With the Digital India Bill in the works to replace the decades-old IT Act, 2000, Delhi-based think tank Broadband India Forum (BIF) on Thursday said the Centre should not have powers under the new law to block access to online content.
BIF, which represents companies like Google, Meta, Amazon and Microsoft said an independent and neutral body (such as an ombudsman) should be set up to adjudicate on blocking requests to ensure greater transparency in blocking processes. Alternatively, it suggested involving courts within the blocking framework to introduce an element of friction and prevent blocking orders from being issued as a convenient option by the government.
Section 69A of the IT Act allows the government to direct intermediaries to block or take down online content in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence. In fact, the government is not legally bound to first send a notice to the content creator concerned about the reasons for blocking the content.
“Censorship of online content through blocking orders issued to intermediaries directly implicates the fundamental right of the content creator, to freely express their opinion, and the fundamental right of the public, to freely receive information,” BIF said in a joint report with xKDR Forum, a non-profit research organisation.
“Apart from this, the efficacy of blocking can also be questioned. Blocking directions can be over-broad, thereby covering lawful or legitimate content within their scope (particularly if an entire website or app is blocked)…in this context, we suggest certain revisions to the IT Act,” the report said.
Trend suggests that there has been a rise in frequency of the government using orders to block or take down content. According to the report, while the government required Twitter to delete/take down 248 tweets in 2017, just three years later in 2020, this number increased to nearly 10,000 tweets.
Parliamentary questions reveal that 78 YouTube news channels and 560 YouTube URLs were blocked in 2021 and 2022. Additionally, 2,021 mobile apps were blocked in 2022.
“In any event, the explosion of content on the Internet requires improved state capacity to make correct, time-sensitive decisions regarding blocking online content. Currently, however, the legal framework lacks any clear accountability standards that allow us to assess whether the procedural safeguards have proved effective,” the report said, adding that there appears to be a lack of due process in the censorship processes under the IT Act.
In July 2022, Twitter also challenged various blocking orders issued by the government in the Karnataka High Court.
“With over 850 million online users, India boasts of being the world’s largest digitally connected democracy. So, the need for a robust law provision to safeguard the evolving online landscape becomes a priority. We await the well-articulated evolvable digital law to replace the two-decade-old IT Act,” said TV Ramachandran, president of BIF.
Among other key recommendations, BIF and xKDR Forum suggest providing affected individuals the right to be heard with regard to blocking of their content, independent judicial oversight with regard to the government order, publishing of all blocking orders, specific reasons for blocking of content, and laying down provisions for unblocking of content.