Centre to allow only senior officials to flag ‘unlawful’ content for blocking

A senior government official said that there had been instances in some states, where police officers at the rank of sub inspectors and assistant sub inspectors were sending content notices to social media companies. “We felt there was a need to create a mechanism where not any officer can issue such notices, and that power is only available to the very senior ones,” this official said.

Currently, the rules say that such directions can be issued by an “appropriate Government or its agency,” without specifying any particular designation of the official.

“Accountability of the government increases with this change. And we will be giving a reasoned intimation whenever any such order is passed. And the orders will be passed at a fairly senior level, JS and above, and DIG and above,” IT Minister Ashwini Vaishnaw told reporters.

To be sure, Elon Musk-owned social media platform X had challenged this specific provision of the IT Act, saying that the government was trying to establish a “parallel” content blocking regime, under which it had empowered any official at the Centre and state levels to issue content notifications. The Karnataka High Court had ruled in favour of the Central Government last month.

Senior officials briefing the media said the changes the government was now bringing about were not related to X’s arguments and have no relation to them. The amendments, which are expected to kick in from November 15, are expected to specify that the content intimation to platforms must clearly specify the legal basis and statutory provision, the nature of the unlawful act, and the specific URL/identifier or other electronic location of the information, data or communication link to be removed.

All intimations issued under Rule 3(1)(d) will be subject to a monthly review by an officer not below the rank of Secretary of the appropriate Government – the IT Secretary in case of the Centre, and either the Home or IT Secretaries at the state level.

On the face of it, the changes the IT Ministry is now making to the law, seem to address some of the concerns X had raised in its plea. As per Section 79(3)(b) of the IT Act, online intermediaries like X can lose their safe harbour protections if they fail to block access to content which has been flagged by an “appropriate” government agency. Safe harbour protections are key to the functioning of social media platforms, as they afford them legal immunity from hosting user generated content.

This process is separate from Section 69(A) of the IT Act, which also allows for content blocking in cases affecting the “sovereignty and integrity of India, defence of India, security of the State,” whereas under Section 79 (3)(b), any “unlawful” content can be directed to be removed.

In fact, one of X’s contentions in its case was that the IT Ministry had “directed” all central ministries, State governments, States’ deputy generals of police, and effectively tens of thousands of local police officers, that they are authorised to issue information blocking orders under Section 79(3)(b), outside the Section 69A process.

MeitY has also provided all Central and state government agencies a “Template Blocking Order” to use to issue these “unlawful” information blocking orders, the plea had said.