February 8, 2021 5:58:40 pm
On February 1, India woke up to find that 257 Twitter handles and tweets had been temporarily blocked by the platform pursuant to legal demands by the Union government. The handles included those of the Kisan Ekta Morcha, The Caravan magazine and even that of the CEO of Prasar Bharati. As netizens took to various social media platforms to voice their anger about what they called illegal censorship, it soon came to light that these handles had tweeted an objectionable hashtag. The same evening Twitter executives met with officials of the IT ministry to convey their views on what the platform felt was a disproportionate measure, and that the tweets were newsworthy and constituted free speech. Post the meeting, the platform unblocked the handles despite not receiving any indications from the government to that effect.
In a strongly worded 18-page notice sent to Twitter the next day, the government emphasised that “impracticability or the disproportionality of the said measure cannot be decided by Twitter which is an intermediary bound by the orders of the central government”. The notice further went on to add that the hashtag was found to be instigating people to commit cognisable offence and thus fell afoul of Section 69A of the Information Technology (IT) Act. Since the blocking committee had upheld the ban on the uniform resource locator (URL)/hashtag, the interim order continued to be in place. Twitter’s action of removing the block, which was made under the mandate of law and the order passed by the competent authority, was illegal and could attract penal action as per the provisions of the act. Non-compliance with orders passed under Section 69A is punishable by seven years’ imprisonment as well as with monetary fines. As the situation evolves and we await the response of the intermediary to the notice, the government has served another notice to Twitter to take down 1,178 handles.
It is pertinent to understand the issues surrounding this contentious matter. The government is completely within its rights to prosecute Twitter for non-compliance. Rules notified in October 2009 under section 69A of the IT Act are used often in government-mandated Internet takedowns. These rules allow the government to block public access to information from a computer “in the interest of sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above”. These are the same caveats that are attached to freedom of speech enshrined in the Constitution as fundamental rights under Article 19 (2). We also have to understand that the process that is set down for the blocking of an URL is a non-partisan process, involving officials from multiple departments, and there is a clear process of review which ensures that no decision can be taken in an arbitrary fashion. This was also upheld in the Supreme Court judgement in March 2015 (Shreya Singhal vs Union of India) when Section 66A of the IT Act was struck down. Twitter did not have a legal basis for upturning the ban unilaterally and, by doing so, the platform has opened itself to legal action.
On the other hand, it is also crucial to understand that blocking of handles should be the last resort. The issue of proportionality and impartiality will have to be the guiding lights for government intervention. Clearly, in the current case, the authorities did not look at the context in which the hashtag was shared but went for a blanket ban instead and this still raises a question on proportionality. In contentious cases, the government needs to assure the general public of the non-arbitrary nature and fairness of decision- making. Many individuals and civil right groups bemoan the fact that the process of blocking URLs is cloaked in secrecy as the proceedings are exempt from the RTI Act. While this is justified by the government under national security, there are many instances where the blocking of certain individuals raises doubts. The well-laid-down process of blocking content and the checks and balances also need to be widely circulated among masses so that false flags are not raised always to accuse the government. Both these steps will go a long way towards generating confidence in the process.
The issue also begs the question: Why had the government been sitting on the draft intermediary guidelines that it had circulated over two years ago? The draft guidelines clearly state that a platform would have to remove any objectionable content that threatens public order within 72 hours of receiving the request from the concerned authorities. Given the increasing use of social media to stir unrest, the apparent lethargy of the government in notifying the guidelines or even a revised IT Act seems strange.
The world is changing in the blink of an eye and social media will continue to play a central role in public protests. There might be similar incidents in the future when the government will have to act towards shutting down access to certain URLs under the law of the land. But that process has to always remain transparent, proportional and impartial.
The writer is a member of the editorial board of the cyber journal of Chatham House
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