Note that Prasad is not wrong to say that Twitter acted in defiance of rule 4 (8), but one wonders why his own ministry does not provide these procedural guarantees when it disables access to information.
Par Yashaswini Basu et Krishnesh Bapat
In recent weeks, the Union government and Twitter have been at odds over the implementation of new IT rules, governing social media platforms, which became operational in May 2021. The latest in this deadlock was the temporary deactivation of access to the testimony of Ravi Shankar Prasad, Minister of Electronics and Information Technology, on June 25. It was for violation of the Digital Millennium Copyright Act of the United States. Apparently, Prasad released a copyrighted song without permission from the publishers. The Minister complained that Twitter’s action was in flagrant violation of Rule 4 (8) of the 2021 IT Rules which require major social media intermediaries such as Twitter to notify a user before disabling access to his account, as well as a reasonable opportunity to challenge such a decision.
Note that Prasad is not wrong to say that Twitter acted in defiance of rule 4 (8), but one wonders why his own ministry does not provide these procedural guarantees when it disables access to information.
Social media platforms are town halls in today’s digital age, a way for people to freely express their opinions, interact with others and receive information. Any speech restrictions on these platforms violate the fundamental rights guaranteed by Article 19 (1) of the Indian Constitution. These restrictions are usually imposed either by the government, which orders platforms to regulate content in accordance with applicable laws, or by the platforms themselves by restricting content according to their community guidelines / terms of service.
While the IT Rules of 2021 govern the procedure that major social media intermediaries must follow before disabling access to content, the government has the power to restrict internet speech by issuing orders under the section 69A of the Information Technology Act 2000 without giving the authors any opportunity. be heard.
The safeguards to which the government restricts access to content are provided in a separate set of IT rules from 2009, dealing with blocking access to information. Unlike the 2021 rules, the 2009 rules require the government to “make all reasonable efforts” to identify the person or intermediary hosting the information that needs to be disabled, without sufficient procedural safeguards. Once a person or intermediary is identified, the 2009 Rules require MeitY to give them the opportunity to justify the allegedly illegal content. The emergency provision of the Regulations, however, allows the Ministry to issue content blocking orders without giving the person / intermediary the opportunity to be heard.
The problem is threefold. First, the MeitY must simply make “reasonable efforts” to identify the person or intermediary. Such ambiguity allows MeitY to censor content even without notifying its author. More importantly, the 2009 Rules allow MeitY to identify the person or the intermediary. Thus, if MeitY were to censor the content posted on Twitter by Prasad, they could choose not to provide a notice or hearing opportunity to Prasad and directly ask the representatives of Twitter to appear before them!
Second, while the 2021 rules require social media platforms to provide their users with grounds to disable access to their accounts, the 2009 rules do not impose such obligations on the government. In fact, Rule 16 of the 2009 Rules allows the government not to even reveal the complaint / request on the basis of which it is disabling the content! And third, in emergency situations, the government can censor content even without making any effort to identify the person or the intermediary. Again, this rule does not define the nature of the emergency and suffers from a vagueness that allows for arbitrary use.
Rule 4 (8) of the 2021 Rules, cited by Prasad, indicates that MeitY is aware of the importance of giving the opportunity to be heard to a person whose speech is proposed to be restricted as well as of maintaining transparency. in such a restriction order. Through this Rule, they sought to provide legal recognition to the Santa Clara Principles, albeit in a diluted form.
Disappointingly, this is clearly lacking in the 2009 rules, where rule 8 only requires MeitY to issue blocking instructions to the intermediary and not to the user whose content is blocked. The Union government must surely have a greater obligation than social media platforms to provide a right to be heard guaranteed by Article 21. Likewise, it also has a greater obligation to protect freedom of speech and expression of Indians guaranteed by Article 19 (1) of the Constitution of India. It naturally follows that they must also impose similar obligations on themselves.
It should be mentioned that the Supreme Court reviewed the 2009 rules in Shreya Singhal (2015) and concluded that they were not constitutionally invalid, on the grounds that if the author of the information is identified, he must “ also be heard before a blocking order. has passed”. Thus, the Court’s interpretation of the 2009 Rules requires MeitY to give a user the opportunity to be heard if he is identified.
But, anyone can guess how many of these people MeitY actually hears before they censor their internet speech. In February 2021, there were reports of around 250 users from various backgrounds being blocked from Twitter without any prior notification or even post facto notice. Clearly, there is a dissonance between legal precedents and the realities of platform governance on the ground.
The concern here is not the constitutional invalidity of the 2009 rules, but the contrast between the guarantees the government must follow and what the government expects from social media platforms. In the interest of protecting the constitutional rights of internet users, it is recommended that the government impose greater transparency obligations on itself, which will not only foster greater public confidence in law enforcement and our institutions, but also constitutes a right of citizens.
Basu is a member of Privacy and Right to Information, and Bapat is a Center for Communication Governance, Digital Law Fellow, Internet Freedom Foundation
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