E-Paper
Govt misusing IT laws, X corp tells Karnataka high court
X told the high court that several nodal officers empowered to issue take down notices were “misusing” the takedown regime under Section 79(3)(b) of the IT Act
X Corp on Friday told the Karnataka high court that while it was not opposed to regulation, all restrictions on digital speech must strictly conform to existing law. Objecting to the Union government’s directive mandating social media platforms to join the Sahyog Portal -- a centralised system for content takedown requests, the platform argued that the portal enables arbitrary censorship by executive authorities, in violation of constitutional safeguards and Supreme Court precedents.
Senior advocate KG Raghavan, who appeared for X Corp, told a bench of Justice M Nagaprasanna that presently, the central administrative authorities or the several nodal officers empowered by the Sahyog Portal to issue take down notices to social media intermediaries, were “misusing” the takedown regime under Section 79(3)(b) of the Information Technology (IT) Act that outlines conditions under which intermediaries can lose their safe harbour protection.
These officers, Raghavan argued, were performing “judicial functions,” leading to “arbitrary and opaque censorship” of online content. Citing the Supreme Court’s judgment in Shreya Singhal vs Union of India, Raghavan said Section 69A of the IT Act, which permits content takedowns, was upheld by the Apex Court because it provides procedural safeguards, including a defined structure and the involvement of a nodal officer. However, Section 79(3)(b) of the IT Act and Rule 3(1)(d) of the IT Rules that Sahyog portal relies upon for issuing take down orders, lack such safeguards.
Raghavan also argued that Rule 3(1)(d) gives the government a “backdoor mechanism to control online content,” avoiding the Shreya Singhal mandated process under Section 69A.Rule 3(1)(d) undermines the constitutional safeguards that the Supreme Court laid down by shifting the burden of censorship to social media platforms and enabling takedown orders by countless officers of the state issued merely on their respective discretion.
“Today, virtually any officer, from the Delhi Metro to any department, can interpret any law in the country and decide that a social media post is unlawful. This is a judicial function being carried out by executive authorities,” Raghavan argued. “A thousand administrative officers are now empowered to interpret law, apply facts, and order takedowns. This is constitutionally impermissible,” he said.
When the court asked if acts or online content deemed “unlawful” under the law were not “already enumerated,” and whether officers were merely “determining if a post violated these laws,” Raghavan insisted that such determinations must not be made by executive officials without a structured procedure or review mechanism as prescribed under Section 69A.
Section 69A of the IT Act provides for blocking or taking down online content only through a legal process with safeguards such as prior notices, an explanation or reasoning for why such content must be taken down, a hearing, and review etc.,
X Corp has argued that Rule 3(1)(d) of the IT Rules, however, requires intermediaries to take down a wide range of content without any such procedural protections, based on vague criteria and even user complaints. The company has maintained that Rule 3(1)(d) effectively bypasses 69A and violates the Supreme Court’s ruling, while also making the intermediaries vulnerable to losing their safe harbour protection to under the Act. The safe harbour protection under Section 79 of the IT Act shields online platforms from liability for user generated content, as long as they act as neutral intermediaries and comply with takedown orders.
Raghavan further said that empowering executive officials to issue take down notices without any procedural safeguards will have a “chilling effect” on free speech. “A comment saying the Delhi Metro is not running on time can be taken down because the metro authorities might feel that it sends the wrong signal,” Raghavan said.
“We are a responsible platform with user agreements and moderation mechanisms. We are not against regulation, but regulation must be in accordance with law,” he said.
Raghavan also argued that the Sahyog Portal had no statutory backing since it was created through “a mere letter, with no notification or executive order.” “The architecture of Indian law making requires statutory support for such mechanisms,” Raghavan said.
Justice Nagaprasanna asked whether the portal was simply for implementation purposes, to which Raghavan said that irrespective of what the Portal intended to do, it could not have been constituted through administrative communication alone.
The court will now hear the union government’s arguments through Solicitor general Tushar Mehta, on July 17.
