Government Vs Twitter: Can Big Tech Say No?
Twitter accounts of an investigative news magazine, a member of parliament, and an organisation supporting farmer protests in Delhi were among the handles that suddenly became inaccessible for Indian users on Feb 1. The takedown was in response to the central government’s orders under the Information and Technology Act.
But soon after, some of the accounts were restored. As of Friday, Twitter has again reportedly complied with the government’s orders and over 97% of the accounts flagged have been blocked.
The restoration and blocking of these accounts have raised several critical questions:
The lack of transparency from the government in issuing such orders.
The ability of big tech to refuse compliance citing international laws.
And an intermediary’s liability if it fails to comply with the government’s orders.
The Back And Forth Between Feb. 1 And 12
Over the course of the last 10 days, according to Twitter, it received multiple blocking orders, including two emergency orders from the government that were issued under Section 69A of the Information and Technology Act.
Section 69A of the IT Act allows the government to issue reasoned and written orders to intermediaries or any government agency to block access to any information on cyberspace. The grounds on which such orders can be issued include:
In the interest of sovereignty and integrity of India.
Defence of India, the security of the state.
Friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence.
Twitter says it complied with the directions including the two emergency orders but subsequently restored the accounts in a manner it believed was consistent with the law.
‘’We have not taken any action on accounts that consist of news media entities, journalists, activists, and politicians. To do so, we believe, would violate their fundamental right to free expression under Indian law.’’ - Twitter’s Statement
This attracted a non-compliance notice by the government. Failure to comply with directions under Section 69A by an intermediary can result in jail term of seven years or a fine. However, experts point out that no such action has been taken to date against an intermediary in India.
Meetings between Twitter’s executive and the IT ministry ensued and as per reports, the social media platform has now complied with the orders blocking 97% of the accounts.
The Opaqueness Of 69A Orders
While orders under section 69A have to be reasoned and should, experts say they are seldom made public. The lack of transparency means that users whose accounts have been blocked have little recourse, privacy activists and technology lawyers point out.
In the absence of the actual text of the orders, it becomes difficult to probe their legal fitness, says Apar Gupta, executive director of Internet Freedom Foundation. An order of this nature, he adds, has to be reasoned and made public as per the Supreme Court’s 2015 ruling in section 66A case and more recently, in the J&K 4G ban.
It is worrying that the government has not amended the blocking rules made under Section 69A to reflect the directions of the apex court and give an opportunity to the end-user to present their defense on the curtailment of their rights.Apar Gupta, Internet Freedom Foundation
Can Big Tech Say No?
It is correct that technology and social media firms have to comply with the law of the land but they can also narrow down or challenge orders which may result in unjustly preventing someone’s right of speech, Raman Chima, Asia Pacific Policy Director at Access Now, told BloombergQuint.
Expert say it is absolutely acceptable for a business to refuse to do something which is illegal. If the government feels there is a non-compliance of a legally issued order, it can always approach the courts. But the government cannot become the judge, jury and executioner, says Cheema.
Consistently the UN’s Special Rapporteurs on free speech and expression have emphasised against blind obedience of government orders. Under international human rights law including the international covenant on civil and political rights - which India has signed and ratified—there is an obligation on platforms to push back against excessive orders.Raman Cheema, Asia Policy Director at Access Now
Platforms must cooperate with the government's lawful orders but not at the cost of someone’s right to free speech, he said.
Consequences Of Non-Compliance
The information technology law allows the government to impose a fine or initiate proceedings which may result in imprisonment of the intermediary’s officials. The government has maintained that Indian laws will have to be respected by all who wish to conduct business in India.
On Wednesday this week, the government issued a statement saying its order directed a takedown of tweets and accounts using hashtags such as ‘farmer genocide’ and accounts supported by Khalistan sympathisers and backed by Pakistan.
Spreading misinformation using an incendiary and baseless hashtag referring to ‘farmer genocide’ at a time when such irresponsible content can provoke and inflame the situation is neither journalistic freedom nor freedom of expression as envisaged under Article 19 of the Constitution of India.Government statement On Feb. 10
Since then, Twitter has reportedly complied with most of the government’s orders. For the rest, it’s unclear what the central government might do.
If the government decides to go ahead with any action against Twitter, it would mean an end to the soft glove approach which has been adopted till now for the intermediaries, says Advocate Pavan Duggal. By refusing to comply with parts of the order, Twitter may have assumed an editorial role, he says.
The moment an intermediary starts acting like a judge to determine the veracity, correctness of a governmental order, it loses its statutory exemption from legal liability under the IT Act and is liable for all such third party data.Pavan Duggal, Advocate
If both sides refuse to blink and the case lands in court, it would give much-needed clarity on whether intermediaries have to blindly toe the government’s line or can push back against excessive orders, Duggal adds.
For now, things are at a standstill with stakeholders watching for the central government’s next move.