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Online Free Speech UPSC NOTE

 


Blocking orders by the Ministry on tweets

  • Karnataka High Court dismissed Twitter’s challenge to the issuance of blocking orders by the Ministry of Electronics and Information Technology (MeitY) in connection with the taking down of Twitter accounts and specific tweets.

  • The High Court admonished Twitter for not complying with the orders and imposed an astounding cost of ₹50 lakh on the United States-based social media company.




Legal provisions

  • Section 69A of the Information Technology Act, 2000, empowers the state to issue blocking orders in cases of emergency on the grounds such as 

    • Sovereignty and integrity of India 

    • Defence of India 

    • Security of the State

    • Friendly relations with foreign States

    • Public order or for preventing incitement to the commission of any cognizable offence relating to the above. 

  • The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (Blocking Rules) lays down the procedure for any blocking order issued under Section 69A.

  • Shreya Singhal vs Union of India

    • Section 69A constitutionality was challenged.

    • The Supreme Court of India upheld the validity of Section 69A and the Blocking Rules after observing that sufficient procedural safeguards were embedded.

  • Procedural safeguards such as provision of recording a reasoned order, and providing notice to the intermediary and the originator whose content was sought to be blocked.

Recent Issues

  • The Karnataka High Court has held that observations in Shreya Singhal cannot be construed to mean providing notice to the users of the content, and that even if reasons are recorded in writing, they may not be conveyed to the user. 

  • This runs contrary to judicial precedent. 

  • In the absence of procedural safeguards, the restrictions that are to be imposed on free speech can be implemented without any oversight or without giving any recourse to the affected entity to challenge them.

  • The High Court has acknowledged that blocking orders affect the rights of users, it held that the state could exercise its discretion to hear users and that issuance of notice under Rule 8 was not mandatory. 

  • It observed that users of Twitter did not “suffer from some handicap” that prevented them from accessing the appropriate remedies available to them.

  • Additionally, the High Court held that claims of users whose tweets or accounts were blocked could not be espoused by Twitter and that none of the affected users had approached the High Court.

  • View of the High Court that users need to be identified for notice to be given and that Twitter must provide this information is divorced from reality when it comes to application of the Blocking Rules.

  • MeitY routinely cites the confidentiality requirement under Rule 16 of the Blocking Rules to deny blocking orders to originators of content.

  • Obtaining blocking orders becomes an impossible task to complete, even when requested through the Right to Information process, and even if the originator identifies themselves. 

  • This is further evidenced by how the blocking orders in this case were provided to the High Court in sealed covers.


                        

Is it against freedom of speech?

  • Reasonable restrictions on the fundamental right to freedom of speech can only be instituted on the basis of eight specifically enumerated grounds under Article 19(2) of the Constitution.

  • The Supreme Court had clarified in Shreya Singhal that blocking under Section 69A and the Blocking Rules must conform to those grounds only.



  • The High Court’s reproduction of certain portions of blocking orders in its judgment reveals that one of the reasons was that the content could lead to the spread of “fake news” and “misinformation”, which had the potential to disturb “public order” and threaten the “security of [the] State”.

  • Misinformation and fake news are not grounds under which free speech can be restricted under Article 19(2) and Section 69A.

  • The Supreme Court has repeatedly held that for speech to be prejudicial to maintenance of public order, there must be a direct link between the speech and the potential threat to public order.

  • However, the High Court is convinced that these blocking orders are “well-reasoned”, even though no nexus can be established with public order and the security of the state.

  • This reliance on dissemination of false information to obstruct digital rights and free speech has been witnessing a rise over the past few years.

  • Disproportionate Internet shutdown orders to curb this spread of false speech and misinformation.

  • In Brij Bhushan And Another vs The State Of Delhi, the Supreme Court held that pre-censorship on freedom of speech is unconstitutional. 

  • Such a digital prior-restraint, that too so disproportionate in nature, has the potential of inducing a chilling effect on the freedom of speech of online platform users.

  • The Karnataka High Court’s judgment subverts the procedural safeguards that must be employed while restricting the freedom of speech, and erodes the principles of natural justice which dictate for the affected party to be allowed to present their case to the best of their abilities. 

  • Along with the recently amended IT Rules on fact-checking, the judgment has the dangerous potential of reposing untrammelled power in the State to remove any content that it deems to be unfavourable.

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