Read Time: 20 minutes

The Delhi High Court, yesterday, while hearing a batch of petitions challenging suspension of Twitter and Instagram accounts of a number of users, dismissed a petition against Instagram, on the ground that the user's account had been restored and that the petition against Instagram was infructuous. 

The user filing the plea against Instagram is the political satirical account called "Wokeflix".

Wokeflix contended that the petition against Instagram was not infructuous as their account had been deleted after being restored. To allay Wokeflix's concerns Yashwant Verma J., the single judge seized of the matter, directed that the petitioners would not be precluded from assailing the permanent deletion of their Instagram account. 

The court also heard arguments by famous microblogging platform, Twitter Inc., which was represented by Mr. Sajan Poovayya and Mr. Abhishek Manu Singhvi, Senior Adv., both of whom argued against maintainability of the writ petition against Twitter Inc. 

Mr. Poovayya, began his submissions by emphasising the fact that Twitter did not have a statutory obligation to provide its services to any user and was a "voluntary service, present across most mature jurisdictions". 

 "What do you mean by voluntary service?", inquired Hon'ble Mr. Yashwant Verma J. 

Mr. Poovayya replied by stating that Twitter's services were not mandated by any law and that it was an incorporated entity which was voluntarily providing services for its own commercial gains.

The petition filed by the petitioners averred that Twitter Inc., would be amenable to writ jurisdiction of the court as it was discharging a public function and would qualify as "State" under Article 12. Mr. Poovayya argued that the present writ petition against Twitter Inc., was entirely misplaced, as Twitter Inc., could not by any stretch be held to be "State" under Article 12, as it did not satisfy the test laid down in the Supreme Court's landmark judgement of  Ajay Hasia v. Khalid Mujib. 

He further argued that while a writ of mandamus may lie against the regulator or the executive for enforcing compliance with a statute, it could not lie against a private entity to enforce its compliance. He pointed to the statutory exemption provided to social media intermediaries under Section 79 of the Information Technology Act, 2000 and the rules framed thereunder, to the effect that an intermediary is not held liable for any third party data, content, information, etc. hosted on its platform, provided it follows certain conditions mentioned in the Act and rules. 

"Let us assume", he argued, "that an intermediary X is bound to follow certain rules and it is pig headed, in as much as, it doesn't follow the rules or breaches them. Two consequences follow - 1) The statutory safe harbour maybe revoked and the state could treat that content as being authored by the intermediary, in which case the state would initiate action against the intermediary or 2) a private person could sue the intermediary. But in neither case would the intermediary be amenable to writ jurisdiction" 

"So, the writ petition should have been filed against Union of India to ensure compliance of the rules?", asked Hon'ble Mr. Yashwant Verma J., to which Mr. Poovayya replied in the affirmative. 

Twitter’s counsel also enunciated his arguments by comparing Twitter's services with that of a newspaper such as Times of India or Bennet Coleman refusing to publish an advertisement and how in such a case, one couldn't argue that such a newspaper would be amenable to writ jurisdiction. 

"The dispute is this. I am a citizen of this country and I am tweeting on your (Twitter's) platform. You (Twitter) have deplatformed me....This is a new term that has been formulated - "de-platformed" but taking the term forward...  you have deplatformed me and because you have deplatformed me, I approach the court for a writ?.... Let us take an example closer to home. What if Times of India refuses to publish my advertisement, even though I am paying the same money as any one else. It is a public service, i.e., it is a news service. Would your lordships issue a writ against Bennet Coleman or Times of India to direct them to publish my ad?"

He also referred to a petition filed against the Ministry of Electronics and Information Technology to enforce compliance of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and to ensure that all social media intermediaries appoint grievance redressal officers, as mandated under the Rules. 

"I will take an example against myself. there was writ petition filed in 2021 for the appointment of resident and grievance officers. The writ petition was issued against the Union to either comply with the law or shut shop.The writ petition was not filed against Twitter. It was filed against the Union"

Thus, Mr. Poovayya argued that a private entity, such as Twitter Inc., is not amenable to writ jurisdiction for the purposes of enforcing its compliance with a statutory obligation. 

