Elon Musk-owned X has accused the government of creating an unlawful censorship mechanism. However, in the IT Act, Section 79 — whose use the microblogging platform has questioned — is quite different from 69(A) on which the court had ruled earlier, explains Ritwik Sharma
Why has X sued Indian govt?
Earlier this month, a lawsuit filed by X in the Karnataka High Court (HC) complained that the government misused Section 79(3)(b) of the IT Act, 2000, to order the removal of content. The company has argued that the Centre’s “misuse” of the provision bypassed safeguards allowed by Section 69A of the Act which are meant for content moderation. It has also alleged that the IT ministry was asking other departments to use Sahyog Portal, a website launched by the home ministry last year, to issue orders to block content. According to X, the portal created “an impermissible parallel mechanism” that led to “unrestrained censorship of information in India” by officials. This mechanism, it added, bypassed the legal safeguards on content removal and due process under Section 69(A).
The new legal challenge comes at a time the government has sought responses from X’s India representatives on controversial replies generated by its artificial intelligence chatbot, Grok. The government could assess whether these were violations and take action against both the platform and users, according to media reports.
What has X sought from the court?
X has sought judicial intervention citing violation of constitutional rights by the government in its use of Section 79(3)(b). The company wants the court to declare that this Section doesn’t allow the government to order blocking of content, prevent the enforcement of such orders from the government website until a final verdict, and reinstate Section 69(A) as the only mechanism for blocking online content.
In 2022, the company (then known as Twitter) had challenged content removal orders issued under Section 69A, alleging lack of transparency and censorship. It had clashed with the Centre over non-compliance of takedown orders for tweets linked to the farmers’ movement that were critical of the government. The company later complied but its challenge is pending in courts.
What does Section 69(A) of IT Act allow?
The IT Act has a mix of approaches to data and their removal, points out Pavan Duggal, Supreme Court (SC) advocate and cyber law expert. Section 69(A) gives power to the Centre to direct blocking of content on grounds — provided by Article 19(2) of the Constitution — of sovereignty, security, and integrity of India, ties with other nations, public order, morality, and preventing cognisable offence. The power to block content was provided following an amendment to the Act in 2008. “While the original content will still be available in India, you won’t be able to see the blocked content unless you bypass existing protocols by using virtual private networks,” he says.
In 2015, the SC in the Shreya Singhal case had upheld 69(A) while it declared Section 66A of the Act as unconstitutional, allowing the government unrestrained powers to restrict the freedom of speech.
How is Section 79 different?
The power under this Section is different from 69(A). Section 79 is a “safe harbour” provision that deals with the statutory exemption of intermediaries (such as X) from legal liabilities over data posted by a third party (user). “Unlike the US which gives a virtually blanket immunity to service providers for third-party data, India’s IT Act has taken a more nuanced view,” Duggal says. “The power for blocking under Section 69(A) is only for access within India. Under Section 79, it’s a completely different power, where intermediaries are asked to remove or disable content,” says Duggal. Section 79 states that an intermediary won’t be liable for third-party data made available by it if it complies with rules and regulations, does due diligence, does not conspire in committing any offence, and — under 79(3)(b) — expeditiously removes or disables access to unwanted content if called upon to do so. In October 2023, the IT ministry directed all ministries, state governments, and the police that orders to block information could be issued under Section 79(3)(b).
Indian law and ground realities
The powers of blocking and disabling or removing content has no specific parallel and evolved to suit our cultural context, says Duggal. For instance, the fundamental right of freedom of speech and expression, enshrined in the Constitution, includes reasonable restrictions mentioned earlier. “It doesn’t give you the licence to defame somebody or prejudicially impact the reputation, goodwill or standing of a person.” He adds that with the spread of Internet and social media, “today there is not much self-control of restraint by individuals who are transformed into global authors and broadcasters of data, so these powers were brought in so that the social milieu is not impacted”. Sections 69(A) and 79 represent separate zones of exercising power, while Section 81 says that the IT Act would have overriding effect. The Karnataka HC could interpret afresh the interplay of these Sections of the IT Act vis-à-vis Articles 19(1) and 19(2) of the Constitution, says Duggal. The next hearing is on Friday.