'Chilling Effect' Not Absolute Shield, Reasonable Restrictions On Free Speech 'Elastic' & Evolve With Tech: Centre To Karnataka HC In X Corp's Plea

The Central government on Friday (July 18) argued before the Karnataka High Court that reasonable restrictions under Article 19(2) of the Constitution on Freedom of Speech and Expression is an "elastic" concept which must evolve with the ever expanding scope of Article 19(1)(a) in today's technologically advanced era.

Solicitor General Tushar Mehta appearing for the Centre added that "chilling effect" on free speech cannot be an all in all solution against reasonable restrictions.

SG was making submissions before Justice M Nagaprassana in a petition filed by X Corp seeking a declaration that Sec 79(3)(b) IT Act does not confer authority to issue information blocking orders and such orders can only be issued after following the procedure under Section 69A of the Act r/w IT Rules.

X had argued that take down orders under Section 79(3)(b) have a chilling effect on its users.

Responding to this, the SG made two prong arguments— one that chilling effect is not a defence to disseminate content that is 'not in the interest of society' and two, that X cannot claim chilling effect on behalf of its users.

"Twitter says they offer a platform where others post and express their opinion. If they are only a notice board then how is their right to Freedom of speech violated. To come out of this argument they say 'Chilling effect'...Their argument is that if I am platform and if someone's post is pulled down under Rule 3 (1) (d), then it would act as a deterrent to those who post. Thus, they are representing those who have the chilling effect," the SG said.

He relied upon Anuradha Bhasin v. Union of India (2020) where a 3-judge bench of the Supreme Court observed that the widening of the “chilling effect doctrine” has always been viewed with judicial scepticism.

"Chilling is not an all in all solution under Article 19 (1) milords...New problems would need new statutory solutions which is the need," the SG thus remarked.

He added that though Article 19(2) does not explicitly mention 'interest of society' as a reasonable restriction, the same assumes significance in current day setting as well as judicial precedents.

In this regard, he referred to Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, (1995) where the Supreme Court observed that the founding fathers while guaranteeing the freedom of speech and expression provided simultaneously that the said right cannot be so exercised as to endanger the interest of the nation or the interest of the society.

"Now it's not only public order, it's also interest of society...the elasticity under Article 19(2)...'In the interest of society' brings within its sweep several things and it will have to be widely construed...Reasonable restriction should be elastic. Why Constitution said 'reasonablene restriction' and not 'restriction' because it can be decided dependent on the menace the Parliament is dealing with. If rights are dynamic, then restrictions also have to be dynamic milords. If rights can expand so has to restrictions with reasonableness...When we say Article 19(1)(a) is expansive then Article 19(2) will also have to go hand in hand...it can't be that they keep on expanding Article 19(1)(a) but Article 19(2) remains static," the SG submitted.

On invocation of Section 79 IT Act

Illustrating on his argument about misuse of technology under the garb of free speech, SG Mehta submitted that if hypothetically an AI video is created of the judge saying something against the nation, it will not fall within the vires of Section 69A but yet, will unquestionably be unlawful. That is where Section 79 comes in.

"Section 69A is not only about taking down but also a penal provision. Courts have developed that my fundamental rights of doing something may come in conflict of other persons fundamental right, so there is always competing Fundamental rights, Article 14, 19, 21. Therefore a jurisprudence is developed for balancing competing fundamental rights to achieve constitutional goals."

Mehta also showed to the Court that X had allowed them to open a fake account in the name of 'Supreme Court of Karnataka'. "Lakhs of lakhs people can view it."

As Senior Advocate KG Raghavan appearing for X objected to this, Justice Nagaprasanna remarked "This is only an illustration, and it will not prejudice." The Judge at this juncture asked the SG if the submission is that creating of such account in intermediary is easy. The SG responded in the affirmative.

He stressed that such fake accounts, deepfake videos infringe upon the Right to Privacy and the Right not to be abused. "These are natural rights. It is 'recognized' under the Constitution, not 'given ' by the Constitution," Mehta submitted.

Safe Harbour

The SG then argued that in order to curb such menace, 'safe harbour' protection to intermediaries cannot be absolute and thus, taken down directives issued under Section 79(3)(b) are an exception to the exception of safe harbour.

"Similar safe harbour provisions exception to exception exist in all jurisdictions of world. This is the only social media intermediary (Xcorp) which has a problem and is before the court. X corp in some other jurisdictions have been fined, censured etc...I have shown that there are certain intermediaries which are not complying, and every country is grappling. Any deviation to exception to safe harbour, taking care, due diligence etc is viewed serious now by all jurisdictions...If you are informed and you do not follow guidelines then 'Safe harbour' will be lost," SG submitted.

Challenge to Rule 3 (1)(d)

SG pointed that X had also challenged Rule 3(1)(d) of the IT Rules 2021 which again provides that an intermediary upon receiving a court order or on being notified by the government shall not host, store or publish any unlawful information in the interests of sovereignty and integrity of India, security of the State, public order, decency or morality, etc.

He however submitted that the Rule is a mere 'caution' and has no penal consequences.

"First they challenged Sec 79 IT Act but lost. Now even the guidelines framed for the purposes of due diligence is sought to be set aside on the ground of chilling effect...What is under challenge is Rule 3 (1) (d)? Last part say you are cautioned for unlawful act, not punished. The remedy is to not challenge the rule," Mehta argued.

He continued, "I am giving an illustration. Suppose in Copyright or Trademark Act, some X users published my registered trademark. If I caution him (X) that this is prohibited under law, can they say we will challenge the law? You cannot shoot the messenger. I pose the question to me that how informing them becomes unconstitutional? Rule 3 (1) (d) is only for that."

Sahyog Portal

SG then turned to the edifice of X's challenge, Centre's insistence to onboard its 'Sahyog portal', developed to bring together government agencies and social media intermediaries on one platform for immediate action against alleged unlawful online information.

Mehta submitted that the Portal enables an authorised officer of the government to send notice to intermediary regarding any unlawful content.

Raghavan at this juncture, referring to the incident of Railways asking X to disable access to a video/picture of a woman driving her car on railway tracks in Hyderabad, asked if an authorised officer includes a Railway Engineer?

"Yes, he is an authorised authority. He is an engineer. There is nothing to laugh about. Rule 3(1)(d) situation arise in consumer affairs, etc. Thus some authority is to be appointed," the SG responded.

He added that the portal was brought to enable seamless communication between the authorised officers and the intermediaries.

"Even if my designated authority is authorised, I had no means what is their (Intermediaries) compliance. So they (designated authority) came to us (Centre) and sought creating a portal. So we will know an authorised person has issued a notice. Sahyog is an administrative procedure and in interest of intermediary..It is for administrative connivence, and ease of doing business, what objection can they have," Mehta argued.

He also questioned X's locus to maintain the writ petition by claiming rights under Article 19(1)(a), a right held to be unavailable to foreign entities in India.

The matter is now listed on July 25.