When The Bird Stops Chirping

  • Samaksh Sood
  • 11:35 AM, 12 Feb 2021

On January 31 2021, an interim order (Order) was passed by the Ministry of Electronics and Information Technology (MEITY) putting forth a mandate to Twitter, of blocking 257 URLs and 1 Hashtag (#ModiPlanningFarmerGenocide) for allegedly misreporting facts related to the Farmers tractor rally violence on India’s 72nd Republic Day and creating public unrest and disorder. In an unprecedented move, the social media giant defied the Order which it did initially comply with.  This led to a standoff between the social media giant and the Centre. Subsequently, Twitter was issued another notice on February 3, 2021 (Notice) reiterating that Twitter was bound to comply with the Order in terms of the existing Indian legal framework. In this article, the author analyses contents of the Notice, the legal provisions pursuant to which the Notice was issued by the MEITY, and a catena of judicial precedents relied upon by the Centre.

Factual background

The Order was passed under Section 69A of the Information Technology Act, 2000 (Act) and Rule 9(1) of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (Blocking Rules). The Order was issued on the ground that the concerned URLs and Hashtag were spreading misinformation about the ongoing farmer's protests and could potentially jeopardise the public order situation in India.

The government stated that the storming of the Red Fort in New Delhi on January 26 2021, had already impacted India’s public order and the concerned URLs and Hashtag could trigger further untoward incidents. MEITY contended in the Notice that Twitter delayed complying with the Order till the eleventh hour, thereby enabling proliferation of the allegedly dangerous information that emanated from the concerned URLs and Hashtag for a prolonged period.

On February 1, 2021, a meeting of a committee appointed under the  Blocking Rules, (in the presence of Twitter’s advocate) heard the issue and confirmed the Order. The Notice states that despite this, Twitter unblocked the URLs and Hashtag and proceeded to explain its reasons for doing the same through a reply dated 1 February 2021 (Reply). The Notice debases Twitter’s contentions in the Reply, relying on the statutory framework of the Act and judicial precedents.

MEITY’s reliance on the framework of the Act

Section 69A of the Act read with Rule 9 of the Blocking Rules gives wide powers to the Designated Officer under the Blocking Rules to call upon an intermediary, through an interim order, to block any information in an emergency situation, in the interest of inter alia public order or preventing incitement to the commission of any cognizable offence. The Act and the Blocking Rules do not define what constitutes an emergency or the nature of the information that could jeopardise protected interests. These determinations are left to the discretion of the Designated Officer.

The recipient of such an interim order is mandatorily required to take down the objectionable information. Subsequent to this, the recipient of the interim order has the opportunity to appear before the committee appointed under the Blocking Rules and make representations against the interim order. The committee then proceeds to either confirm or revoke the interim order. If the Committee decides to revoke it, the interim order ceases to be operational and the objectionable information may then be legally unblocked by the concerned intermediary. As per Section 69A(3) of the Act, any intermediary which does not comply with an interim order is liable for imprisonment up to 7 years and a fine.

Relying on the stipulated provisions, the MEITY responded to the Reply by reminding Twitter that it was bound to comply with the Order in terms of which the entity was duty-bound to block the specified URLs and Hashtag. The MEITY assertively stated that Twitter, being an intermediary under the terms of the Act was not empowered to question any interim order passed under the aegis of the Act and could not cite its opinion that the exercise of powers under the relevant provisions raised “significant issues relating to freedom of speech” as an excuse to sidestep the Order. Twitter was also reminded that the powers under the Act were sufficiently broad to preclude Twitter from relying upon any issues relating to the disproportionality or impracticality of the Order.

Effectively, through the Notice, the MEITY conveyed to Twitter that compliance with the Order was sine qua non for carrying out operations in India and that Twitter’s understanding of the freedom of speech in India was irrelevant to the issue; the only determination that was of any consequence being the Designated Officer’s discretion to act upon a potential threat to integrity, sovereignty defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence. The MEITY recorded that the Reply is Twitter’s admission of its non-compliance with the Order, the persistence of which will invite penal consequences under the Act.     

MEITY’s reliance on judicial precedents

It appears from the Notice that the primary objections taken by Twitter are that – (a) tweets, stock phrases, and exaggerated/crude emotional appeals cannot be characterised as threats to public order and (b) even if they could be so characterised, the MEITY could have only ordered the blocking of individual tweets and not entire handles. Judicial precedents have been relied on in the Notice to refute these contentions.

On public order, the jurisprudence cited by the MEITY is to the effect of broadening the scope of the term. For instance, reliance has been placed on the SC’s decision in State of U.P. v. Hari Shankar Tewari to assert that for determining whether an act disturbs public order, no watertight classifications or rigid tests can be laid down. This is supplemented by relying on the SC’s decision in Bhupendra v. State of Maharashtra where it was held that the question of whether an act leads to disturbance of the current life of the community so as to affect public order is one of fact, which is primarily measured in the potentiality of the act to jeopardise public order in the prevailing circumstances. Reference is then made to Shafid Ahmad v. D.M., to state that in times of high tension (such as the farmer’s protest), aggressively questioning the role and competence of law enforcement and government authorities has the potential to jeopardise public order.

Effectively, the Notice states that public order is a term of wide connote, the endangering of which is a question of fact, not contingent on the nature of the act itself, but the potential of the act to disturb public tranquillity. In the context of the Notice, the MEITY seeks to convey that unfettered expressions of opinions through the concerned URLs and Hashtag have the potential of inciting the recreation of situations where cognizable crimes, such as those committed on  January 26 2021, are repeated. 

With respect to Twitter’s contention that at best, the MEITY could only have ordered the blocking of individual tweets, reliance has been placed on SC decisions that uphold the imposition of curfews under Section 144 of the Code of Criminal Procedure, 1908. The rationale espoused through these decisions is that often, law enforcement agencies cannot distinguish between elements of society whose conduct needs to be controlled and those elements whose conduct is clear. Hence, in the larger interest, as a temporary measure, it is prudent to curtail the broader exercise of rights in order to prevent those exercises that can impact public order negatively. This rationale has been used by the MEITY to argue that it is prudent and legally tenable to block entire handles as it will be difficult to identify which tweets from the handle threaten public order, and also it will leave a situation where such tweets can be made from the concerned handles after the deletion of any particular tweet.   

It appears that through the Notice, the MEITY has strongly asserted its power to regulate intermediaries. It has structured its position to reiterate that vis-à-vis intermediaries in terms of the Act, it has the sole statutory authority to determine whether any content hosted by an intermediary threatens public order, and if it so does, then the concerned intermediary is mandated by law to block said content. On its part, Twitter has proclaimed that it remains committed to free speech. However, given the imminent pressure, it has taken action against nearly 500 Twitter accounts at the instance of the government.

A press statement (Statement) issued by the MEITY regarding a meeting between the MEITY and Twitter dated February 10 2021 seems to indicate that the MEITY has severely admonished Twitter for its non-compliance with the Order. Reminding Twitter that the government is committed to respecting the exercise of the freedom of speech within reasonable restrictions, the MEITY called upon Twitter to respect Indian laws while it enjoys the benefits of operating in the large market provided by India. The Statement notes that Twitter affirmed its commitment towards Indian laws, expressing a desire to continue efforts towards building its service in India. It remains to be seen whether Twitter or the Government will pursue this matter in courts. Will the bird stop chirping? Time will tell.  

[The author is a graduate of Gujarat National Law University. He has previously worked as a dispute resolution attorney at a leading law firm in the country]