Karnataka HC Reserves Verdict In X Corp's Plea Seeking Declaration That Govt Officers Can't Issue Blocking Orders U/S 79(3)(b) IT Act

The Karnataka High Court has reserved orders in a plea filed by X Corp seeking a declaration that Section 79(3)(b) of the 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.

Senior Advocate Raghavan representing the social media company submitted before a bench of Justice Nagaprassana, that compelling social media intermediaries to scrutinise users' content and take down the same if found 'unlawful' under Section 79(3)(b) of the Information Technology Act, goes against the Supreme Court's directions in the case of Shreya Singhal.

"The intermediary, which earns out of this business, is required to take a business decision whether to accede to the request of the litigant [whose right is taken away under Section 79(1)] or depending upon the facts of the case, to take stand that the material posted/uploaded is not proscribed and it would defend the legal proceedings, if initiated. However, this directly contradicts Shreya Singhal," he said.

It was submitted that the Government never urged Section 79 as an empowering section in Shreya Singhal's case, and thus, an exemption provision could not become a source of power.

Senior Counsel for X submitted that Section 79 belongs to Chapter XII of the Act, in which intermediaries are exempt from liability if they fulfil the conditions of the section. The only two caveats to be followed are enumeration in Section 69A and Article 19.

It was submitted that in the Rules of 2019, Rule 3 (1) (d) was introduced to get over what the SC said should not be done, in making intermediaries decide on the validity of content, in Shreya Singha's case. Instead of correcting the mistake, they have tried to circumvent what SC said, counsel submitted.

"Safe harbour is dependent upon a Preceding Order, either (i) a court order, (ii) an order under S.69A, or (iii) an order under a statute that specifically empowers information blocking. The words unlawful act in S.79(3)(b) must be read as referring only to those three circumstances," it was argued.

"Respondents' interpretation of S.79(3)(b) compels an intermediary to apply “its own mind to whether information should or should not be blocked” which is contrary to Shreya Singhal. One of the reasons why SC said 69A is good because applying your mind is not there," counsel added.

It was stated that the only way in which Section 79 can apply is when there is an order under Section 69A, since Section 79 itself is not a source. 

It was submitted that the Supreme Court in Anuradha Bhasin's case independently reaffirmed the same principle laid down in Shreya Singhal that the internet's “wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. Counsel argued that the extent of restriction would be the same regardless of the medium of the information.

It was submitted that even though the centre, in the case of Kaushal Kishor v. Union of India (2023) had the opportunity to argue that Shreya Singhal was per incuriam before a five-judge bench of the Supreme Court, they chose not to do so, instead relying on it in their written statement.

Counsel added that Section 79 (3) is a proviso to Section 79 (1) and that it cannot control or override the main provision of Section 79.

It was stated that the respondents' interpretation of S.79(3)(b) is contrary to the plain reading of S.79(3)(b). Their interpretation can only be sustained by adding words to S.79(3)(b), which is impermissible.

It was argued that the principles of contemporanea expositio prevent the Respondents from interpreting S.79(3)(b) differently with the passage of time.

Counsel submitted that it was fallacious to say that Section 79 was less intrusive compared and distinct to Section 69A. "If legislature did not make difference, then rule making authority cannot choose," it was stated.

"Let us take a situation where one officer says I will use Section 79...another officer thinks he should go under Section 69A...Kindly see the situation that arises then...Can Section 69A be overridden by an officer sitting somewhere? Harmonious construction of Section 69A with Shreya Singhal is required...To now say that Section 79 is a source of power will create chaos. Even when there is a grave urgency, you can take recourse to Section 69A as per Rule 9," counsel argued.

"Sahyog portal is there only because of Section 79 (3) (b). If I am right that Rule 3 (1) (d) must go, then Sahyog portal also should go," he said.

It was submitted that if the IT Act wanted to create a portal, then it would have and that if the legislature wanted to create the power to create a portal, they would have expressly put it in the Act. With respect to Section 79 (3) (b), there is no provision to create a portal, counsel said.

Counsel appearing for Digipub submitted that Shreya Singhal had been well considered in the past and that any restriction on media houses have been found to be scuttling rights.

ASG Arvind Kamath, appearing for the union, submitted that he would be filing additional notes. Accordingly, the court reserved the matter for orders.