Baba’s Explainer – Online Censorship

• Section 69A, for similar reasons and grounds on which it can intercept or monitor information, enables the Centre to ask any agency of the government, or any intermediary, to block access to the public of any information generated, transmitted, received or stored or hosted on any computer resource.

•  Any such request for blocking access must be based on reasons given in writing.

• Procedures and safeguards have been incorporated in the rules framed for the purpose.

• Intermediaries are required to preserve and retain specified information in a manner and format prescribed by the Centre for a specified duration. Contravention of this provision may attract a prison term that may go up to three years, besides a fine.
• When a direction is given for monitoring, interception or decryption, the intermediary, and any person in charge of a computer resource, should extend technical assistance in the form of giving access or securing access to the resource involved, and must comply with the request to intercept or monitor or decrypt the information concerned.
• Failure to extend such assistance may entail a prison term of up to seven years, besides a fine.
• Failure to comply with a direction to block access to the public on a government’s written request also attracts a prison term of up to seven years, besides a fine.
• The Act also empowers the government to collect and monitor data on traffic. When an authorised agency asks for technical assistance in this regard, the intermediary must comply with the request. Non-compliance may lead to a prison term of up to three years, besides a fine.

• Cooperation between technology services companies and law enforcement agencies is now deemed a vital part of fighting cybercrime, and various other crimes that are committed using computer resources.
• These cover hacking, digital impersonation and theft of data.
• The potential of the Internet and its offshoots such as mail and messaging services and social media networks to disseminate potentially harmful content such as hate speech, rumours, inflammatory and provocative messages and child pornography, has led to law enforcement officials constantly seeking to curb the ill-effects of using the medium.
• Therefore, most nations have framed laws mandating cooperation by Internet service providers or web hosting service providers and other intermediaries to cooperate with law and order authorities in certain circumstances.

• No, Section 79 of the Act makes it clear that “an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him”.
• This section protects intermediaries such as Internet and data service providers and those hosting websites from being made liable for content that users may post or generate.
• However, the exemption from liability does not apply if there is evidence that the intermediary abetted or induced the commission of the unlawful act involved.
• Also, the provision casts a responsibility on intermediaries to remove the offensive content or block access to it upon getting “actual knowledge” of an unlawful act being committed using their resources, or as soon as it is brought to their notice.
• In Shreya Singhal vs U.O.I (2015), the Supreme Court read down the provision to mean that the intermediaries ought to act only “upon receiving actual knowledge that a court order has been passed, asking [them] to expeditiously remove or disable access to certain material”.
• This was because the court felt that intermediaries such as Google or Facebook may receive millions of requests, and it may not be possible for them to judge which of these were legitimate.
• The Supreme Court’s recent judgment in Anuradha Bhasin versus Union of India (2020) provided a further shift in momentum for user rights online. In this case, a communication blockade imposed by the government in the territory of Jammu and Kashmir under Section 144 of the Criminal Procedure Code was challenged before the court.
  • While the case did not concern content blocking orders by the government, it did revolve around government-imposed restrictions.
  • Here, the court reaffirmed the fundamental principle that in cases where the government imposes restrictions on the freedom of expression and assembly, such orders must be made available to the public.
  • Further, the affected parties should be allowed to challenge such orders before the court.

• The role of the intermediaries was spelt out in separate rules framed for the purpose in 2011. In 2018, the Centre favoured coming up with fresh updates to the existing rules on intermediaries’ responsibilities, but the draft courted controversy.
• This was because one of the proposed changes was that intermediaries should help identify originators of offensive content.
• This led to misgivings that this could aid privacy violations and online surveillance.
• Also, tech companies that use end-to-end encryption argued that they could not open a backdoor for identifying originators, as it would be a breach of promise to their subscribers.
• Other proposed changes, which have not been acted upon, include rules that intermediaries should deploy automated tools for proactively removing or disabling public access to unlawful information, and to have a 24×7 mechanism to deal with requisitions of law enforcement.

Twitter has not complied fully with the Indian government’s statutory orders under Section 69A of IT Act because of following arguments

• Legitimate Voices: Twitter has said that the government’s blocking list had accounts of journalists, activists, and politicians whose accounts appear to be bonafide; that their posts are legitimate expression
• Disproportionate Order: Twitter has said that it reasonably believes that keeping them blocked would be a disproportionate act contrary to both Indian law and the platform’s charter objectives.

Criticism of Twitter Actions

• Disrespecting Indian Laws: Twitter is an intermediary bound by statutory orders of the government under the Act, and its refusal shows a lack of respect for Indian law.
• Twitter is not the Judge: Twitter, as a private company, cannot adjudicate or sit in appeal over the government’s judgment on what is proportionate or lawful. It may challenge the order in a court, but cannot simply choose to comply partially or not at all
• Impunity of Big Tech: Twitter’s defiance indicates the increasing power and impunity of Big Tech, requiring a clear and unequivocal zero tolerance response.

Counter Arguments to Criticisms

• Powers of Government is not absolute: Twitter appears to have justifiably formed an informed opinion that the blocking orders, even if validly issued under Section 69A(1) of the IT Act, are partly not lawful and that it is confident of succeeding in a challenge to the orders should the government take any coercive action to enforce them.
• Upholding Fundamental Rights: It is undeniable that platforms such as Twitter have significant control over how people’s right to free and informed speech is fulfilled. Mechanically following government orders without regard to their lawfulness, necessity or proportionality will seriously impact their audience’s fundamental rights
• Checks on arbitrary Power needed for Democracy: The tension between two powerful entities — the government and social media platforms — on questions of which speech to promote and whose speech to curtail is healthy and constructive. It acts as a check on the arbitrary power that would prevail if both were on the same side as a matter of routine.