'Internet Never Forgets': Karnataka High Court Orally Remarks In X Corp's Plea Resisting Take-Down Orders

'Internet never forgets', the Karnataka High Court orally remarked today while hearing the plea filed by X Corp, formerly Twitter, resisting the various take-down orders issued against it by the Central Government.

The Elon Musk-owned company has also challenged the central government's mandate to onboard the Sahyog portal. It claims that the portal empowers Central government officers to issue blocking orders under Section 79(3)(b) of the Information Technology Act 2000, at their whims and fancies.

"Unlike Section 69A, which requires decision-making through a committee process, Section 79 allows a single officer to issue takedown directions without any institutional safeguards", Senior Advocate KG Raghavan appearing for the US-based company argued.

He referred to Section 501 [Destruction of libellous and other matter] BNSS and compared it with Section 79(3)(b) of the IT Act. "Under the BNSS, it is the Court that decides on the destruction of offsensive material obscene. But here, under Section 79(3)(b), Union officers themselves are taking that decision".

Raghavan further submitted: "Under BNSS, a judicial officer is adjudicating, under 79 (1) (b), a nodal officer is making decisions. Tomorrow court takes a view that a particular post/content is prohibited under law. The power to judge has been entrusted with executive officer, who doesn't even perform quasi judicial function".

"When you want to order destruction of the feed of communication", Raghavan said, "you take this procedure (under 501) where the court orders the destruction…whether it is in print or in electronic media, the content is the same. The content is offensive".

At this point, Justice Nagaprassanna interjected and remarked thus:

"That is the whole problem. If it remains on one's broadcast, I may forget, you may forget, he may forget, but the internet never forgets. It remains there. That is the reason why it is asked to be taken down; if it is unlawful, it is offensive".

Raghavan responded, "But when can it be done is the question? If it is related to books, it also remains in the books. Whether we read or not, it is there".

To this, Justice Nagaprassanna remarked, "But it is localised, on the internet it is global, the reach is beyond imagination".

Raghavan added that "it should not matter" whether the allegedly offensive content is in a book or on the internet, so far as safeguards against blocking are concerned. This prompted Justice Nagaprassanna to observe,

"Impact [between online and offline] is different. When the content is on the internet, it is widely accessible and persistent. The internet never forgets...Things have changed since 1965 when the Ram Manohar Lohia Judgment was delivered. Earlier, what was theft and Robbery is different from now, where money is snatched away online."

Court, however, stated that such queries were only being made to clarify the issues in the matter.

Appearing for the Centre, Solicitor General Tushar Mehta responded to the contention, stating, "Suppose a defamatory post is published against me. The government informs the intermediary that the content is defamatory and asks for its removal under Rule 3(1)(d) [of IT Rules]. If the content is not taken down, and I approach the court, Twitter can claim (before the Court) that it is merely a platform and cannot be held liable. But compare this with a press owner, say, the Times of India. I say that Twitter, or any intermediary, enjoys a special exemption under Section 79(1) of the IT Act. The nature of the medium matters."

Senior Counsel for X then stated that the company does not claim immunity from liability for content posted on its platform. However, he added that it cannot be held directly liable for third-party posts unless due process is followed.

It was contended that there are differing interpretations of what is offensive and what is not, across the country, leading to arbitrariness by government officers. "Can officers of the Union, based on their individual understanding and without any uniform standard, decide whether a particular post is unlawful or not?" Raghavan asked.

He will continue the arguments on July 11.