Analysis of IT ACT,2000 (Recent Twitter issue)

Introduction

• On February 1, 2021, in the wake of the intensification of the farmers’ protests and reports of violent incidents on January 26 – a number of Twitter accounts became inaccessible in India.
• Government of India had invoked Section 69A of the Information Technology Act, and ordered Twitter to block access to these accounts.
• The reason, it appeared, was the use of the hashtag #ModiPlanningFarmerGenocide, which was deemed a threat to public order.

Censorship-happy governments.

• Soon after, Twitter restored access to many of the withheld accounts.
• This prompted a sharp reaction from the government, including a non-compliance notice and veiled threats that Twitter’s employees would be prosecuted for violating Section 69A.
• A meeting between Twitter officials and the government appears to have yielded for now an uneasy truce.
• These events of the last few days throw into sharp relief the unsatisfactory state of Indian law and how it is interpreted and applied by censorship-happy governments.
• At present, the online free speech rights of Indian citizens depend entirely upon the extent to which multinational social-media platforms are able to stand up to the government’s censorship requests, how willing they are to risk legal prosecution, and how much confidence they have that their interpretation of Indian free speech law will stand up in court, even over the claims of the government.
• It should be clear that this is not a sustainable situation.

The root lies in the IT Act

• The root of the problem is Section 69A of the IT Act.
  • Section 69A grants to the government the power to issue directions to intermediaries for blocking access to any information that it considers prejudicial to, among other things, the sovereignty and integrity of India, national security, or public order.
  • Section 69A(3) envisages a jail sentence for up to seven years for intermediaries who fail to comply.
• In 2009, the government also issued “Blocking Rules”, which set up the procedure for blocking and also stated that all requests and complaints would remain strictly confidential.

Violation of rights

• There are a number of problems with this legal structure.
• The first is that it makes censorship an easy and almost completely costless option, for the government.
  • Rather than having to go to court and prove a violation even prima facie of law, the government can simply direct intermediaries to block content, and place the burden of going to court upon the users.
  • It stands to reason that the easier it is to censor speech, the more likely it is that a government will resort to that option.
• Second, the confidentiality requirement means that the user will not even know why their account has been blocked and, therefore, will be in no position to challenge it.
• Third, there are no procedural safeguards — no opportunity for a hearing to affected parties, and no need for reasoned orders.
• This, then, violates both free speech rights, as well as the right to due process.

Shreya Singhal case

• In the famous Shreya Singhal case that is well known for the striking down of Section 66A of the IT Act, the scope of Section 69A and the Blocking Rules were also litigated before the Supreme Court.
• The Court only noted that every affected individual would retain the constitutional right to challenge a blocking order, through a writ petition before the High Court.

Need for transparency

• The Shreya Singhal judgment made it mandatory for the government to furnish blocking orders along with reasons to affected parties.
• The Supreme Court’s judgment in the Kashmir Internet Ban case, it is, at least now, an arguable position of law that any order restricting access to the Internet, or information on the Internet, must be made public.
• Consequently, a combination of bad law and unclear jurisprudence has created a situation where Twitter or the intermediary is the only entity that is in a position to defend the free speech rights of Indian citizens.

Way forward

• There is an urgent need for both legal and jurisprudential reform.
• To prohibit the government from being able to directly order intermediaries to block access to online information, except in narrowly-defined emergency cases, and to require it to go through court to do so, with an adequate opportunity for affected parties to defend themselves.
• To make the  blocking orders public.
  • Affected parties be given the opportunity of a fair hearing before a blocking order is issued.