Elon Musk-owned social media platform X’s (formerly Twitter) recent lawsuit against the central government is likely to have a significant impact not only on digital regulations in India but also India-US ties. The lawsuit, filed in the Karnataka High Court early this month, argues against the use of Section 79(3)(b) of the Information Technology Act, 2000 by governments in India to issue takedown notices and block content on X’s platform. The suit also challenges the new Sahyog portal run by the Ministry of Home Affairs since last year, which provides a centralised avenue for all levels of government to issue such notices and coordinate with social media companies to ensure enforcement. X claims that the use of 79(3)(b) along with the Sahyog portal has created an unlawful censorship mechanism by attempting to bypass the procedural safeguards prescribed under Section 69A of the Act.
Section 79 is a safe harbour provision, which protects online intermediaries (like X) from liability for any third party content, information or data that is published on their platform. Section 79(3)(b), on the other hand, specifically revokes this protection if it fails to remove, or disable, access to any resource, data, information or content that is used to commit an unlawful act, after either receiving “actual knowledge” of the act or being notified by the government of the same.
It is a fact that governments in India are increasingly relying on 79(3)(b) to issue takedown notices with minimal oversight and placing the burden on social media companies to decide what might be unlawful, without clear indications as to how this determination is to be made. In this context, X’s suit is important not just for its legal implications but also its potential geo-political impact.
First is, of course, the straightforward legal issue in question, namely powers of the central government under Section 79(3) of the IT Act and consequently its control over the digital sphere. The government, in its interpretation of the provision, believes that it is well within its legal right to issue notices and enforce compliance under the section in any manner it sees fit. On the other hand, X believes, as do other social media companies, that 79(3)(b) is vague in its wording and enforcement, and the only legal way for the government to take down content is through the specific detailed process laid down under Section 69A. This is important as there is no clearly articulated process for how 79(3)(b) is actually meant to work, unlike 69A. It is possible that the safeguards provided under 69A are also meant to apply to notices under this section. It is also possible that this section is legally redundant given the Supreme Court’s ruling in the Shreya Singhal v Union of India (2015) case, which explicitly states that the procedure under 69A is the only legal way to remove online content. A final possibility is that the central government’s interpretation is, in fact, correct and legal given the Act as it currently stands.
The outcome of this legal battle will very likely shape not only how social media platforms continue to operate in India and the government’s regulatory power over the digital sphere under the current IT Act, but also how the government goes about drafting a replacement of the IT Act, such as the proposed Digital India Act.
Given global and local trends, there can be no doubt that some form of content regulation on social media platforms will continue to exist. While the court may take its time to decide on the matter, the central government should ideally see this as an opportunity to provide greater clarity on how Section 79(3) and the Sahyog portal are operationalised. It must clarify its internal processes followed while issuing notices and make it clear what happens if the social media companies do not agree with the reasoning of the notices. This will go some way in assuaging the concerns of social media companies without fundamentally changing existing policies.
Second, the larger geopolitical implications of this suit are just as significant. After all, governments in India, across all levels of the polity, irrespective of political affiliations, have been issuing takedown notices under 79(3)(b) for several years, and it seemed like all major online platforms had more or less accepted this situation until now, even if they were not particularly happy with it. However, with Musk now seen as arguably the most important person in the Donald Trump administration after President Trump himself, and the Indian government attempting to ensure it is on the right side of new American policies, X’s leadership might have felt this is as opportune a time as any to try and carve out a roomier operating space for itself, particularly Grok — Musk’s AI offering that has been integrated into X — without a significant blowback. While it might also be significant that X brought this suit, and not Meta or Google, a legal victory would automatically provide greater leeway to other social media platforms. This suit, therefore, is not necessarily just a domestic legal fight that often occurs between governments and corporates, but is part of a larger trade battle that the Trump administration is pursuing. American tech giants have been actively lobbying Trump to push for an easier global business environment for them, which the President seems sympathetic to.
The timing of the suit can also be seen in the context of what seem like other recent regulatory victories for Musk, including Starlink’s partnerships with both Jio and Airtel, and the sudden aggressive expansion of Tesla’s activities in India. Both these developments have come suddenly after years of regulatory impasse for Musk’s companies. A suit at this juncture, therefore, is likely designed to either make the Indian government willingly loosen its attempts at regulating content on major social media platforms or force it to do so through a legal victory.
How the Indian government responds to this suit will give a clearer indication of how much it is willing to accommodate American interests in this domain. While it appears that publicly the government has stated that X must follow the law of the land and that it may take criminal action against “provocative” queries to Grok, it is instructive that news stories began circulating almost as soon as the lawsuit story broke. This highlighted the fact that the government has not issued any notice regarding Grok and that it is “in discussions” with X about its AI, which might very well be a way to informally discuss the lawsuit itself. One should not be too surprised therefore if that is the end outcome of this lawsuit, and the larger question of India’s digital realm is determined not in the courts but in ministerial chambers.
The writer is Managing Partner, Evam Law & Policy.
