Karnataka HC ruling on Twitter to turn tables for online platforms: Experts

Judicial review only after govt order is complied with and content taken down; but since much of the content has a shelf life, aggrieved users' 'free speech' may be impacted

Karnataka High Court’s ruling that dismissed Twitter’s appeal against government-issued content blocking orders is likely to change the equation between the government and internet intermediaries on content takedown issues, strengthening the grounds for the state, say experts.

“Intermediaries will need to comply with all content-blocking orders issued by the government and judicial review will only be an option after they takedown the content. However, every content has a shelf life. For instance, a short video may lose relevance after 12 days of being made. So platforms will virtually no longer be able to stand for the ‘free speech’ of users aggrieved by blocking order,” an executive of a social media intermediary said on the condition of anonymity.

He added that the government’s stand may get emboldened while issuing content takedown notices to intermediaries under section 69A of the Information Technology Act, 2000.

The Karnataka HC last week dismissed Twitter's plea against the centre’s orders to remove content and block accounts on the microblogging platform. The court was dissatisfied with Twitter’s delay in complying with blocking orders without providing adequate reasons promptly.

“It hardly needs to be reiterated that the Constitutional Courts do not come to the aid of litigants whose hands are soiled or who are indolent,” the court said.

As per section 69(A) IT Act, 2000, the government can issue directions for removing online content in the interest of the sovereignty, integrity, and defence of India, security of the State, friendly relations with foreign states, or public order.

Pavan Duggal, a Supreme Court advocate and expert in cyber law, said the judgement gives a loud message to intermediaries to comply with the due diligence required under the IT Act before starting to knock on the doors of the courts.

“The intermediaries who think that they can take the Indian judicial system for a ride, have to now wakeup from their deep slumber and revise their thought processes. This judgement will also open up the doors for levying more stringent exemplary costs against the service providers,” Duggal said.

Email queries to major intermediaries such as Google, Meta, Apple, and Twitter did not elicit any response till the time of press.

“This ruling has categorically held that the blocking (under section 69A) is legitimate and there is no reason for setting aside the orders. But the government’s power to block content is still amenable to judicial review and to say that such power cannot be assailable is an area where more legal jurisprudent will be required to be developed,” Duggal said.

There have been multiple instances of confrontation between intermediaries and the government on the validity of takedown orders under the law. Twitter had argued that some of the blocking orders issued during farmers' protests in 2020-21 were “procedurally and substantially deficient of the provision” and “demonstrate excessive use of powers.”

According to some reports, Apple sought a “concrete reason or a legal requirement” to comply with the Centre's February 2023 order related to blocking betting apps from its App Store saying it would be difficult to remove them since they were valid and legal in other countries.

Salman Waris, managing partner at tech law firm TechLegis Advocates & Solicitors says the HC verdict signals a major development in the battle between tech firms and Indian regulations and substantially widens the scope of powers available to the government.

“The court seems to have accepted the central government’s argument that Twitter, as a foreign platform, is not entitled to seek the same freedom of speech and other fundamental rights that are available to Indian citizens using the platform. The government’s stance implies that Twitter’s status as a foreign entity places limitations on the extent of rights it can assert on behalf of its users in India,” Waris said.

He added that the argument highlighted the nuanced legal considerations surrounding the rights and responsibilities of foreign digital platforms operating within a country’s jurisdiction.

Rohit Kumar, Founding Partner at public policy group TQH Consulting said: “Every company operating in a country must comply with the law of the land. However, we also need to make sure that the law balances the right to free speech with the need to maintain public order. Blocking requests should be used selectively and should emerge from a robust and transparent process to avoid misuse. The forthcoming Digital India Act will be a good opportunity to revisit the legal provisions.”