Questions over free speech: Govt’s sovereign power to legislate is sacrosanct, but social media firms have every right to challenge the law

The new rules, notified in 2021, introduced a clause that loss of intermediary status or failure to comply with government’s directions make intermediaries liable to face criminal proceedings, and executives can even face imprisonment of up to seven years.

Questions over free speech: Govt’s sovereign power to legislate is sacrosanct, but social media firms have every right to challenge the law
While Twitter or any other entity just can’t challenge the government’s sovereign powers to legislate, one has every right to differ with the law.

Twitter India’s decision to petition the Karnataka High Court against the Centre’s order to block tweets and even handles, under Section 69 of the Information Technology Act 2000 will hopefully answer quite a few vexed questions. The point on which Twitter and a few other social media platforms, which are categorised as intermediaries, differ with the government is that no notice is given before directions are passed regarding takedown of tweets or any content or blocking of accounts. This matter can only be decided by the court as the Information Technology law clearly empowers the government to make rules and regulations from time to time.

As the IT law was passed by Parliament with this provision way back in 2000, the framing of subsequent rules are in the nature of secondary legislation and do not require approval of Parliament again. Matters came to a head in May 2021 when the government framed a fresh set of rules, requiring intermediaries to appoint a set of regulatory officials for compliance of the laws and coordination with the government.

Further, it has put in place a system to look into users’ grievance. While there is nothing wrong with these provisions, the problem begins when failure to implement the provisions of these laws or any direction with regard to takedown of content could lead to the loss of intermediary status that confers legal protection, as such platforms host third-party content. The new rules, notified in 2021, introduced a clause that loss of intermediary status or failure to comply with government’s directions make intermediaries liable to face criminal proceedings, and executives can even face imprisonment of up to seven years.

This provision was not there earlier and is seen as draconian, something like the Foreign Exchange Regulation Act of yesteryears. Critics see such rules as the government’s way of muzzling criticism on social media platforms as intermediaries can be asked to remove any content which is critical of the government. Another proposal to make the central government (instead of, ideally, an independent judicial or a regulatory body) the arbiter of permissible speech on the internet is also quite unfair.

While Twitter or any other entity just can’t challenge the government’s sovereign powers to legislate, one has every right to differ with the law. The courts are the appropriate forum to decide whether the rules framed by the government are in consonance with the IT Act as well as the constitutional provisions. Prior to Twitter, WhatsApp and Google have already moved the courts on certain aspects of the rule. While WhatsApp has challenged the provision that requires it to disclose the originator of any message seen as mischievous by the government, as it amounts to breaking its encryption that provides privacy to users, Google has contended that it cannot be categorised as a social media intermediary as it is just an aggregator.

Several public interest litigations have also been filed in various high courts against the rules; these have been clubbed and are before the Supreme Court. The petitions of WhatsApp, Google, and Twitter should also be clubbed and, ideally, the SC should expeditiously decide whether the IT Rules made in 2021 are constitutionally sound or not. That’s the right way to go, instead of painting these legal challenges as defiance of the government of India by Silicon Valley platforms.

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