In July 2022, Twitter dragged the Indian government to court, challenging 39 orders to take down content from the social media site, including tweets and handles that amplified the year-long farmers’ protest on the borders of Delhi against three proposed laws.

This was the first time that a social media company had mounted a legal challenge against the government’s orders. Many digital rights activists saw this as a significant intervention in protecting the right to freedom of expression.

But last week, a single-judge bench of the Karnataka High Court dismissed Twitter’s petition. Justice Krishna S Dixit also imposed a fine of Rs 50 lakh on the social media company for taking more than a year to comply with the take-down requests.

Legal experts and digital rights activists Scroll spoke to believe the judgment has worrying implications for free speech on the internet, and, in effect, endorses state power to block critical content on social media without any checks.

“A reading of the judgment reveals that excessive power has been extended to the government to block content that it may deem to be unfavourable without following any procedural safeguards,” said Radhika Roy, a legal counsel at the Internet Freedom Foundation.

The steep fine, too, sends out a signal, argued Nikhil Pahwa, editor at the technology news website MediaNama. “It would discourage other social media platforms too from standing up for free speech rights of their users.”

Farmers at Singhu border held up placards criticising the Indian media for its portrayal of the protests against the farm laws, in November 2020. | Vijayta Lalwani/Scroll

‘The power to withhold accounts, not just tweets’

One of the contentions of Twitter was that the government’s orders to block not just tweets, but entire accounts – and that, too, for an indefinite period – was against the law. “The decision to block whole accounts rather than specific tweets runs contrary to the principles of proportionality” said Roy.

The High Court has, however, argued that the government was well within its power under the emergency powers of the Information Technology Act to demand such take-downs.

The court argued that “a tweet specific ban may encourage the tweeter to get into ‘better luck next time’ approach.”

But, as Roy pointed out, blocking a handle amounts to withholding tweets a user might post in the future.“Section 69A of the IT Act categorically allows blocking of content that has already been posted, transmitted or published, rather than blocking of content that may be posted in the future,” she said.

Pahwa seconded Roy’s view, saying that the blocking an entire account was disproportionate punishment.

“It restricts the users’ ability to post legal content in future, and thus violates the right to free speech. Blocking an account is indefinite censorship,” he said.

Pahwa added: “It is disappointing that the court seems to have done nothing to restrict the power of the government to block legal speech secretly.”

No prior notice

Twitter had also argued that the government needs to inform the user whose tweets or handles are being blocked about the reasons behind the order.

But the court has legitimised the government’s position that it has the discretion to not inform users before their tweets or accounts are blocked.

The court said “anti-India campaigners, terrorists, sedition-seekers and foreign adversaries who intended to destabilise India and jeopardise national security on communal lines” do not deserve to be served notices.

“The user will get alert of the same and get more aggressive, change his identity and will try to do more harm by either getting himself anonymous and spread more severe content,” the court said.

As several rights activists have pointed out in the past, the total lack of transparency and information in such orders denies a user the “right to be heard” and hascreated a “perfect mechanism of censorship by proxy.”

“In case a user is identifiable, then they deserve to be given an opportunity to be heard and even get access to the blocking orders, so that they are able to challenge the order in the court,” said Pahwa. “If they don’t know about the order, how will they know what to challenge?”

The 2009 Blocking Rules of the IT Act allow the government to keep the blocking orders confidential. When Twitter filed the petition in the court last year, it submitted the copies of blocking orders in a sealed envelope.

Pahwa said the case offered the court a chance to unseal the orders in the interest of transparency but it chose not to do so.

In April, the Centre submitted in the court that before any account or content is blocked, it shares detailed reasons with the social media platforms before issuing blocking orders and if they disagree, they are given a chance to participate in review meetings.

The court said it found demands for blocking the tweets and users reasonable and in accordance with the law.

The court stopped short of issuing guidelines on blocking content on the internet, citing it would not use its powers in a case involving “foreign entity engaged in speculative litigation.”

Both Pahwa and Roy said Twitter’s challenge was an important case concerning the fundamental right to free speech and had nothing to do with it being a foreign company.

Elon Musk with Prime Minister Narendra Modi in New York on June 21.| Narendra Modi/ Twitter

What now?

While the judgment can be challenged in the court, observers say that it is unlikely that Twitter would take the legal battle ahead. They argue that under Elon Musk, the social media giant is increasingly inclined to comply with government orders.

“I do not think Twitter will challenge the judgment, more particularly so under the leadership of Elon Musk,” said Pahwa.

After meeting Prime Minister Narendra Modi in the US last month, Musk had said Twitter had no choice but to obey Indian laws otherwise it would risk getting shut down.

“We will do our best to provide the freest speech that is possible under the law,” he had said.