Twitter has approached the Karnataka high court against the government seeking judicial intervention in takedown or blocking orders issued under Section 69A of the Information Technology Act, and the kinds of speech that have been sought to be censored.
Section 69A permits takedown orders “in the interest of sovereignty and integrity of India, 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 relating to above.”
Ordinarily, this would have restricted the scope for interference, but in a world where the phrases ‘Honeymoon Hotel’ and ‘hate monger’ can have a person put behind bars, one can imagine the terror experienced by Twitter’s top brass in India. After all, non-compliance with a blocking order can lead to punishment of up to seven years in jail.
While the text of the petition is not publicly available, it is evident from news reports that Twitter is targeting governmental overreach. As a private company, it is fueled by the profit motive, not a commitment to free speech. It is the easiest thing for any company to comply with the law, and its users be damned.
If users are capable of defending themselves legally, they will do so, and if they are not, deletion of their tweets or deactivation of their profiles likely would not even amount to the proverbial storm in the proverbial teacup. It is clear that Twitter is trying to defend itself and its business model.
As per an NDTV report on the filing of this case, Twitter has even cited instances where tweets from official handles of political parties have been sought to be taken down. Twitter has also said that blocking orders are often not specific and do not provide cogent reasons. It seems that Twitter is caught in a bind.
While compliance is the easiest path for any company, Twitter clearly also realises that its USP is, to put it politely, a medium for the exchange of political dialogue. Should the word get around that only one side of the political aisle is being allowed on Twitter, it would likely mean the end to its popularity.
The fear of criminal prosecution and arrest can be debilitating. Especially for Twitter’s compliance officer, who is in constant threat of prosecution in case a blocking order is not obeyed. At the same time, this poor soul risks being pilloried by the other side for complying with these orders. There would also undoubtedly be pressure from the company itself to not give in to too many blocking orders, lest Twitter lose its signature sense of chaos masquerading as political argumentation.
When the requirement of appointing a chief compliance officer and resident grievance officer was brought in last year, Twitter complied only after a couple of interventions from the Delhi high court. It first appointed a lawyer and then a US-based employee as grievance officer. Only after a high court ultimatum were regular employees appointed to the posts of chief compliance officer and interim resident grievance officer. Clearly, an employer as popular as Twitter was struggling to fill these posts with regular full-time employees, as was mandated by the 2021 IT intermediary rules.
This petition opens up the possibility of a new phase in India’s ongoing battle for the protection of civil liberties, where corporates take up the cudgels to protect their business models. WhatsApp has already challenged the 2021 intermediary rules to protect privacy and its business model.
There is a petition filed in the Supreme Court for the ‘banning’ of halal products. Will companies contest such moves to protect their markets?
As the Twitter example shows, that would be very likely. Companies, morally agnostic though they tend to be, will fight to protect their market and their business models. It’s clear that the government has now entered a phase of obvious and pervasive censorship, overruling lobbying efforts by these social media companies. They would otherwise have been loath to publicly go against the government. The government’s insistence on complete control is forcing these agnostics to take a stand, and a firm one at that.
Sarim Naved is a lawyer practising in Delhi.