For many days, concerns were being raised regarding the censorship tactics being employed by the current ruling Bharatiya Janata Party government, especially in regards to suppressing information related to the ongoing farmers’ protest (can be read here, here and here). These apprehensions have now been confirmed by the social media giant X Corp, who released a statement admitting to following the executive orders issued by the union government and temporarily blocking ‘X’ (formerly Twitter) accounts of certain people. The said statement, issued in the early hours of February 22, provided that while the platform has complied with the orders, they “disagree with these actions and maintain that freedom of expression should extend to these posts.” Notably, the social media platform has been accused of bowing to autocratic powers in recent times, especially after its takeover by billionaire Elon Musk.
The said statement comes on days after the Ministry of Electronics and Information Technology (MeitY), at the behest of the Ministry of Home Affairs (MHA) issued emergency order directing top social media companies like Facebook, Instagram, Reddit, X and Snapchat to block 177 accounts and links related to the farmers’ protest in order to maintain ‘public order’. Notably, these blocking orders were issued on February 14 and 19 and demand that specified accounts be suspended for the duration of the protest and be restored after the same is over. The statement released on the X account of Global Government Affairs touches upon the issues of the issuance of these executive orders, the writ petition against the powers of the union and the lack of transparency, which has been provided and discussed below.
Issuance of executive orders of blocking by the union government:
The statement released by the social media platform stated that “The Indian government has issued executive orders requiring X to act on specific accounts and posts, subject to potential penalties including significant fines and imprisonment. In compliance with the orders, we will withhold these accounts and posts in India alone; however, we disagree with these actions and maintain that freedom of expression should extend to these posts.”
Section 69A of the Information Act, 2000 (IT Act) empowers the union government to issue take down orders or blocking orders in India. The said legal provision states that the Union government can issue blocking orders to platforms in the interests of the sovereignty and integrity of India, defence of the country, security of the state, friendly relations with foreign states, public order, and so on. These powers are being increasingly used by the Modi-led government to clamp down on any critical voices against his government and policies.
The writ petition by X Corp against these blocking orders:
In the statement released by X, it is further stated that “Consistent with our position, a writ appeal challenging the Indian government’s blocking orders remains pending. We have also provided the impacted users with notice of these actions in accordance with our policies.”
This sheds light on the ongoing legal proceedings taking place in the Karnataka High Court against the blocking orders being issued by the Union government by invoking Section 69A of the IT Act in complete darkness. On July 1, 2022, X Corp filed a writ petition in the Karnataka High Court after having complied with blocking orders issued by the Union government “under protest”. Through the petition, X had contested the blocking of 39 URLs out of a total of 1,474 accounts and 175 tweets. According to the platform, the directive to block all accounts violated Section 69A and that the banning orders “demonstrate an excessive use of powers and are disproportionate” and are “procedurally and substantially deficient of the provision”. The platform had further argued that the Central government lacked the authority to issue general orders requesting the disabling of social media accounts and that such orders must include justifications that should be made known to users. Moreover, it also specified that only when the nature of the content complied with the requirements set forth in Section 69A of the IT Act could a blocking order be issued.
On June 30, a single judge bench of the Karnataka High Court had dismissed the said petition brought in by X Corp (then Twitter Inc.) by holding the company’s argument to be “devoid of merits.” Interestingly, the bench of Justice Krishna S Dixit had also imposed the company with a 50 lakh rupee fee to be paid to the Karnataka State Legal Services Authority within 45 days of the judgement.
In October of 2023, the appeal preferred by X Corp against the dismissal of its plea by a single judge bench was accepted by the division bench of Justice G Narendar and Justice Vijaykumar A Patil after MeitY had informed the court that the government will not be reconsidering the blocking orders. As the appeal was accepted, the bench indicated that it would consider the issue of whether reasons of the blocking orders passed by the Ministry are to be communicated to the platform, users of the accounts. It remarked that recording reasons is mandatory.
Notably, during the January 30, 2024 hearing of the case, X Corp had argued against the Union Government review committee’s non-disclosure of its orders upholding the blocking of several posts on the platform. A Division Bench consisting of Acting Chief Justice Dinesh Kumar and Justice Shivashankare Gowda was hearing the said case. The counsel for X Corp, Sajjan Poovayya, had informed the court that with several of the blocking orders having been upheld by a review committee, the appellants were yet to be provided with a copy of the orders as they were deemed to be “secret”. It was further submitted by the counsel that as contesting such the emergency blocking orders is not easy, which is even the case in issuance of regular blocking orders, around 1,500 pieces of content were removed with a one line order. With regard to the same, the counsel questioned how the orders could be kept secret when the relevant statute stated that reasons had to be recorded. The social media giant had also raised concerns that the Review Committee had never actually met as required under Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (IT Rules). Based upon these arguments, an Interlocutory Application (IA) had been moved by the appellants to gain access to the orders issued by the review committee upholding the blocking orders of the government, by deeming the same to be crucial to their case in contesting these government orders.
Ironically, on February 21, the union government had argued against the IA moved by the social media platform to gain access to the review committee reports by stating that they had no right to access to the same since X Corp is merely an intermediary and not the author or creator of the blocked content.
As per the government, a review of the decisions to block internet content under Section 69A of the Information Technology Act serves as a safeguard against arbitrary usage of power and only the creators of the accounts or tweets can invoke this safeguard. The government further contended that review under Rule 14 of the IT Rules is an internal and independent safeguard mechanism and there exists no requirement to hear any party before passing the review orders.
“A party aggrieved by the blocking orders has the option of seeking judicial review, and has no right to insist on access to the proceedings of the Review Committee. The appellant (X Corp), being an intermediary, certainly has no locus standi to seek access to the proceedings of the Review Committee,” the counsel for the union stated as per Bar and Bench.
