Indian Farmers’ Protest, Blocking Orders to Twitter, and the Fragile Balancing of Free Speech Amid Abysmal Regulation
Outlining limitations of blocking orders
February 2021 has borne witness to a standoff between Twitter India and the Modi Government. In the backdrop of a six-month-long farmers’ protest which has garnered both national and international support, the Indian Government issued blocking orders for Twitter to remove over 250 accounts linked to the farmer’s protest that were considered a threat to public order. At first, Twitter complied with the order, but within a few hours unblocked the accounts. This led to the government issuing a non-compliance order to Twitter which threatened to impose fines and imprison Twitter executives for up to seven years. As a result, Twitter complied with the order and blocked a majority of the accounts. However, in a statement that followed, they clarified that they would not take action on 250 of the accounts, those that belonged to media entities, journalists, activists, and politicians, since removing those would violate their owners’ right to freedom of speech. Further, they stated that they would continue to explore options under Indian law for the accounts that had been affected by the Government’s blocking order.
The resulting hornet’s nest stems from a combination of the Modi government’s strong-armed will to curb dissent and the inability of current Indian laws to provide a fair balance between restrictions on illegal speech and procedural safeguards to protect freedom of speech. This article will shed light on the flaws with the current procedure laid down for issuing blocking orders, which the Government frequently and arbitrarily uses to seek the removal of content that is entirely legal under Indian law but simply critical of government actions. Some examples of such behavior include the recent blocking of over 100 Chinese mobile applications and discussing the possibilities of blocking Facebook, Whatsapp, and Instagram citing reasons of public order.
Government blocking orders in India are primarily regulated by Section 69A of the Information Technology Act, 2020 (“IT Act”) and the procedure for blocking is laid out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“Blocking Rules”).
Section 69A of the IT Act provides that the Central Government may block public access of any online information if it is believed to be necessary in the interest of the state, public order, or for preventing incitement to commit a crime. Most of the controversial or speech-restrictive requests for removal are initiated by the Government under this section because of the opacity and flexibility of the accompanying Blocking Rules, which provide the procedure that must be followed for the issuance of such orders.
The Blocking Rules essentially set up an examining committee with a designated bureaucratic officer acting as its chairperson to consider the legality of blocking requests. There are three main shortcomings of the Blocking Rules, first lack of transparency, second, fundamentally inadequate provisions for allowing a response from recipients, and third, casting a wide net over what qualifies as an ‘emergency’ blocking order.
The first of these concerns the lack of transparency: the blocking rules mandate strict confidentiality of any requests made for removal of content and the subsequent action which is taken by the intermediary. This not only means that blocking orders are not subject to the public’s right to information but also creates a serious obstacle for an aggrieved party who would want to appeal the decision. Hence, mandating secrecy within the rules renders judicial redressal futile. For instance, Tanul Thakur, the creator of a satirical website, was not given access to the blocking request even after publicly claiming ownership of the website.
Next, it is difficult or impossible to successfully challenge an order once issued. The Blocking Rules provide that once the examining committee receives a blocking request, an opportunity may be given to the intermediary or content creator to appear and submit their “reply and clarifications”. However, in reality, this right to reply is hardly ever exercised. No record can be found of this having happened in the past. This may be for two reasons: first, because the designated officer in most cases does not issue a notice seeking an appearance and reply from the relevant party in the first place, and second, because intermediaries cannot be expected to be in a position to defend each of the millions of takedown notices that they receive. Hence, in the off-chance that the examining committee seeks a response from the intermediary, asking intermediaries to appear in front of designated officers to justify the content uploaded by one of its millions of content creators remains a futile exercise. It is even more so if such response is sought from the content creator because they would not have access to the blocking request in the first place, due to mandated secrecy.
This general lack of awareness of a right to respond to order is evident in the present case of the tweets supporting the farmers’ protest, where the designated officer told Twitter that there existed “no statutory requirement to provide or demonstrate justifications to the intermediary while passing orders under Section 69A”. Further, he stated that it was “astonishing” for Twitter to be commenting on “significant issues of freedom of speech”. This evidences an obvious departure from the due process — a process which, if followed appropriately, could have potentially led to several pieces of important information remaining online.
Finally, the language in the Blocking Rules providing for the issuance of emergency blocking orders is extremely broad, and confers almost unlimited discretion to the issuer, defining emergency orders only as an order that can be passed when “no delay is acceptable”. By contrast for regular blocking orders, it is required that the examining committee issue directions as a unit and then have the direction approved by the Secretary of the Government’s Department of Information Technology before notifying the intermediary. However, in cases of emergency blocking orders, the Department Secretary can decide on her own accord and retrospectively bring the request to the examining committee. The two disconcerting aspects here are first, lack of any clear definition of what comprises an emergency, and second, the liberty of the government to act as a check on itself without balancing this with sufficient transparency for an aggrieved person to seek judicial relief.
These shortcomings may very well be the reason that India ranks in the top five countries that made the most removal requests to Twitter in the first half of 2020. The Blocking Rules’ lack of procedural safeguards protecting freedom of speech makes it extremely easy for the Government to issue take-down orders, and very difficult to challenge those orders.
The constitutionality of Section 69A and the corresponding Blocking Rules was challenged in the Supreme Court of India in the landmark Shreya Singhal ruling of 2015. This ruling is famous for invalidating Section 66A of the IT Act which prohibited the dissemination of information causing ‘annoyance’, ‘inconvenience’, or ‘insult’. However, the same ruling reaffirmed the constitutionality of Section 69A and the Blocking Rules on grounds that any violations could be reversed once individuals moved to Court. It seems clear it is time for this position to be reassessed, given the impossibility of judicial review due to the confidentiality provision.
Withholding information from the public, not providing sufficient opportunity for the aggrieved party to respond, and creating a vaguely defined situation of what comprises an emergency has allowed for a wide net to be cast for the situations in which such orders can be issued. This fear of over-regulation has exacerbated over the past few years and is evident in the severe crackdown on free speech by the Indian Government. For instance, over the past years, the Indian Government has issued several blocking orders for Twitter to remove legitimate content highlighting the human rights violations in Kashmir and the Khalistani movement in north-west India.
There is an urgent need to reform the Blocking Rules and place adequate procedural safeguards within the mechanism of issuing blocking orders. Article 19 of the International Covenant for Civil and Political Rights, an international human rights instrument to which India has ratified, lays down a three-part test of legality, legitimacy, and necessity that a law restricting freedom of speech has to be in line with. This test has been applied on several occasions by the Supreme Court of India, including in the Shreya Singhal ruling discussed above. The constructive way forward is through dialogue between lawmakers and civil society to ensure that the Blocking Rules are revised to comply with these tests and to ensure that the legal mechanism for the Government issuing blocking orders is transparent, contains adequate procedural safeguards, and provides for effective judicial oversight through transparency.
Finally, until these loopholes in the existing laws are fixed and adequate judicial and procedural safeguards are put in place, it is incumbent upon the Indian Government to ensure that such laws are used sparingly and not merely as armor to regulate content that is critical of its practices.
— About the author: Shreya is an Employee Fellow at the Berkman Klein Center, where she works on the Lumen Project. She is a passionate digital rights activist and uses her research and writing to raise awareness about how digital rights are human rights.