India: Key Takeaways From the High Court’s Scrutiny of Government Orders to Block Online Content

The extent of government orders to block user content and accounts from public access recently came before the Indian High Court of Karnataka. X Corp (erstwhile Twitter Inc) had challenged certain orders issued by the government which directed the company to block public access to certain user accounts and tweets.

This article examines three issues that the High Court has ruled on, namely, whether the government:

Section 69-A of the (Indian) Information Technology Act empowers the government to direct intermediaries to block online content in accordance with the procedure prescribed in the 2009 rules on blocking access to information by the public (the “Blocking Rules”). It specifies that “any information generated, transmitted, received, stored or hosted in any computer resource” can be blocked. Before passing such a direction, however, the government has to be satisfied that it is necessary to do so in the interest of the sovereignty and integrity of India, its defence and security, its friendly relations with foreign states, to maintain public order, or to prevent incitement to commit any cognisable offence.

The High Court interpreted Section 69A to hold that the government may not only block specific information/content, but also user accounts in their entirety.

X Corp had argued that blocking of user accounts constitutes an absolute embargo not only against the existing content, but also future content. It was argued that the use of the past tense in Section 69A made it clear that the government could block content that had already been originated but not content that was yet to be originated. Therefore, the government was not empowered to block user accounts, as this would amount to preventing the originator of the “offending” content from posting any future content.

The High Court observed that “the rules of grammar cannot jettison the rules of law” and that interpreting the use of the word “information” to mean only specific content and not a user account would render the provision otiose. It observed that a content-specific block might encourage the originator to adopt a “better luck next time” approach. To prevent this, Section 69A must be interpreted to include the power to block user accounts, in addition to specified content. The High Court also held that the power conferred under Section 69A is preventative, apart from being penal and curative, since the government can pre-emptively pass a direction to block a user account. On this basis, the High Court held that the power under Section 69A also includes the power to block user accounts.

That said, the judgment passed against X Corp does not discuss the absurdity that prevents the words of Section 69A from being construed according to the tense used in the provision. It remains to be seen whether the appellate bench agrees with the High Court that the originator’s potential “better luck next time” approach justifies the High Court’s decision not to apply a literal interpretation.

Notably, the Supreme Court has in previous decisions discouraged the practice of giving extended meaning to expressions and effectively reframing provisions. Accordingly, the High Court’s interpretation of Section 69A will have to pass muster in this regard.

The judgment also does not verbalise the clear factors that would sway the government’s decision in favour of blocking a user account rather than specific content. The High Court does indicate that it was satisfied in this regard with the fact that the government appeared to have resorted to the blocking of user accounts after discovering that the originator had a pattern of repeatedly posting “offending” content that could potentially threaten national security and public order. Having said this, the threshold at which the government can exercise its power to block an entire user account (rather than content) is not clear from the judgment. For example, for how long does the pattern of repeating “offending” content have to go on before the government decides to block the user account rather than just the content? At present, the power seems to be interpreted as the power to prevent an act rather than block the content.

The judgment also does not address the consequence of blocking a user account. While the judgment observes that separating the “innocuous” content from the “offending” content is not practical, it does not discuss whether it is legally justified that lawful content created either by the blocked user or third parties, in response to the activities/posts contained in the user account, may be removed on account of the government’s exercise of power to block such account.

The High Court also rejected the argument that blocking of user accounts would amount to preventing the originator from posting future content. In this regard, the High Court reasoned that blocking a user account would amount to taking a preventative measure which the government is entitled to exercise. While state authorities/regulators have in the past been conferred with pre-emptive powers, it is unclear whether it is justifiable that under Section 69A, such pre-emptive power be used to issue a direction that is user-specific rather than general in nature.

The High Court’s decision to encompass blocking of user accounts would mean that this is primarily based on the assumption that the originator of the “offending” content would continue to create only unlawful content. Notably, the High Court did acknowledge that, as X Corp contended, any future non-offending content would get blocked as a result of blocking the user account. However, the High Court appears to have accepted this to be a consequence of the legislature’s intent to confer on the government the power to block online content. On this note, it is also not clear whether a user whose account is to be blocked should also be prevented from opening a fresh account on the social media platform in question.

This brings us to the aspect of originator’s rights when it comes to blocking an account or content. The Blocking Rules entail a requirement of the “Designated Officer” appointed by the government to issue the blocking order:

Adopting a literal interpretation of Rule 8 of the Blocking Rules which specifies that the “person or intermediary” be issued a notice, the High Court held that it is not mandatory for the government to notify the originator of the “offending” content as long as the intermediary has been notified.

The judgment does not discuss whether reasonable efforts were made to identify the originator and if so, to what extent. This becomes particularly relevant considering that the Supreme Court in Shreya Singhal v Union of India had held that it is not merely the intermediary who is to be notified, but that the originator must be informed too, if identified. The High Court refers to Shreya Singhal but opined that the disjunctive “or” used in Rule 8, provides the option to the government to identify either the user or the intermediary. Many would agree that this may not be the right approach as far as the user is concerned, particularly because, more often than not, the user is not likely to be notified, as identifying the intermediary will be easier. In this context, clarity is also needed on what constitutes “reasonable efforts” to identify users.

Other key takeaways from the High Court’s judgment are as follows: