Twitter’s legal challenge to Centre’s takedown orders flags issues of free speech

As the Ministry of Electronics and IT (MEITY) conducts a week-long celebration to mark eight years of the Digital India programme, Twitter has filed a writ petition in the Karnataka High Court against it. Far from souring a moment of national pride, it is representative of a Faustian bargain of digitisation that promises financial and social benefits when we give up our civil and political rights.

This becomes clear from the inauguration speech of the prime minister, where he launched several online platforms for global adoption and to facilitate the electronic delivery of governance services. The speech text available in Hindi contains several accomplishments and data points that would instil hope in the use of technology — India having the largest share of digital transactions in the world, building successful online platforms for vaccination, even bridging the digital divide. There is some truth to the prime minister’s statements. For instance, over the last decade there has been a ten-fold increase in broadband connectivity to 600 million broadband subscribers in India.

But it begs the question: Is mere connectivity enough to fulfil the democratic promises of the Constitution?

short article insert The Karnataka HC may soon get an opportunity to answer this question when it responds to Twitter’s legal challenge to the directions to block tweets and even handles issued by MEITY under Section 69A of the Information Technology Act, 2000. As I have written before, Twitter is a foreign, Silicon Valley platform that trades in data to sustain its commercial operations. Further, there are issues with its own transparency mechanisms in content moderation decisions. However, it has been prompted to go to court to protect the integrity of its platform rather than in arrogant defiance against the laws of India. As per parliamentary data, the number of such orders has risen from 471 in 2014 to 9,849 in 2020 representing a 1991 per cent increase (Unstarred Question 1788).

Beyond mere numbers, a comprehensive qualitative assessment of such orders is prevented by official secrecy. The need for disclosure emerges 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 blocking powers of the government, reasoned that the writ remedies would always be available to an aggrieved person. Hence, to approach a high court in a writ, the petitioner would require the availability of the legal order. This need for transparency prior to placing any restriction on internet access (of any scope or nature) has been expressly directed when the Supreme Court examined the scope of the telecommunications shutdown in Jammu and Kashmir.

We are only allowed a slight peek behind the curtain by certain press releases of the government or unattributed statements to the media from ministry officials. Through a voluntary mechanism, Twitter sporadically uploads the specific web addresses included in blocking orders to the Lumen Database, a project that houses legal complaints and requests for the removal of content. This is a transparency practice not followed by any other social media company operating in India.

The most recent disclosures in the last week of June revealed that Twitter withheld a number of accounts and tweets in India. Many of these belonged to politicians, journalists, activists and even a global think tank such as Freedom House. We have witnessed similar situations in February and April 2021, when takedown orders were reportedly issued for content about the farmers’ protests and criticism of the Union government’s response to the second wave of Covid-19, respectively. From a citizens’ rights perspective, however, the need to rely on a voluntary mechanism is a cause for concern. It is also unsustainable as it may eventually come under threat.

Another persisting infirmity has been the failure to provide a prior show-cause notice and opportunity to the actual users whose web content is blocked. Take the case of Tanul Thakur, a journalist who in his free time made a satire website to parody the social evil of dowry. His website was blocked without any notice provided to him and the blocking order itself was never provided. Even after approaching the Delhi High Court, MEITY only provided the order to him and his lawyers. Another instance is when Sushant Singh, an actor, author and presenter, was blocked without any order being served on him. He had to approach the Bombay High Court for redress. In all these instances — there may be many more — a blocking order is not only confidential but also made in secret.

This court challenge is not isolated and there are regulatory proposals to increase government control over the internet. In a recently concluded public consultation to amend the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, rather than cure deficiencies pointed out by cross-sectoral analysis, UN special rapporteurs and high courts, injuries to free expression and privacy are being reinforced. A draft of the amendments propose the appointment of a Grievance Appellate Committee (GAC) as a government body that would hear appeals against the decisions of social media platforms to remove or not remove content. The draft amendments state that the GAC will be a government-appointed body but do not state whether this body will grant a right of hearing to content creators or even publish its orders.

There are several other concerns with the GAC. Firstly, the executive-constituted committee will make the central government (instead of, ideally, an independent judicial or a regulatory body) the arbiter of permissible speech on the internet. It would incentivise social media platforms to suppress any speech that may not be palatable to the government, public officials, or those who can exert political pressure. Secondly, it will empower the government to censor speech on grounds not stated under Section 69A of the IT Act, 2000 or Article 19(2) of the Constitution. Hence, the government may even bypass the need to issue blocking orders, and instead, decide to crowdsource censorship.

While Twitter’s case may be painted as a Silicon Valley platform’s defiance of the Government of India, at the core of the legal issue is the freedom of speech and the future of Digital India.

This article was first published on the Indian Express on  July 7, 2022 08:31 IST