Edition 8: Karnataka HC allows X to challenge part of IT Rules; railways ministry sent X another takedown notice
While solicitor general Tushar Mehta did not object to X's amended application, he objected to the inclusion of Digipub and Abhinandan Sekhri as intervenors in the case.
The Karnataka High Court on July 1 allowed X to also challenge the constitutionality of Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and the constitutionality of the Indian Cyber Crime Coordination Centre’s (I4C) Sahyog portal in its ongoing lawsuit against the use of Section 79(3)(b) to issue takedown notices.
While the Centre had opposed X’s plea to expand the scope of its petition in a statement of objections filed on June 30, during the hearing, solicitor general Tushar Mehta said that he “may not seriously object to it”. In its written statement, the government had opposed challenging the constitutionality of the rule at “this late stage”.
Justice M Nagaprasanna gave X two days to file its amended application.
Senior advocate KG Raghavan, on behalf of X, brought to the court’s attention a takedown notice sent by the railways ministry on June 26 where the ministry sought to get 183 tweets removed. The tweets include those posted by multiple news publishers and fact checkers including NDTV, Deccan Chronicle, CNN News18, TV9 Marathi, Manorama News, Zee Business, Lokmat Times, ETV Bharat, News24, Dainik Jagran and NewsMeter, and those by journalists including Sahara Samay’s Surya Reddy.
The links showed a lady driving on railway tracks near Shankarpalli, Telangana which “caused halting of trains”, Raghavan said, reading from the notice. He questioned how could such content be treated as “unlawful content”.
From the June 26 notice sent by Railways Ministry to X:
“It has come to the notice of this Ministry that several links/URLs hosted on your platform x.com are sharing video/content having sensitive media as it is depicting tendency self harm and also pose a threat to safety of rail users. It is also the violation of section 161 (Unauthorised driving at Railway tracks ia punishable offence) section 150 and section 152 (Action lead to accidents or endanger human lige) Indian railways act 1989. This is not only against the ethical norms but also against the content policy of x.com itself under suicide or self-harm. As sharing of such video may also disrupt train operation or encourage self harm. It is categorically mentioned that the content showed in shared URLs/links ( Attached in appendix-A_ may be taken down immediately. As committing such type of act may leads to dangerous rail accidents also affects the Indian Railways train operation.” [sic]
Raghavan argued that such content was news. “If a car goes on a railway track, it is news. If an aeroplane lands on a railway track, it is news. If an aeroplane lands on a runway, it is not news,” he said.
“The undersigned has been designated as the nodal officer for the purpose of notifying intermediaries in respect of unlawful information, as per Section 79(3)(b) of the IT Act, 2000 read with Rule 3(1)(d) of the IT Rules, 2021 along with Section 69A of the IT Act 2000 and IT Rules 2009 (Blocking rules),” the notice said.
Raghavan argued that this showed that even the government recognised the “Section 79(3) is not a standalone provision. It has has to have the purchase of [Section] 69A.” Mehta disagreed with Raghavan’s interpretation.
Since this latest takedown notice had not then been served to the Centre, Mehta did not have a copy, something that the judge acknowledged.
Mehta, in line with the Centre’s statement of objections, opposed the inclusion of Digipub News India Foundation and Newslaundry co-founder Abhinandan Sekhri as intervenors in the case.
The matter is now listed for final hearing on July 8.
In both its submissions of objections filed on June 30, the government defended the creation of Sahyog as a platform meant to facilitate easy of takedown notices under Section 79(3)(b) as a legal act; argued that Rule 3(1)(d) was not a vague provision; and submitted that Section 79 takedown notice process — distinct from the Section 69A blocking regime — had enough procedural safeguards.
The Tech Trace has seen both the statements of objections.
Why is the government opposing Digipub, Sekhri’s intervention application?
In its June 30 submission, the government said that Digipub’s intervention was a “collusive application” meant to only improve X’s case and does not raise any “actual questions of harm caused to any fundamental rights”. It said that the intervention application was filed too late, when the matter had already been listed for final arguments.
The government called Digipub and Sekhri’s application “vague, speculative, baseless, and misleading”.
The contested provisions — Section 79(3)(b) and Rule 3(1)(d) — only concern intermediaries and their safe harbour, not originators of the content, the government submitted in its opposition to inclusion the media body.
