India Update: Twitter HC Ruling: A Cautionary Tale for Social Media Companies

In the case of X Corp v Union of India, the Karnataka High Court recently dismissed a writ petition filed by Twitter, Inc against certain blocking orders issued to the social media company by the Indian government under Section 69A of the Information Technology Act, 2000. In so doing, the court held that Twitter, despite being a non-citizen entity, could rely on Article 14 of India’s Constitution (Right to Equality) and, on this basis, it had the locus standi to file a writ. Importantly, the court upheld the government’s power to have entire Twitter accounts blocked under Section 69A of the IT Act, as compared to specific tweets only, and ruled that the law did not require reasons for blocking to be communicated, although that would be preferable.

Twitter filed a writ petition against certain orders directing it to suspend some accounts, as also for directions to have the blocking orders be made tweet-specific and not full-fledged account suspensions. The court framed eight issues, namely:

(i) Whether a foreign entity has locus standi to invoke writ jurisdiction;
(ii) Whether the entire Twitter account of a user can be blocked under Section 69A of the IT Act;
(iii) The impact of non-communication of reasons for the blocking orders;
(iv) The validity of the blocking orders without discernible reasons relating to objectionable content;
(v) Whether notice to users is mandatory and its effect on blocking orders;
(vi) The violation of the Doctrine of Proportionality by blocking orders; and
(vii) Twitter’s conduct and liability for exemplary costs.
The court ruled that, despite being a non-citizen entity, Twitter can rely on Article 14 of India’s Constitution (Right to Equality) and has the locus standi to file a writ. However, Twitter cannot claim protection under Article 19(1)(a) (Right to Free Speech) because it is not a citizen or Article 21 (Right to Life) because it is not a natural person. Moreover, it cannot espouse the cause of its account holders in the absence of any enabling legal provision in its support.

Effective Deterrent

The court upheld the government’s power to have entire accounts blocked under Section 69A of the IT Act, which it felt is a more effective deterrent as compared to tweet-specific bans. In its view, such extreme measures are necessary to block users with repetitive and highly objectionable posts. The court noted that Section 69A included the expression “for reasons to be recorded in writing” but did not require that reasons had to be communicated. As such, communication of reasons was discretionary on the authorities.

After going through the orders, the court found that they were speaking orders, and there was a strong nexus between the orders and the reasons assigned. Further, these reasons were also discussed with Twitter in the committee meetings. Furthermore, the exercise of determining whether certain content is objectionable is in the domain of the Executive, and a writ court cannot engage in forming an opinion against the determination of a statutory functionary.
Rule 8(1) of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 requires issuance of notice to account users “or” to the intermediary, giving the government the discretion to do either or both. In this case, the court took a view that as the tweets were seditious in nature, a notice to the account holders would only have alerted them.

The court held that Twitter, being a foreign juristic entity, cannot claim the Doctrine of Proportionality, which is, typically, available for protection of the fundamental rights of speech and privacy. The court also did not consider Twitter’s request to establish broad guidelines to regulate the exercise of discretion as there are sufficient checks and balances in place in this regard.
Most importantly, the court held that Twitter intentionally delayed complying with Section 69A despite being given warnings and failed to provide a reasonable explanation for the delay in approaching the court. Considering its culpable conduct, the court held that no relief can be granted under Articles 226 and 227 of the Constitution. Moreover, Twitter’s wilful non-compliance of the orders for over a year, and its sudden compliance just before the petition was filed reflected an intent to engage in speculative litigation, for which the court imposed exemplary costs of Rs 50 lakh (Rs 5 million) on Twitter.

Prompt Action Needed

This judgment shows that there is no scope for recalcitrance by social media intermediaries in complying with the government’s blocking orders. If social media intermediaries wish to enjoy the protection of Section 79(1) of the IT Act (immunity to intermediaries for violations on account of third-party content) and not face criminal proceedings (including imprisonment up to seven years along with fine), they must comply with the government’s blocking orders or take immediate legal action against them. Any delays in compliance with blocking orders or in approaching courts may be seen as an attempt at engaging in speculative litigation, which may attract exemplary costs.
Social media intermediaries must periodically monitor and amend their policies, community guidelines and terms of use, so that they have an unbridled right to block or take down seditious content, hate speech, fake news, and other content deemed objectionable. Additionally, they should also have the right to suspend the accounts of repeat offenders.

By Ravi S. Raghavan, Majmudar & Partners, India, a Transatlantic Law International Affiliated Firm.

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