Govt seeks dismissal of Twitter's petition at Karnataka HC, says platform submitted incorrect evidence

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The Central government has come out all guns blazing against Twitter, which had approached the Karnataka High Court for seeking relief from blocking orders issued by the government on 39 URLs under Sec 69A of the Information Technology Act, 2000.

In its statement of objections filed by the government on September 1, reviewed by Moneycontrol, the government has sought dismissal of Twitter’s petitions on the grounds of maintainability -- that Twitter is a foreign registered body and cannot seek to defend Article 19 (right to disseminate information of speech of other citizens), Article 14 or Article 21 of the Constitution like ‘citizens of India’ or ‘natural persons’.

In line with this, the government also said that an intermediary platform like Twitter cannot be arbiter of free speech. Only the government can take action on it, the Statement of Objections read.

Similarly, the government added that the platforms like Twitter should not be allowed to be determine which content may cause national security or public order issues.

Further arguing to dismiss the petition on grounds of maintainability, the government argued that remedy of writ under Article 226 or 32 of the Constitution is not available for ‘foreign commercial entities’ like Twitter.

As of now, the Karnataka High Court has given notice to the Indian government regarding Twitter’s petition and provided time to the government to file its reply in the case. The next hearing is scheduled to be heard on September 8.

Incorrect evidence?

In the affidavit, the government claimed that the evidence submitted by Twitter as part of its petition on the blocking orders under Sec 69A on 39 URLs, was allegedly ‘incorrect’.

Earlier, in the petition, Twitter had claimed that the government's blocking orders did not explain how the content in question attracted Sec 69A.

Twitter had submitted details of these 39 blocking orders in their petition under sealed cover.

However, in the affidavit, the government’s contention was that the details of the URLs and their corresponding justification for blocking that was submitted by Twitter did not match the one that the government sent to Twitter at the time of issuing the blocking orders.

The government told the court that, prior to meetings that are held between the intermediaries and the government in this regard, it shares ‘complete information’ with Twitter and other platforms including justification explaining the application of Sec 69A .

Under sealed cover, the Indian government submitted their ‘evidence’ to the court.

Moneycontrol has reached out to Twitter with specific queries in this regard, and the post will be updated when a response is received.

Questions timing of compliance

This entire saga between the Indian government and Twitter set in motion from June, when the government sent notices to Twitter regarding non-compliance to its blocking orders.

In these notices, Twitter was warned that further non-compliance would result in removal of safe harbour immunity under Sec 79(1) of the IT Act.

Following this, the microblogging platform complied with a trove of such blocking orders which were not all recent. Some of them were issued by the government in 2021.

A Moneycontrol analysis from June also showed that Twitter had complied to the most number of blocking orders in the six months of 2022.

In fact, the 39 blocking orders in Twitter’s petition were issued by the government between February 2021 and February 2022.

In its affidavit, the government pointed out that by not complying to many of these orders at the time of their issuance, Twitter ‘purposely caused inordinate delay’.

The government said that by waiting for a year, in certain cases, to comply with the orders, the platform allowed the content to become more viral.

The government also pointed out that Twitter had not challenged these orders in the meantime.

It alleged that they complied with such orders in June ‘only for purposes of approaching this Hon’ble Court’, but that their intention was allegedly to remain non-compliant to Indian laws.

Regarding issuing notice to users

Twitter in its petition had said that despite being mandated under Blocking Rules of 2009, the Indian government had not provided any notice or opportunity of hearing to those whose accounts or tweets were blocked by the government.

The government in its affidavit reasoned that it is ‘prudent and sensible’ to not issue notice to users whose content was being blocked under grounds of national security and public order.

The government argued that by informing these users it will cause ‘more harm’ as many such content were ‘anti-India, seditious, or any religious content with potential to incite violence’.

It reasoned that if informed, the user will ‘get more aggressive, change his identity and will try to do more harm’.

Govt amps it up

In the affidavit, the government did not just limit itself to seeking dismissal of the petition, but also, while claiming non-compliance to orders issued under Sec 69A of the IT Act, indicated that Twitter’s safe harbour immunity under Section 79 (1) of the IT Act should be removed.

This provision provides immunity to intermediaries from content posted by third parties.

In one instance, the government said that Twitter, after already having blocked an account under Sec 69A, unblocked it of its own accord.

This ‘U-turn’, as the government termed it, amounts to deliberate non-compliance and allegedly amounts to abetting the crime of publishing objectionable content.