Dec 13, 2023

Key takeaways from an Indian state court’s scrutiny of government orders for blocking online content

  1. The extent of Government orders to block user content and accounts from public access recently came to the forefront before the Indian High Court of Karnataka. X Corp. (erstwhile Twitter Inc.) had challenged certain orders issued by the Government which directed Twitter to block the public access to certain user accounts and tweets.
  2. This article examines three issues that the High Court has ruled on, namely, whether the Government
  • can block user accounts rather than specified content posted on the social media platform,
  • can exercise its power encompass the pre-emptive direction to block future content, and
  • is mandatorily required to notify the originator of the offending content.

Indian law on orders to block the public access to online content

  1. Section 69-A of the [Indian] Information Technology Act empowers the Government to direct intermediaries to block online content in accordance with the procedure prescribed in the 2009 rules on blocking for access of information by public (“Blocking Rules”). It specifies that ‘any information generated, transmitted, received, stored or hosted in any computer resource’ can be blocked. The Government before passing such a direction, has to be satisfied that it is necessary to do so in the interest of sovereignty and integrity of India, defence, and security, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence.

Key takeaways and concerns

  1. The High Court interpreted Section 69A to hold that the Government can not only block information/ content specific but also user accounts in their entirety.
  2. Twitter had argued that blocking of user accounts constitutes an absolute embargo not only against the existing content but also future content. It was argued that the use of past tense in Section 69A made it clear that the Government could block content that had already been originated and was not yet to be originated. Therefore, the Government is not empowered to block user accounts as it would amount to preventing the originator of the offending content from posting any future content.
  3. The High Court observed that ‘the rules of grammar cannot jettison the rules of law’ and that interpreting the use of the word ‘information’ to mean only specific content and not user account would render the provision otiose. It observed that a content specific block may encourage the originator to adopt a ‘better luck next time’ approach. To prevent the above, Section 69A must be interpreted to include the power to block user accounts, in addition to specified content. The High Court also held that the power conferred under Section 69-A is preventive, apart from being penal and curative since the Government can pre-emptively pass a direction to block user account. On this basis, the High Court held that power under Section 69A also includes the power to block user accounts.
  4. Having said so, the judgment passed against Twitter does not discuss the exact absurdity that prevents the words of Section 69A from being construed according to the tense used in the provision. It remains to be seen whether the appellate bench agrees with the High Court that the absurdity of the originator’s potential ‘better luck next time’ approach aptly justifies the High Court’s approach to not apply literal interpretation.
  5. Notably, the Supreme Court, in Indore Development Authority v. Shailendra (dead) & Ors., has discouraged the practice to give extended meaning to expression and effectively reframe provisions. Accordingly, the High Court’s interpretation of Section 69A will also have to pass muster in this regard.
  6. The judgement also does not verbalise the clear factors that would tilt the Government’s decision to blocking of user account rather than specific content. The High Court does indicate that it was satisfied in this regard with the fact that the Government appeared to have resorted to the direction of blocking the user accounts after examining that the originator had a pattern of repeatedly posting offending content which could potentially threat national security and public order. Having said this, the threshold at which the Government can exercise its power to block the entire user account (rather than content) is not clear from the judgement. For example, how long does the pattern of repeating offending content has to subsist which would lead the Government to decide to block the user account rather than content. At present, the power seems to be interpreted to prevent an act rather than content.
  7. The judgement also does not address the consequence of blocking user account. This is particularly relevant so far as the lawful / non-offending content that originated on account of the activities of the blocked user account is concerned. While the judgement observes that separating the ‘innocuous’ ones from the offending content is not practical, it does not discuss whether it is legally justified that the lawful content created (either by the blocked user) or third-parties due to the activities / posts contained in the user account may get removed on account of the Government’s exercise of power to block such account.
  8. The High Court also rejected the argument that blocking of user accounts would amount to preventing the originator from posting future content. In this regard, the High Court reasoned that blocking user account would amount to taking a preventive measure which the Government is entitled to exercise. While state authorities/ regulators have in the past been held to be conferred with pre-emptive powers, it is unclear whether it is justifiable that under Section 69A, such pre-emptive power be used to issue a direction that is user-specific rather than general in nature.
  9. The High Court’s decision to encompass blocking of user accounts would mean that it is primarily based on the assumption that the originator of the subject offending content would continue to create only unlawful content. Notably, the High Court did acknowledge that as Twitter contended, that future non offending content would get blocked as a result of blocking of the user account. However, the High Court appears to have accepted this to be a consequence of the legislature’s intent to confer the Government with the power to block online content. On this note, it is also not clear whether an user whose account is to be blocked should also be prevented from opening a fresh account on the subject social media platform.
  10. That brings us to the aspect of originator’s rights when it comes to blocking its account or content. The Blocking Rules entail a requirement on the ‘Designated Officer’ appointed by the Government to issue the blocking order (a) to make reasonable efforts to identify the originator or the intermediary, and (b) notify the originator only when the originator can be identified or the intermediary, as the case may be. Adopting a literal interpretation of Rule 8 of the Blocking Rules which specifies that the “person or intermediary” be issued a notice, the High Court held that it is not mandatory for the Government to notify the originator of the offending content so long as the intermediary has been notified.
  11. The judgement does not discuss whether reasonable efforts were made to identify the originator and if so, the extent of it. This becomes particularly relevant as the Supreme Court in Shreya Singhal v. Union of India had held that it is not merely the intermediary who is to be notified and heard and that the “person” i.e. the originator must be heard too if identified. The High Court refers to Shreya Singhal but opined that the disjunctive ‘or’ used in Rule 8, provides the option to the Government to identify either the user or the intermediary. In our view, this may not be the right approach so far the user is concerned, particularly because more than often, the users are not likely to be notified as identifying the intermediary will be easier.

Other key takeaways from the High Court’s judgment are as follows:

  • Content, including user accounts can be blocked indefinitely or for a specific period.
  • Courts should give deference to the executive’s decision on issues of sovereignty, security of the country, particularly when such decision has been taken after following the due process of law.
  • It is not mandatory for the blocking order to contain reasons so long as the intermediary has been informed of the reasons underlying the blocking direction at the hearing before the Review Committee constituted under the Indian Telegraph Rules, 1951. In our view, this runs contrary to the Supreme Court’s ruling in Shreya Singhal that reasons have to be recorded in writing in the blocking order so that they can be assailed in a writ petition under Article 226 of the Constitution.





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