Lastly, during the said hearing, the government also highlighted that in the writ petition, X Corp had only challenged the blocking of 39 URLs, while through the IA it is now questioning 1,096 blocking directions. The government had also challenged this move, terming it an attempt to widen the scope of X Corp’s challenge.
The next hearing in the X Corp’s writ appeal is slated to be held by the High Court’s division bench in March 2024.
Non-publishing of the executive orders by X Corp
The statement further specifies the legal restrictions prohibiting them from publishing these executive orders and stated “Due to legal restrictions, we are unable to publish the executive orders, but we believe that making them public is essential for transparency. This lack of disclosure can lead to a lack of accountability and arbitrary decision-making.”
It is pertinent to highlight here that since 2023, pursuant to the takeover of the social media platform by Musk, X had stopped sharing takedown notices issued by the Indian government with Lumen Database, a website that collects and analyses legal complaints and requests for removal of online material. The same had been specified by Lumen Database who had said “As of April 15, 2023, Twitter has not submitted copies of any of the takedown notices it receives to Lumen. According to Lumen’s persons of contact there, Twitter’s 3rd party data sharing policies are under review, and they will update Lumen once there is more information.”
The complete statement uploaded on Global Government Affairs can be read here:
The Indian government has issued executive orders requiring X to act on specific accounts and posts, subject to potential penalties including significant fines and imprisonment.
In compliance with the orders, we will withhold these accounts and posts in India alone; however,…
— Global Government Affairs (@GlobalAffairs) February 21, 2024
It is also essential to point out here that while the said statement has been made public by X Corp, no list with specific names against whom actions based on the executive orders have been taken is provided.
Legal provisions required compliance by X Corp to government orders
Releasing the statement while distancing itself from the oppressive censorship tactics being followed by the government marked X’s first confrontation with the Indian government since Musk took ownership of the micro-blogging platform. The existing legal structure of India is such that the social media giant can face serious consequences in case it does not comply with the orders being issued by the government in taking action, including suspension, withholding and taking down of accounts, against certain accounts or content.
The infamous section 69A of the IT Act provides that “The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.” In simple words, if any intermediary, in this case X Corp, refuses to comply with the orders of the government, they may have to bear monetary fines as well as be subjected to a significant jail term. It is in this regard that in April 2023, Musk had deemed the social media laws in India to be ‘quite strict’ and that the company could not go beyond the laws of the country. Being compliant with India’s laws is better than having employees go to jail, Musk had stated as per the Economic Times.
Prior to Musk, Dorsey, who quit as Twitter CEO in 2021, had in an interview claimed that during his tenure as CEO, Twitter received requests from the Indian government to block accounts covering the 2020-2021 farmers’ protests and those critical of the government. Dorsey had also alleged that the Indian government had threatened the social networking platform with raids if it did not take down critical content during the farmers’ protests against the three farm laws.
“It manifested in ways such as: ‘We will shut Twitter down in India’, which is a very large market for us; ‘We will raid the homes of your employees’, which they did; and this is India, a democratic country,” Dorsey had said. It is important to highlight here that in the year 2021, Delhi Police’s special cell had ‘visited’ the Delhi and Gurgaon offices of Twitter, as was then known as, to serve notice to India’s managing director about an investigation into the social media giant’s tagging of a post by a ruling party spokesman, namely Sambit Patra, as “manipulated media”. While the aforementioned investigation had been used as a guise, the ‘visit’ had been a result of the current dispensation in 2021 asking Twitter to block certain provocative hashtags and the then Twitter initially gave in to the demand but it rolling back its decision citing ‘insufficient justification’.
In addition to this, the union government could also revoke X’s safe harbour that is granted to the platform under Section 79 of the IT Act. The said status protects intermediaries from being held responsible for “any third-party information, data, or communication link made available or hosted” on its platform.
Pressure building on social media platform to bow before the Modi government
The current regime has applied increasing pressure on social media platforms to control the information as well as the criticism that circulates on social media. With mainstream media already under control, and the independent media facing cases and suspension of licences, the right to speech and expression as well as the right to information, both guaranteed by Article 19(1)(a) of the Indian Constitution, are threatened. By employing these repressive and oppressive steps, the Modi-led government is following the path of other autocratic countries, such as Russia, that is trying to control how and where messages can spread on social media. One should not forget that in March of 2021, the Russian government had provided that it would slow access to Twitter and in turn control one of the few places where Russians openly criticise the government.
Recently, privacy advocate Apar Gupta had taken to X to write on this issue. He had stated:
“Blocking orders for Twitter accounts of farm leaders have been issued in advance. This form of pre-censorship is without any transparency or natural justice.”
Twitter under new ownership will no longer disclose the URLs to the Lumen Database taking away any transparency. It also lost the Karnataka High Court case which employed theocratic (as opposed to constitutional) reasoning. I wrote on this separately, but that’s an aside.
The government on its part will not disclose or submit to accountability. Why block entire accounts in advance? Is the account itself illegal? It will not bother asking these questions for fewer people will ask them today than two years ago. As its march towards total power becomes menacing it commands greater levels of social compliance. Either by discipline, despondency or indoctrination. This is not surprising, what does provide anguish is the vile commentary against farmers on social media. How easy it is to forget that close to 750 protestors who lost their lives? Have we as a society lost all civility in disagreement?”
His post can be read here:
Twitter was a reliable and timely medium for farmers during their protests in 2020-21.
They issued official press releases, documented police excesses, built community and sympathy for their cause with hashtags. It became a vital informational pipeline for farmers to convey…
— Apar (@apar1984) February 13, 2024
To know about the farmers’ Protest, read here.
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