The social media platform X formerly known as Twitter asked the Karnataka high court to review how the Indian government utilizes Section 79(3)(b) of the Information Technology Act.
The Section 79 of the IT Act sets forth specific requirements for an intermediary to obtain safe harbor liability exemptions for posted content from others. According to Section 79(3)(b) of the Information Technology Act the protection shield expires when an intermediary overlooks requests from an “appropriate” governmental department or “its agency” to remove dangerous material.
The Karnataka high court received a plea from X which argued that Section 79(3)(b) establishes an unlawful system for content blocking and undermines the 2015 Shreya Singhal judgment set by the Supreme Court.
Content blocking activity must follow two procedures according to the court: it needs a valid court order and the provisions outlined in Section 69A where the IT ministry has the authority to deem content dangerous to national security and sovereignty and public order.
This provision lacks blocking authority for the government according to X while authorities improperly use it to evade Section 69A protection for unfettered online content censorship.
X has filed legal petitions to safeguard Sahyog portal.
The request for legal defense from blocking orders invalid under Section 69A of X also includes safeguarding their refusal to hire employees for the Sahyog portal which the platform had termed a “censorship portal.”
Indian Cyber Crime Coordination Centre (I4C) built the Sahyog portal as a means to simplify the execution of Section 79(3)(b) orders.
X opposes Sahyog portal in their petition because the law gives no authorization to establish the portal and it fails to mandate such a company appointment mechanism. Information Technology (Intermediate Guidelines and Digital Media Ethics Code) Rules, 2021 specifies the necessary appointment of officers which the organization already fulfilled.
X made its case to the court that the government actions expose threats to their operating business model which depends on users sharing legal material.
The Karnataka high court’s Justice M Nagaprasanna gave X permission to approach the court through an order issued on March 17 if government authorities initiated any consequential action against it. The government acknowledges that it has not imposed any punishment on X for its refusal to access the Sahyog portal.
What the petition says
According to X’s legal petition Section 79(3)(b) of the IT Act allows the Indian government to censor content arbitrarily and thereby threatens X’s operations within the nation.
According to the petition Section 69A remains the sole proper legal tool for blocking digital content because any departure from this standard voids Supreme Court rulings. The law states information blocking must follow the requirements of Section 69A which requires judicial inspection. The government’s decision to implement Section 79(3)(b) actively opposes court instructions according to the petition as revealed in media reports.
X Corp argues through its petition that the improper application of Section 79(3)(b) creates violations of two fundamental constitutional obligations regarding equal protection under Article 14 and freedom of speech and expression as stated in Article 19(1)(a).
Through its lawsuit the company wants to establish Section 79(3)(b) lacks power to issue blocking directives and wants these orders invalidated.
X Corp asserts that Section 79(3)(b) functions as a safety net measure for intermediaries while pointing out that the government should not utilize it for censorship purposes. According to reports the petition argued that by using this approach the government fails to meet the required procedural safeguards established under Section 69A which includes written reason recording and pre-decisional hearings.
The point of controversy addressed by the petition is the Sahyog Portal, which is administered by the Ministry of Home Affairs, through which, allegedly, a state police and other government departments issue take-down requests without following any legal due process.
The plea argued by X Corp mentions how such a portal provides an access to thousands of officials for removal of content without any transparency or oversight and opens up significant questions about unregulated censorship.
Besides, it contests the whole ‘Nodal Officer’ requirement towards the compliance of directions through this Sahyog Portal as not being legit under statute. This is part of the suit against a similar action in the year 2022, wherein X Corp had challenged the takedown orders under Section 69A for the reason of non-transparency and violation of free speech rights.
The court has granted X Corp the right to come back if any preventive action is taken by the government. The next hearing is scheduled for March 27.
What is the Sahyog Portal?
The Sahyog Portal is an initiative to enhance cooperation between government agencies and social media intermediaries to create a safer cyberspace. It was designed to facilitate the reporting and removal of unlawful content online, as well as streamline data requests from law enforcement agencies.
It provides for the government’s Central and state authorized agency to collaborate along with social media on measures aiming for combating cyber crimes efficiently.
One of the major hindrances in the adoption of this Sahyog Portal happens to be the non-cooperation from X, a very well-known social media platform in the country. Interestingly, while 15 more intermediaries are still undergoing the process, the last count showed that 38 others had already been “onboarded” by this program, including Meta, WhatsApp, Apple, Amazon, Telegram, and Instagram. It is learnt that onboarding cryptocurrency exchanges is under approval process.
However, several stakeholders have voiced grievances over compliance with privacy laws and the scope of misuse of data gathered through the portal.
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