and not under government orders.
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If anything, the present episode is arguably among the rare instances that Twitter has accorded parity to its Indian audience with that of its U.S.’s — choosing to take an independent view of the matter and not mechanically complying with the wishes of the national government. Social media platforms enjoy better immunity and warmer first amendment protection under U.S. law that help them better guard their users’ interests against government action. The attempt to extend similar safeguards to Indian users, who also in theory are guaranteed the same protection under a universal human rights regime, is welcome. That would also be consistent with the Guiding Principles on Business and Human Rights endorsed by the UNHRC.
Prasanna S. is a Delhi-based lawyer and a founding member of the Article 21 Trust which works on issues at the intersection of digital rights and welfare. Views are personal. He holds no brief for Twitter and derives no benefit (percuniary or otherwise; direct or indirect) from the company