Senior Advocate Dr. Abhishek Manu Singhvi, who also appeared for Twitter Inc. in a connected matter, pointed to the conduct of the Petitioner and argued that the Petitioner formed multiple accounts to evade the ban imposed upon it by Twitter, which is why its handle was permanently deplatformed 

"Milords why did this case arise? A petitioner against whom disciplinary action was taken (in the sense there was some infraction by her) as she changed her identity and re continued doing what she wasn't supposed to do"

He further pointed to instances when a private entity would be amenable to writ jurisdiction and argued that Twitter did not fall under any of the said instances. 

"When does writ jurisdiction lie? If Twitter were supplying a Public function, if there were a correlative positive right, if it was in discharge of a sovereign function, if the giver (service provider) is subject to a statutory obligation of law. Twitter does not fall under any of the said instances"

He argued that Twitter was not providing a public function at all and that simply because it servicing a large number of users, it could not be said to be a public function. 

"Twitter also does not discharge sovereign function. While it would be a very nice compliment to Twitter, but I dont think Twitter wants those left handed compliments...There is a psychological confusion. Simply because of the large numbers, public function is presumed. But that's not the case.", argued Singhvi, while relying on the case of G. Bassi Reddy vs International Crops Research Institute and Anr. and Ramakrishna Mission vs Kago Kunya.

He further cited the judgement of  Federal Bank Ltd vs Sagar Thomas & Ors to show that a private entity does not become amenable to writ jurisdiction by merely being heavily regulated by statute. “Banks are the most heavily regulated entities in this country. Even if a bank sneezes, it is regulated by statute… However, would a private bank being regulated by the Banking Regulation Act be amenable to writ? The court has held that merely because a private entity has to comply with statutory provisions, would not mean it is amenable to writ jurisdiction…. The only exception being where the contract itself is regulated by statute”

Dr. Singhvi also argued that an important facet to be considered by the courts is whether the petitioner has exhausted alternate remedies and whether he would be left remediless but for the writ. He emphasised how if the court were to interfere with every infraction by Twitter or any other social media platform, it would invite a state of lawlessness and mayhem, where every private kerfuffle between a user and the social media platform would be a matter of writ jurisdiction before the court.

Dr. Singhvi also submitted that even in cases of government authorities, private transactions between the government body and state are not matters of amenable to writ jurisdiction. He further argued that in the present case, not only was Twitter a private entity, the dispute was also subject to contract between the petitioner and Twitter, which could not be subject to the court’s jurisdiction under Art. 226.

Mr. Yashwant Verma J., asked Dr. Singhvi if a writ petition would lie against the decision of a grievance officer of Twitter.

Dr. Singhvi answered that a writ may lie against the decision of a grievance officer where the validity of the decision was in question or if the officer was improperly appointed. He also said that a writ may lie where the user is aggrieved from the decision of the appellate body established under the IT Rules, 2021, as such a body has a government flavour. However, where the grievance officer was properly appointed and had rendered a decision, which aggrieved the user, a writ would not lie.

While Mr. Poovayya sought time to make further submissions on maintainability, Senior Advocate Mr. Kapil Sibal, appearing for Meta Inc., argued that the petition against Instagram was rendered infructuous, as it had already restored the account of the Petitioner. The Petitioner, on the other hand, argued that its account had been deleted after being restored. Mr. Sibal while opening Instagram on his phone, pointed out that Wokeflix was, in fact, successfully operating its Instagram handle. 

The court was pleased to dismiss the petition against Instagram altogether, while not precluding the Petitioner to assail the permanent deletion of its account from Instagram.

Background 

The batch of petitions arise out of grievances by multiple users on various social media platforms who were allegedly unduly censored or deplatformed, without notice or opportunity to be heard. 

Case Title:- Wokeflix v Union of India; Dimple Kaul v Union of India