In a petition in Karnataka High Court, X (formerly Twitter) challenged the legitimacy of India’s Sahyog portal, a central digital repository that told social media companies that they must block their access. The company believes that this is an auxiliary step procedure approved under Section 69A of the Information Technology Act 2000 (IT Act).
Few people would disagree that certain online content (child pornography, trafficking, etc.) is so unacceptable that law enforcement must actively track and immediately remove all traces of its existence. At the same time, there are other content that may need to be deleted for ideological, personal or other less clear reasons.
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The content should not be deleted unless the reasons for doing so are with one of the restrictions on freedom of speech (India’s sovereignty and integrity, national security, public order, public order, etc.).
This is Indian content – adjusting the central tension in the debate. While we must authorize law enforcement agencies to remove harmful content, we must make sure they do not abuse this power and kill our basic right to speech and expression.
It would be great if the government could rely on the constitutionally consistent content to review. Unfortunately, this is not our experience. To prevent the spread of harmful content, law enforcement agencies have shown that it is not uncommon in their efforts to fundamental rights, often adopting broad interpretations of the restrictions set forth in Article 19(2) so that they can defeat them and even create dissatisfaction with them.
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To legalize such extensive enforcement actions, Section 66A was introduced into the IT Act to sue those who send “offensive messages” online. This is challenged in the Supreme Court Shreya Singhal vs India League The case also violated the right to freedom of speech. Shreya Singhal also questioned the constitutional validity of Article 69A, which gave the government the power to block access to online information, accusing the provisions used in the section so broad that the government can limit speeches on the most tolerant reasons.
The Supreme Court disagrees with this, believing that Article 69A reflects the limitations set forth in Article 19(2) of the Constitution and therefore only reiterates existing constitutional exceptions. As the block order must be made in writing, it may be challenged in court and there is a detailed procedure that must comply with all block requests. The court also makes people comfortable from the fact that the relevant rules constitute a review committee, which meets every two months to ensure that the blocking orders issued meet the requirements of the IT Act.
The latest constitutional challenge is because the Indian government has relied on Article 79 to block online content.
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The original purpose of this section is to protect online intermediaries such as X from the responsibility of users for content posted on their platforms. This “safe harbor” exemption protects companies hosting user-generated content from prosecution of uncontrollable materials, but is only available if they promptly delete all content that the government notifies them to remove. It is in this case that the government has begun to utilize to perform content deletion and create a Sahyog portal.
Online platforms receive revocation notices from various government officials, so that it is almost impossible for them to figure out whether a given request is true.
I personally saw the request for police inspectors from remote corners of the country but have been sent from a universal email account that cannot be traced back to identifiable officials or departments. The Sahyog portal is an attempt to resolve these ambiguities. A central digital repository containing a certain list of all websites notified by governments, reduces the scope of confusion rather than authenticity.
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This is a major benefit. If the intermediary only needs to block the sites listed on the portal, they can ignore the hundreds of random requests currently received. Likewise, with all the notified sites needed to be blocked in one location, it is much easier for free speech activists to assess the constitutional effectiveness of the government’s blocking order in each case.
A portal of transparency is just a good thing.
The problem is that neither the Sahyog portal nor Article 79 has any safeguards built into Article 69A, which allows the Supreme Court to uphold its constitutional effectiveness. It may be unconstitutional unless it must be notified on the Sahyog portal in accordance with the procedures complying with the restrictions of Article 19(2). In addition, all such notifications should also be subject to the review of the same review committee, which is currently withdrawn under section 69A of the IT Act.
The Supreme Court has told us how to delete content. The government just needs to comply.
The author is a partner of Trilegal and the author of “The Third Way: India’s Revolutionary Method of Data Governance.” His X handle is @matthan.
