Twitter case underlines web moderation issues

Twitter’s lawsuit against the Centre on blocking orders is likely to have a far-reaching impact on surveillance in India, IT rules, and how free speech remains online

In a rare development, social media company Twitter has challenged various central government orders directing the take-down of politically sensitive content on its platform before the Karnataka High Court. It has argued that the blocking orders substantively violated the constitutional guarantee of freedom of speech and expression; procedurally violated provisions of Section 69A of the Information Technology (IT) Act and the Blocking Rules by not providing a hearing to content creators and authors of tweets; and require prior judicial review.

Twitter’s recent challenge seems to be predicated on receiving blocking orders for tweets or accounts belonging to activists, journalists, and political parties. (Reuters)

Twitter’s decision to go to court is important for many reasons. For one, it is uniquely positioned to challenge government blocking orders. Blocking orders are secret by design — even for authors whose tweets are being withheld or account owners whose accounts are being disabled. This is because of the government’s interpretation of Rule 16 of the Blocking Rules, which sees it regularly reject Right to Information (RTI) requests filed by owners or content creators, seeking a copy of the blocking order directing the take-down of their tweets. These creators are left with no choice but to go through an arduous legal process to first try and secure a copy of the blocking order and then challenge it. This is a time consuming and expensive process, especially for individual litigants, and has mostly proved unsuccessful or ineffective.

Unlike authors or content creators, social media companies such as Twitter are often the only entities that have access to blocking orders issued by the government (although they are prohibited from publicly disclosing the content of the orders due to statutory confidentiality requirements). Such vast access allows them to make sense of the type of content that is regularly flagged by the government to be withheld, and understand the pattern of the government’s decision-making process over the long-term. Thus, Twitter’s challenge in the Karnataka HC is an important step in protecting the freedom of speech and expression of its users in India and in promoting transparency around executive action.

Twitter’s request for judicial review is also important given that across our statutory framework – whether in directing surveillance, ordering an internet shutdown, or flagging content to be taken down – there is no independent inter-branch oversight. Under the Blocking Rules, an inter-ministerial committee, composed exclusively of government officials, takes the final call on what content has to be withheld or taken down. The recently amended Information Technology Rules 2021, which regulate digital news media, also suffer from an exclusive government oversight mechanism, which has been challenged before multiple HCs for facilitating government control of the media and encouraging censorship.

The absence of any accountability in the form of judicial scrutiny endangers the rule of law and skews the separation of power between the executive and the judiciary. Judicial oversight offers the best guarantee of independence, impartiality, and proper procedure, and will be vital in curbing any misuse of the government’s blocking powers. The Karnataka HC’s ruling on the need for judicial oversight will have a significant impact on the ongoing legal challenges to India’s surveillance regime and the IT Rules, 2021, and in protecting our free speech online.

Many people have framed Twitter’s decision to approach the Karnataka HC as an illustration of a multinational company’s brazen attitude and refusal to comply with local laws. However, it bears mentioning that the ability to challenge a government action before a court is the hallmark of a democracy bound by the rule of law. Until the HC decides its petition or passes an interim order, Twitter is bound to follow all government blocking orders, while still retaining its right to challenge them.

There is no doubt that social media companies often function with a lack of accountability and transparency themselves and privacy concerns (especially around data collection and use) against non-State actors are important. Platform regulation is thus necessary, while being rights-respecting. However, the relationship between a user and a social media platform is controlled by consent and choice, even if illusory. In contrast, the State enjoys greater control over its citizens’ lives and has a monopoly over power and violence, whether in its decision to exercise police powers, prosecute individuals, or block content.

When the government directs the take-down of Twitter content or disabling certain Twitter handles that it deems unpalatable or illegal – such as for posting tweets relating to the 2021 farmers’ protest or the Covid-19 pandemic, or from certain political handles – it effectively serves as a censor of the web.

Twitter’s recent challenge seems to be predicated on receiving blocking orders for tweets or accounts belonging to activists, journalists, and political parties. The challenge before the Karnataka HC thus presents a rare opportunity for the judiciary to review and curb the arbitrary exercise of powers exercised by the government under Section 69A of the IT Act. Its decision will impact the freedom and free flow of information online. And, that is why we should care.

Vrinda Bhandari is a lawyer practising in Delhi

The views expressed are personal