Centre Attempting To Circumvent Safe Harbour Protection By Resorting To S.79(3)(b)Of IT Act: X Corp Tells Karnataka High Court

X Corp (formerly Twitter) has told the Karnataka High Court on Friday (July 25) that the safe harbour for social media intermediaries under Section 79 of the Information Technology Act is being cicrumvented by the centre due to the allegedly illegal issuance of blocking orders under Section 79(3)(b), without the following the procedures under Section 69A of the IT Act, read with the IT Rules.

Senior Advocate KG Raghavan for the petitioner submitted before Justice M Nagaprassana that they were here to do business, and they will be abiding by the law. It was stated that if the interpretation given by the State on Section 79 is to be taken, then there are thousands of officers in the country who will be able to make a determination of content on their own subjective basis.

"Is it correct to say I will take a soft approach when it is such a serious issue of sovereignty, unity and security? They say the intermediary is only informed and depends on them whether to follow or not. Is there are vacuum? Suppose our interpretation of Section 79 is correct. Sec 69A is always there. What is all this fear psychosis being created? Nothing is going to happen, do not entrench fundamental rights of anybody on flimsy grounds, this is very dangerous attempt to take away rights under Article 14,19," counsel stated.

"This will be disastrous, if the officer is allowed to be the accuser and judge, I lose safe harbour," he added.

It was argued that under section 79, any one of the officers can allege that the information put up on your portal is violating provisions of a statute and block the information.

Counsel said that under section 79, safe harbour is a statutory right and not an exemption granted, which can be taken away by the government.

However, the court intervened by stating that there is a condition hedged to it, that if the section 79 (3) condition is not complied with, the intermediary will lose safe harbour, based on the report of the officer.

Counsel said that section 79 is not a source of power, and the source of power is elsewhere.

"In this country, we have 890 Central statutes, so can the authority say under any one of them say you have done an unlawful act and lost safe harbour. This is an absurd and shocking situation...Court will have to see whether these creeping circumstances are violating the rights. It is unfathomable that these officers are authorised and are going to determine whether it is unlawful being a judge. Can this absurd situation be allowed?" counsel questioned.

Counsel submitted that in the Shreya Singhal case, the Supreme Court upheld S.69A and the 2009 Blocking Rules because the intermediary was applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69-A read with the 2009 Rules.

Counsel questioned how one officer who is authorised will issue blocking, removal orders under Rule 3 (1) (d) in respect of all statutes in the Country.

It was submitted that the respondents use S.79(3)(b) and Rule 3(1)(d) as an empowering provision to circumvent S.69A. Their takedown notices issued under S.79(3)(b) and R.3(1)(d) are based on allegations of threats to “public order” and threat to India's integrity, sovereignty and unity.

"Same grounds are there in Section 69A for issuing a blocking order as are under Rule 3 (1) (d). Then why do you need Section 79? Independently Rule falls foul of Article 14," it was argued.

The matter is next listed on July 29. 

Background

X Corp has moved the High Court, challenging the issuance of blocking orders by the centre based on Section 79(3)(b) of the IT Act, by circumventing the procedure laid down under Section 69A of the IT Act.

It is submitted by X that instead of complying with the procedure laid down under Section 69A, the centre is seeking to achieve its objective of blocking allegedly 'unlawful content' by using Section 79(3)(b), basing the crietrion for blocking on the subjective satisfaction of their officers regarding the 'unlawful' nature of content on the internet.

It has been submitted by the centre that such powers are needed to protect India's sovereignity and unity against threats.