BACKGROUND  On February 1, 2021, in the wake of the intensification in the farmers protest and  reports of violent incidents on January 26, a number of Twitter accounts became inaccessible in India. It was unclear whether this was Twitter’s decision, based on its belief that the accounts had violated its Terms of Service or whether Twitter had been ordered to do so by the government, or by a court.

Later the Government of India clarified that it had invoked Section 69A of the Information Technology Act, and ordered Twitter to block access to these accounts against use of the outraging  hashtag, which was deemed a threat to public order.

ISSUE BETWEEN GOVERNMENT OF INDIA AND TWITTER

• With the government invoking Section 69 A of the Information Technology Act, Twitter blocked a few accounts. However, shortly it restored access to many of the withheld accounts.
• This prompted a sharp reaction from the government, including a non-compliance notice and threats that Twitter’s employees would be prosecuted for violating Section 69A.
• In response, Twitter pointed out that the government’s own actions directing it to withhold access to the accounts of journalists, activists, and politicians, violated Indian law, and the constitutional guarantee of the freedom of speech.

 INFORMATION TECHNOLOGY ACT

• The Section 69A of the IT Act grants to the government the power to issue directions to intermediaries for blocking access to any information that it considers prejudicial, and inflammable content on the internet.
• The Section 69A (3) of the IT Act envisages a jail sentence for up to seven years for intermediaries who fail to comply.
• In 2009, the government issued “Blocking Rules”, which set up the procedure for blocking and also stated that all requests and complaints would remain strictly confidential.

ROOTS OF THE PROBLEM LIES IN THE IT ACT

• The root of the problem is Section 69A of the IT Act. There are a number of problems with this legal structure.
• It makes censorship an easy and almost completely costless option, for the government. The government can simply direct intermediaries to block content, and place the burden of going to court upon the users.
• The easier it is to censor speech, the more likely it is that any government will resort to that option.
• Further, the Confidentiality requirement means that the user will not even know why their account has been blocked and, therefore, will be in no position to challenge it.
• There are no procedural safeguards i.e.  no opportunity for a hearing to affected parties, and no need for reasoned orders.
• This violates both free speech rights, as well as the right to due process.

SUPREME COURT STANCE

• In the Shreya Singhal case (in which the Supreme Court  struck down Section 66A of the IT Act that made posting “offensive” comments online a crime punishable by jail), the scope of Section 69A and the Blocking Rules were litigated before the Supreme Court. 
• The Court noted that every affected individual would retain the constitutional right to challenge a blocking order, through a writ petition before the High Court.
• Also it made it mandatory for the government to furnish blocking orders along with reasons to affected parties as it is evidently impossible to challenge something that you cannot even see.

WAY FORWARD

• There is an urgent need for both legal and jurisprudential reform on censorship.
• Legally, the best case scenario would be to prohibit the government from being able to directly order intermediaries to block access to online information, except in narrowly defined emergency cases, and to require it to go through court to do so, with an adequate opportunity for affected parties to defend themselves.
• The blocking orders should be made public for fair hearing of the case.
• This process will ensure that the blocking order is a reasoned one, and can be effectively challenged before a court, if need be.
• Also intermediaries (public platforms) are required to deploy such technologies based on automated tools and appropriate mechanisms for the purpose of identifying or removing or disabling access to information which hampers public tranquility .

Reference:

1. https://www.thehindu.com/opinion/lead/fuzzy-law-unclear-jurisprudence-trampled-rights/article33836573.ece