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X Corp. (X, formerly known as Twitter) v/s Union of India - A

deterrent for intermediaries in India?
JSA

India August 3 2023

Background.

Twitter being arguably aggrieved by several blocking orders issued by the Ministry of Electronics and
Information Technology (MeitY), India blocking Twitter user’s accounts that Tweeted about India’s
effort to manage the COVID-19 pandemic and farmers’ protests, challenged the validity of these
blocking orders in a writ petition it filed against the Union of India before the Hon’ble Karnataka High
Court (“Court”).
The X Corp. v/s Union of India underlines the intriguing crossroads of free speech, intermediary safe
harbour, and national sovereignty in India.
Twitter’s contentions.

Twitter’s main contentions were:

1. The orders did not comply with the provisions of Section 69A of the Information Technology Act,
2000 (“IT Act”) and the Information Technology (Procedure and Safeguards for Blocking for
Access of Information by Public) Rules, 2009 (“IT Blocking Rules”) - which requires the
Government of India to provide reasons for blocking in writing before issuing a blocking order to
an intermediary, and to issue a notice to the individual who generated such information being
considered for blocking.
2. Twitter was not offered a hearing before issuing the blocking orders - a violation of natural
justice.
3. Twitter contended that the Government only had the power to block specific tweets and not the
entire accounts of its users.
4. The blocking orders violated Articles 14, 19, and 21 of the Indian Constitution, which ensure
rights such as equality, freedom of speech, and the right to life.
In the context of the above objections raised by Twitter, it is relevant to note that the IT Act and the
rules therein grant the Government of India wide powers to intercept, monitor, decrypt and block
information in cyberspace. Under section 69A of the IT Act and the IT Blocking Rules, it has extensive
powers to issue directions for blocking public access to any information.
Questions considered and addressed by the Court.
While addressing Twitter’s contentions as detailed above, the Court considered and opined upon the
following questions of law:
Whether Twitter being a foreign entity, can invoke the writ jurisdiction of the Court;
The power and extent of the IT Act and the IT Blocking Rules, and whether these allowed the
Government of India the right to block entire user accounts or only specific tweets and whether
the blocking orders were issued in violation of the doctrine of proportionality;
Whether (i) the non-communication of the reasons for issuing such blocking orders rendered
them void; (ii) whether the blocking orders are valid since they have not been issued purely
considering the objectionable content of the respective Tweets; and (iii) whether issuance of
notices to the user of Twitter accounts, i.e., originators of information, under Rule 8(1) of the IT
Blocking Rules is mandatory; and
Whether the conduct of Twitter, i.e., its non-compliance with the blocking orders, disentitles it
from receiving any discretionary relief by the Court and makes it liable for the levy of a fine.
Court’s views

Twitter’s ability to file the writ petition. the Court referring to the ruling in the case of K.S.
Puttaswamy Vs. Union of India, where it was observed that the rights guaranteed under Articles
14 and 21 are not confined to citizens but available even to non-citizens, aliens, or other
incorporated bodies and upon interpreting wordings of Article 226, allowed Twitter to invoke the
writ jurisdiction of the Court for the redressal of its arguable grievances.
Validity of the blocking orders. The Court upheld the validity of the blocking orders issued by the
Government of India.
1. The Court, regarding the competence of the Government of India to direct blocking of user
accounts in their entirety under Section 69A of the IT Act, held that if the provisions of Section
69A (1) are literally construed, as suggested by Twitter, it will fail to effectuate the spirit and
larger intent of the Parliament. It further held that the Government of India can take all
preventive measures in anticipation of the danger, thereby allowing it to issue directions for
blocking anticipated information that may disseminate from the respective Twitter accounts.
The Court held that no restrictions could be read into the Government of India’s powers under
Section 69A and that a blocking order need not be tweet specific but may extend to user
accounts.
2. As regards the blocking orders due to non-communication of reasons for blocking the Twitter
accounts, the Court held that the impugned blocking orders are speaking orders, i.e., the
orders speak for themselves, and there is a thick nexus between the orders and reasons
assigned for their issuance and are founded on solid footings of law, facts and evidentiary
material. It also noted that the reasons for the issuance of blocking orders were discussed
with Twitter in the committee meetings, which were duly conducted when Twitter initially
challenged the impugned orders.
Non-issuance of notice to Twitter users. While discussing the failure of the Government of India
to issue a notice under Rule 8 (1) of the IT Blocking Rules to the users whose accounts were
ordered to be blocked. The Court stated that non-issuance of notice is justified on the finding
that the objectionable contents the Twitter users posted were anti-India and seditious. It further
held that those contents were intended to discredit and destabilize India and jeopardize national
security on communal lines, making them objectionable. As to the part of not issuing the notice,
the Court held that “In a way, such users are anti-India campaigners. It is not desirable to issue
 notice to such users about the proposed action.” The Court held that it is of the considered
opinion that notice to users of Twitter accounts in terms of Rule 8(1) of the IT Blocking Rules is
not mandatory and that, in any event, the absence of such notice does not avail to the
intermediary as a ground for assailing the blocking orders.
Principle of proportionality. The Court referred to the case of Anuradha Bhasin Vs. Union of India
and held that the doctrine of proportionality was employed while adjudging the reasonableness
of restrictive action in the light of the constitutional guarantee of speech and expression and
liberty and privacy of persons and not the juristic entity of a foreign country like Twitter. In view
of the above, the Court considers that the impugned orders blocking the Tweets and the Twitter
accounts for an indefinite period are unassailable on the doctrine of proportionality.
Twitter’s entitlement to receive any relief. While dealing with the issue of whether the conduct of
Twitter disentitles it to the grant of any relief, the Court noted that some of the blocking orders
made issued in 2021 remained noncompliant for more than a year by Twitter. It also emphasised
on the tactical approach undertaken by Twitter to delay compliance, which shows its intent to
remain non-compliant with Indian law. Given the above, the Court considered the opinion that the
petition is hit by delay, laches, and culpable conduct of Twitter. Therefore, no relief can be
granted in the equitable jurisdiction constitutionally vested under Articles 226 and 227 of the
Constitution of India.
Penalty. The Court finally dismissed Twitter's petition and levied a fine of INR 50,00,000 (Rupees
Fifty Lakhs) (payable to the Karnataka State Legal Services Authority, Bengaluru, within 45 days)
on Twitter, and a daily fine of INR 5,000 (Rupees Five Lakhs) for any delay in payment.
This case underlines the intriguing crossroads of free speech, intermediary safe harbour, data privacy,
and national sovereignty and will be remembered as a crucial determinant of the relationship between
intermediaries and the Government in India and a deterrent for social media companies in India. In
conclusion, any violations or non-compliance with the orders of the Government of India in relation to
blocking public access to any information ousts the intermediaries in India from its safe harbour under
Section 79 of the IT Act.
Recent news reports indicate that Twitter has challenged the decision of the Court to a larger bench as
it is of the opinion that the Court’s interpretation of Section 69A (1) is incorrect and is violative of the
Supreme Court’s judgement in Shreya Singhal v/s Union of India. Further, it is also of the opinion that
MeitY has failed to comply with Rule 14 of the IT Blocking Rules, which requires a review committee to
assess whether the directions issued under these rules are in accordance with the provision of Section
69A (1).

JSA - Gerald Manoharan and Manas Ingle

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