“It is submitted that no liability is imposed upon the originator of the message nor is any action taken against them under either the rule or the Section,” the Centre said. It said that the consequences of non-compliance with Rule 3(1)(d) are only borne by the intermediary. Digipub and Sekhri’s argument is that the Section 79(3)(b) process wholly excludes originators of the information.
Both Digipub and X have argued the Section 79(3)(b)/Rule 3(1)(d)/Sahyog process excludes content originators from the takedown process.
“Through it [Sahyog], executive authorities may order content removal without notice, without reasons, and without affording the affected parties an opportunity to respond,” Digipub had submitted.
In the court on July 1
Senior advocate Aditya Sondhi, on behalf of Digipub: “We are the content creators who are ultimately affected by any takedown order. …”
Justice Nagaprasanna: “This is between the government of India and Twitter.”
Aditya Sondhi: “The intermediary is Twitter.”
Justice Nagaprasanna: “Yes.”
Aditya Sondhi: “But the content is ours.”
Justice Nagaprasanna: “That’s alright. How are you aggrieved?”
Aditya Sondhi: “Ultimately, it is my content, my right to speech.”
Justice Nagaprasanna: Your content qua Twitter, not qua government of India.”
Aditya Sondhi: “It is like this: under the 2009 rules, there is a hearing contemplated even qua content creater, that is, a news media house. Now our case, in support of the petitioner, is that under the newframework, that is given a go-by. [Section] 69A is given a go-by, and direcly orders are being issued to the intermediary, that is, Twitter to take down.”
[short discussion on whether Digipub has filed its application.]
Tushar Mehta: “Let application also be listed together but he [Sondhi on behalf of Digipub] need not support Twitter. Twitter is competent enough. It is an international body. It does not need any such external support.”
Justice Nagaprasanna: “We will hear it along with the main [case].”
Aditya Sondhi: “Very well.”
Tushar Mehta: “I would be opposing any third party impleadment.”
Justice Nagaprasanna: “We will not allow the application. Let it be heard along with the main matter.”
The government in its statement of objections to Digipub’s application said that no takedown notices had been issued against any of the posts by the prospective intervenors, and that Digipub and Sekhri’s right to freedom of speech and expression have not been affected. It said that they had not suffered any civil or criminal consequences or had their fundamental rights affected because of Rule 3(1)(d).
Calling the media body’s claims of chilling effect on free speech “baseless”, the government submitted in the same document said that X could not claim chilling effect as intermediaries only act a “platforms for the speech of other users” and do not engage in speech themselves.
Government’s stance:
1. Section 69A blocking regime is different from Section 79 notification mechanism
The government said that X’s case incorrectly “conflates the entirely separate blocking regime of Section 69A with the notification mechanism of Section 79” as it argued that the safeguards for the two provisions were distinct.
It argued that while Section 69A provides for blocking for six specific reasons, Section 79(3)(b) and Rule 3(1)(d) are about “lifting” safe harbour when an intermediary hosts any unlawful information.
2. Section 79 has not been challenged
The government submitted that since X has not challenged Section 79 and the provision was upheld by the Supreme Court in the Shreya Singhal judgement of 2015, it is undisputed that the government is empowered to notify intermediaries under Section 79 when unlawful content is found on their platforms.
To be sure, in Shreya Singhal, the apex court read down “actual knowledge” in Section 79(3)(b) to mean a court order or a notification from an appropriate government or its agency about unlawful acts under Article 19(2).
3. Rule 3(1)(d) is not ultra vires of the IT Act
The union government opposed any reading down of Rule 3(1)(d) arguing that the provision did not grant the government any blocking powers outside the scope of Section 69A. It also said that non-compliance with Rule 3(1)(d) only leads to loss of safe harbour as per Rule 7 of IT Rules, 2021.
The government said that Rule 3(1)(d) is not ultra vires of the IT Act as it does not create additional categories of unlawful information beyond what is there in Section 79(3).
4. ‘Laws in force’ has a specific meaning
The Centre said that the use of the word “unlawful” in Rule 3(1)(d) did not make the provisions vague, as the word has a definite meaning in law. It is qualified by the words “under any law for the time being in force”, it said, thereby sufficiently defining the conduct which the rule seeks to regulate. “Laws in force” is “a specific body of clearly defined laws”.
The Centre said that the appropriate government under Rule 3(1)(d) did not adjudicate on the lawfulness of the information; only courts can do that. “It is submitted that every user in India has the right to take recourse to legal procedure in case such user believes that her content has been wrongfully removed/disabled,” it said.
Both X and Digipub argued that the use of any “unlawful” content in Rule 3(1)(d) exceeds the scope of restriction on free speech placed under Article 19(2).
5. Safeguards are built into Rule 3(1)(d)
The Centre submitted that Rule 3(1)(d) has sufficient safeguard built into its provisos. For instance, notifications can only be issued by authorised agencies notified by the appropriate government.
The government said that Sahyog was established as a further safeguard that is meant to create a centralised, standardised and accessible mechanism through which law enforcement agencies can track non-compliance by intermediaries.
Arguing against X’s argument that the entire process usurped the court’s authority by allowing notices be sent before any action is initiated in a court of law, the government said that “no proceeding can be initiated in any court of law until the protection of Section 79 is lifted”.
By necessity, Rule 3(1)(d) would have to be exercised before court proceedings because “such proceedings can be initiated only after the safe harbour protection is lifted”, the government said.
6. X cannot claim Article 19 rights
The Centre reiterated its argument that X cannot claim free speech rights under Article 19 as it is platform. In its initial statement of objections, the government said that X cannot claim Article 19 rights reserved for natural persons.
“It is submitted that rights under Article 19 can only be claimed in respect of one’s own speech. It is submitted that the very purpose of the concept of safe harbour is to immunise intermediaries from liability for speech posted on their platforms because this speech is not by the intermediaries themselves but rather by the users of the intermediary’s platform,” the government said.
Interestingly, Digipub and Sekhri also argued that as an intermediary, X cannot claim right to free speech and right to practice any profession (Article 19(1)(g)). X is “unable to address the editorial damage, the chilling effect, or the resulting deprivation of public access to lawful journalistic content”, they had contended.
The government said that X’s reliance on the Bombay High Court’s judgement in the fact check unit matter was “misplaced” as that judgement dealt with Rule 3(1)(b)(v) while X is challenging Rule 3(1)(d).
The government said that X’s reliance on international conventions was unnecessary because such conventions are binding only to the extent they are not inconsistent with the domestic law.
7. Sahyog is legal, meant to simplify notices sent to intermediaries
In both the statements of objections, the government reiterated its defence of Sahyog as a legal portal that was set up within the scope of the IT Act. It said that Sahyog did not include a blocking process and was created only “to simplify the process of sending notices to intermediaries” under IT Rules, 2021.
Sahyog only facilitates and allows the issuance of takedown notices, not blocking orders, the government said. It further said that the portal allowed intermediaries to raise a request for non-compliance if they think the notification is wrongly sent.
“It is submitted that only in case such a request is rejected by the appropriate agency would action be taken under Section 79. It is submitted that the action taken is limited to lifting of the safe harbour protections under Section 79. It is submitted that no information is blocked or censored,” the state said.
8. Notification by executive officers does not automatically mean bias
The government said that government officers notifying intermediaries about unlawful content did not mean that the government was acting as a judge in its own cause. It said that the government would act in a biased or a prejudicial manner on becoming a judge in its own case “amounts to stretching the bias rule unacceptably far”.
“It cannot be contended that government appointees would by definition be predisposed to favor [sic] the government in all cases,” the government said.
9. Centre defends previous notifications, takedown notices
In its plea to amend its petition, X has sought to get an office order by the Ministry of Heavy Industries quashed. This order appointed a senior official from the National Informatics Centre (NIC) in MHI as the nodal officer to issue takedown notice under IT Rules. X argued that this offer reports to MeitY and was not “intimately” connected with the functioning of MHI. This office order, X alleged, was a way for MeitY to “circumvent Section 69A”.
The Centre denied that MHI had issued the notification at MeitY’s behest. It said that since government and court’s IT infrastructure is either provided or managed by NIC, NIC office or officers are deputed to many government departments and ministries “for ease of functioning related to IT infrastructure”.
“It said that the government and court’s IT infrastructure is provided by NIC. “The same does not mean that NIC is directing functioning of all the Ministries, Departments and Courts,” the government said.
The Centre defended the previous takedown notices sent by the railways ministry, arguing that they were sent to prevent promotion of unlawful activities which is within the scope of Section 79.
Read my report for The News Minute on the kind of takedown notices police departments of Tamil Nadu, Maharashtra, West Bengal and Bihar sent to X.
Update (1:45 pm): First section was updated with more details from the June 26 takedown notice sent by Railways Ministry.
“The End”