Twitter’s legal challenge to the center’s takedown orders highlights free speech issues

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As the Ministry of Electronics and IT (MEITY) conducts a week-long celebration to mark the eighth anniversary of the Digital India program, Twitter has filed a written petition against it with the Karnataka High Court. Far from souring a moment of national pride, it represents a Faustian bargain of digitization that promises financial and social benefits if we give up our civil and political rights.

This is evident from the Prime Minister’s inaugural address in which he launched several online platforms for global adoption and to facilitate the electronic delivery of government services. The language text available in Hindi contains several achievements and data points that would raise hope for the use of technology – India has the largest share of digital transactions worldwide, is building successful online platforms for vaccinations and is even bridging the digital divide. There is some truth to the Prime Minister’s statements. For example, broadband connectivity in India has increased tenfold over the past decade to 600 million broadband subscribers.

But it begs the question: is mere connectivity enough to fulfill the constitution’s democratic promises?

The Karnataka HC may soon get an opportunity to answer this question when responding to Twitter’s legal challenge to instructions to block tweets and even handles issued by MEITY under Section 69A of the Information Technology Act 2000. As I wrote earlier, Twitter is a foreign platform in Silicon Valley that trades data to sustain its business. Additionally, there are issues with their own transparency mechanisms around content moderation decisions. However, it has been urged to go to court to protect the integrity of its platform rather than in arrogant disregard for India’s laws. According to parliamentary data, the number of such orders increased from 471 in 2014 to 9,849 in 2020, an increase of 1991 percent (Unstarred Question 1788).

Beyond mere numbers, official secrecy stands in the way of a comprehensive qualitative assessment of such orders. The need for disclosure flows directly from a joint reading of the Shreya Singhal and Anuradha Bhasin judgments. The first concerned the constitutionality of Section 66A, under which the Supreme Court, while upholding the government’s blocking powers, argued that the written remedies would always be available to an injured person. Therefore, in order to submit a brief to a high court, the petitioner would need the availability of the legal system. This need for transparency before restricting internet access (of any scope or type) was specifically mandated when the Supreme Court examined the scope of the telecommunications disruption in Jammu and Kashmir.

Certain government press releases or unidentifiable statements by ministry officials to the media allow us only a glimpse behind the scenes. Through a voluntary mechanism, Twitter sporadically uploads the specific web addresses contained in blocking orders to the Lumen database, a project that contains legal complaints and content takedown requests. This is a transparency practice not followed by any other social media company operating in India.

Recent disclosures in the last week of June revealed Twitter withheld a number of accounts and tweets in India. Many of these belonged to politicians, journalists, activists and even a global think tank like Freedom House. We saw similar situations in February and April 2021, when reported takedown orders were issued for content about farmers’ protests and criticism of the union government’s response to the second wave of Covid-19, respectively. However, from a civil rights perspective, the need to rely on a voluntary mechanism is a concern. It is also not sustainable as it can eventually be threatened.

Another persistent vulnerability was the failure to provide prior notification of why and a way to the actual users whose web content is blocked. Take the case of Tanul Thakur, a journalist who, in his spare time, created a satirical website to parody the social evil of dowry. His website was blocked without notice to him and the blocking order itself was never issued. Even after he appealed to the Delhi High Court, MEITY only provided him and his lawyers with the order. Another case is when Sushant Singh, an actor, author and presenter, was blocked without being served an order. He had to go to the Bombay High Court for redress. In all of these cases – there can be many more – a blocking order is not only issued confidentially, but also secretly.

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This court challenge is not unique, and there are regulatory proposals to increase government control over the Internet. In a recently completed public consultation to amend the 2021 Information Technology Rules (Guidelines for Intermediaries and Code of Ethics for Digital Media), rather than addressing the shortcomings highlighted by cross-sectoral analyses, UN special rapporteurs and supreme courts, violations of freedom of expression and the Privacy is enhanced. A draft of the amendments proposes the appointment of a Grevance Appellate Committee (GAC) as a government body that would hear appeals against social media platforms’ decisions to remove or not remove content. The draft amendments state that the GAC will be a government-appointed body, but do not say whether that body will give content creators a hearing right or even publish their orders.

There are several other concerns with the GAC. First, the committee formed by the executive branch will make the central government (ideally, rather than an independent judicial or regulatory body) the arbiter of permissible online speech. It would encourage social media platforms to quash any speech that might not be palatable to the government, officials or those who can exert political pressure. Second, it will empower the government to censor speech on grounds not listed in Section 69A of the IT Act 2000 or Article 19(2) of the Constitution. Therefore, the government can even circumvent the need to issue blocking orders and opt for crowd-sourced censorship instead.

While Twitter’s fall can be framed as a Silicon Valley platform’s resistance to the Indian government, the legal issue is centered on freedom of expression and the future of Digital India.

The author is Executive Director of the Internet Freedom Foundation

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