Context: X Corp (formerly Twitter Inc.) has filed a petition in the Karnataka High Court, challenging the Indian government’s content takedown process under the IT Act 2000.
The company has argued that the government is unlawfully using Section 79(3)(b) of the IT Act, 2000 along with the Sahyog Portal to create a censorship mechanism that bypasses legal safeguards.
Relevance of the Topic:Prelims: Section 79(3)(b) of the IT Act; Sahyog Portal.
Grounds of Dispute:
(i) Misuse of Section 79(3)(b) of the IT Act
- X Corp contends that the government is misinterpreting Section 79(3)(b) to issue takedown orders that do not follow the required legal procedures.
- As per the Shreya Singhal vs Union of India (2015) ruling by the Supreme Court, Section 69A is the only valid legal mechanism for content blocking. Section 69A includes safeguards, such as:
- Requirement to record reasons in writing.
- A pre-decisional hearing to allow affected parties to present their case.
- Judicial review to challenge blocking orders.
- Section 79(3)(b), however, lacks these procedural safeguards, making its use for blocking unlawful.
- The petition states that: “In Shreya Singhal, the Supreme Court upheld Section 69A as an information blocking power only because it is ‘a narrowly drawn provision with several safeguards’... These safeguards and requirements do not exist in Section 79(3)(b), unlike Section 69A.”
Section 79(3)(b) of the IT Act:
- Section 79 of the Information Technology (IT) Act, 2000 provides a "safe harbor" provision for intermediaries like social media platforms, search engines, and internet service providers. This means that these intermediaries cannot be held legally liable for third-party content posted on their platforms, provided they comply with certain conditions.
- However, in practice, Section 79(3)(b) erects a blocking process separate from Section 69A with a much lower threshold for issuing takedown notices, and grants power to a much larger swathe of ministries, departments, and law enforcement agencies.
Clause 3(b) of Section 79:
- Clause 3(b) of Section 79 states that intermediaries lose their immunity from liability, if they fail to remove or disable access to content that has been flagged as illegal or unlawful, after receiving actual knowledge from the government or a court order.
- The key phrase here is "expeditiously remove or disable access to material used to commit an unlawful act, upon receiving actual knowledge from the government or a court order."
- The government is interpreting this clause as giving it the authority to issue content takedown orders, even though the IT Act has a separate provision (Section 69A) specifically meant for blocking online content.
- However, X Corp argues that Section 79(3)(b) does not grant direct censorship powers to the government, unlike Section 69A, which has specific legal safeguards.
(ii) Problems with Sahyog Portal:
- The Sahyog Portal, managed by the Ministry of Home Affairs (MHA), allows state police and government departments to directly issue takedown requests.
- However, X Corp argues that:
- The portal creates a parallel censorship system that circumvents Section 69A’s safeguards.
- Thousands of government officials can issue takedown requests without transparency or oversight. This violates due process and enables arbitrary censorship.
- The government has been pressuring social media platforms to integrate with Sahyog, particularly for reporting Child Sexual Abuse Material (CSAM) to local authorities.
- X Corp has challenged the government’s demand to appoint a Nodal Officer for Sahyog compliance, arguing that the mandate lacks legal validity.
About ‘Sahyog’ Portal:
- It is an online portal developed to automate the process of sending notices to intermediaries by the Appropriate Government or its agency under IT Act, 2000, to facilitate the removal or disabling of access to any information, data or communication link being used to commit an unlawful act.
- It will bring together all Authorised Agencies of the country and all the intermediaries on one platform for ensuring immediate action against the unlawful online information. This portal will help achieve a clean cyber space for the Citizens of India.
What is X Corp Seeking?
X Corp’s petition seeks judicial intervention to-
- Declare that Section 79(3)(b) does not authorise content blocking: The section is intended as a liability exemption for intermediaries, not a tool for government censorship.
- Invalidate all takedown orders issued under Section 79(3)(b): These orders lack the procedural safeguards mandated by Section 69A and the Shreya Singhal ruling.
- Restrict enforcement of Sahyog Portal orders: Until the court reaches a final decision, orders issued through Sahyog should not be enforced.
- Reaffirm Section 69A as the sole legal framework for content blocking: Ensuring that government actions comply with established judicial precedents.
Implications of misuse of Section 79(3)(b)
- Violation of Fundamental Rights: The government’s actions infringe on Article 14 (Right to Equality) and Article 19(1)(a) (Freedom of Speech & Expression).
- Expansion of executive power: The use of Sahyog Portal and Section 79(3)(b) suggests an attempt to expand government control over digital platforms.
- Global implications: This case sets a precedent for international social media platforms operating in India. It shall raise questions about legal consistency, platform liability, and free speech protections in the digital era.
This case will have major implications for digital governance, intermediary liability, and free speech in India. If X Corp wins, it could limit the government’s ability to bypass Section 69A safeguards, and if the government prevails, it might strengthen regulatory oversight over social media leading to greater censorship concerns.