‘Misinformation and fake news are not grounds under which free speech can be restricted under Article 19(2) and Section 69A’. Photo credit: Getty Images/iStockphoto
on 30 June 2023 Karnataka High Court dismisses Twitter’s challenge Regarding issuance of blocking orders by Ministry of Electronics and Information Technology (MeitY) regarding deletion of Twitter accounts and specific tweets. The High Court slammed Twitter for non-compliance of orders and imposed a hefty fine of ₹50 lakh on the United States-based social media company.
The judgment undermines the right to free speech and expression and also paves the way for the state to exercise unchecked power while removing content without following established procedure. Furthermore, it exhibits a new trend of hindering the exercise of digital rights and free speech based on the dissemination of misogynistic speech.
Ignoring Procedural Safeguards
Section 69A of the Information Technology Act, 2000, empowers the state to issue blocking orders in cases of emergency on grounds such as “sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states, public order or to prevent incitement to any commission” Is. Cognizable offenses relating to the above”. The Information Technology (Procedure and Safeguards for Blocking Access to Information by Public) Rules, 2009 (Blocking Rules) Prescribes the procedure for any blocking order issued under section 69A.
The constitutionality of this provision was challenged Shreya Singhal vs Union of IndiaWhere the Supreme Court of India upheld the validity of Section 69A and the Blocking Rules after observing that adequate procedural safeguards were built-in, such as provision for recording a reasoned order, and providing notice to the intermediary and originator whose material The demand was blocked.
However, the Karnataka High Court has upheld that observation. Shreya Singhal This shall not be deemed to provide notice to the users of the material, and may not be communicated to the user even if the reasons are recorded in writing. This is contrary to judicial precedent. In the absence of procedural safeguards, restrictions imposed on freedom of expression can be enforced without oversight or giving the affected entity any recourse to challenge.
This translates into arbitrary power being exercised by the state in removing material, an issue which was agitated before the Supreme Court. Shreya Singhal And it was only after stressing on the security measures that he was given rest.
Further, while the High Court has accepted that the rights of users are affected by blocking orders, it has held that the State can exercise its discretion to hear the users and it is not mandatory to issue a notice under Rule 8 . It found that users of Twitter were not “downtrodden” or “suffering from any handicap” that prevented them from accessing the appropriate remedies available to them. Additionally, the High Court held that the claims of users whose tweets or accounts were blocked cannot be supported by Twitter and none of the affected users have approached the High Court.
First, the latter observation is incorrect as human rights activist and author Aakar Patel, whose Twitter account was blocked, had filed an application to intervene in the matter. However, the High Court rejected his application. Second, the High Court’s view that users must be identified to give notice and Twitter must provide this information is at odds with reality when it comes to enforcing blocking rules. MeitY regularly cites the need for privacy under Rule 16 of the Blocking Rules to refuse to order the originators of content to be blocked. Even when requested through the RTI process, and even if the promoter identifies himself, obtaining a blocking order becomes an arduous task. This is also evident from the fact how the stay orders in this case were provided to the High Court in a sealed cover.
free speech, shock effect
Reasonable restrictions on the fundamental right to freedom of expression can be imposed only on the basis of eight specifically listed grounds under Article 19(2) of the Constitution. The Supreme Court had clarified in the Shreya Singhal case that the blocking under section 69A and the blocking rule should be based on those grounds only.
However, the High Court reproduced parts of the blocking orders in its judgment, suggesting that one of the reasons was that the content could lead to the spread of “fake news” and “misinformation”, including ” was capable of disrupting “public order”. and the “security of” is at risk [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 prejudicial to the maintenance of public order, there must be a direct link between the speech and the potential danger to public order. However, the High Court is convinced that these restraining orders are “well in place” even though no nexus with public order and security of the State can be established.
The reliance on the spread of false information to hinder digital rights and freedom of expression has seen a rise over the years. Inconsequential internet shutdown orders, such as those currently underway in Manipur, are regularly issued to prevent the spread of hate speech and misinformation. This trend of restricting fundamental rights with “fake news” rhetoric is reminiscent of the oft-cited rhetoric of the state citing national security to justify excessive and arbitrary laws.
Further, the High Court rejected Twitter’s contention that Section 69A only allows blocking of specific tweets. Blocking Twitter accounts in bulk is tantamount to prior restrictions on freedom of speech and expression, i.e., limiting future speech and expression. In the case of Brij Bhushan and others vs. State of Delhi, the Supreme Court held that pre-censorship on freedom of expression is unconstitutional. Such digital pre-moderation, that too inconsistent in nature, has the potential to have a catastrophic impact on the freedom of expression of online platform users.
The Karnataka High Court judgment subverts the procedural safeguards that should be employed when restricting freedom of speech, and subverts the principles of natural justice that require the affected party to present its case to the best of its abilities. instruct to allow. Along with the recently amended IT rules on fact-checking, the decision has the dangerous potential of giving the state unchecked power to remove any content it deems regressive.
Radhika Roy and Gayatri Malhotra are Associate Litigation Counsel with the Internet Freedom Foundation.