DigiPub Moves Karnataka High Court Supporting X Corp's Plea Against Take Down Orders, Says 92 Media Houses 'At Mercy' Of Centre

While opposing the Centre's content takedown directives, DigiPub News India Foundation has moved the Karnataka High Court on Friday (July 11) asserting that 92 media houses which are members of the foundation "putting out responsible reporting", are now at the mercy of an officer issuing take down orders. 

The foundation has moved the high court seeking intervention in X Corp's plea before the high court.

Appearing for the foundation–which is a collective of media organisations aiming to represent, amplify and evolve best practices that are independent and upholds the highest standards of journalism–senior advocate Aditya Sondhi submitted before Justice M Nagaprasanna:

"A judicial determination of an unlawful act by a duly constituted court of law on the one hand and a cyclostyle form with the hands of the officer to fill in a couple of blanks here and there and direct taking down, directly infringes Article 19(1)(a). I'm before your lordships as a conglomerate of responsible media houses. There can be no demur of the very grievous posts that some times take place. Children related and women related...We are media houses. Whether decency or morality is there in the act or not I'm really not here to argue. Extreme examples do not make the law. 92 media houses putting out responsible reporting are at the mercy of an officer issuing a cyclostyle order".

 Media/online platforms are directly affected as they create content

Arguing that the foundation was set up to agitate "our rights qua free speech", he said that the members were platforms that provide cross section of news and reportage online, adding that the party which is directly affected by such blocking orders is actually them. 

"X is a platform or intermediary. X per se does not create content. We do, take down orders will affect us directly.The fact that the originator of content has a right, a locus standi, I may say has been recognised by Supreme Court in Shreya Singhal case," he said.

He further said that Section 79 IT Act is an exemption adding that it begins with the word exemption. Section 79 of the IT Act exempts an intermediary from liability for any information, data or communication link made by a third party. However, Section 79(3)(b) provides that upon receiving actual knowledge or on being notified by the appropriate Government that any information is being used to commit the unlawful act, the intermediary would be liable if it fails to expeditiously remove access to such information.

Govt can't say that since online is standalone it can do as it wishes

"The reason I stress this because exemption is to be narrowly/strictly interpreted. If this is really an exemption it cannot become an empowering provision for such far reaching...," he said.

"Media is media. This nuance of offline versus online is well placed as has been observed. But that said this is not an omnibus license for government to say that online is standalone we can do what we wish," Sondhi emphasized. 

Referring to 2009 Blocking rules he gave details of the procedure to be followed to issue blocking orders.

He thereafter said, "The news media channels are not included; the officer just issues an order to the intermediary and chapter is closed. Originator of content etc is not included (heard)".

He further said that action should not be taken in the manner provided under Rule 3 (1) (d), emphasizing that rule cannot transgress the Act and it has to yield to the section.

For context Rule 3(1)(d) of 2021 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules provides that an intermediary upon receiving an order by a court or being notified by the Appropriate 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.

On the issue of safe harbour for intermediaries Sondhi said:

"Safe harbour is not simplicity an insulation but is recognition of free speech right. An officer not palatable to his masters or other reasons sits in his office and says take down that is the chilling effect with the creator kept out milords. Absence of natural justice mechanism in the impugned rules makes it suspect...The absence of all the steps like post decision hearing etc, does it allow the rule to pass the muster of Article 14".

As per safe harbour concept, intermediaries are granted immunity from liability of third parties. Section 79(1) of the Act states that notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

He further said that the 2021 Rules are not threadbare and are almost enabling as it uses the word unlawful information as it is understood by the officer. 

No access to Sahyog portal

On Sahyog portal he said that content creators have no access to it and they are in the dark. For context, 'Sahyog' Portal has been developed to automate the process of sending take down notices under Section 79(3)(b) IT Act to intermediaries by the appropriate government or its agency, to facilitate the removal or disabling of access to any information, data or communication link being used to commit an unlawful act.

When the court asked if the portal is working the Additional Solicitor General appearing in the matter said that except X Corp every other intermediary is on board.

S. 79(3)(b) leaves determination of unlawfulness to agencies

Earlier today Senior Advocate KG Raghavan, representing X Corp, submitted that Supreme Court in Shreya Singhal had upheld 69A IT because it has safeguards.X's plea seeks protection from any coercive action against the company, its representatives or employees, for not joining the censorship portal 'Sahyog', till the final adjudication of its petition.

"Shreya Singhal also says takedown order is also limited to certain circumstances that is why 69A was upheld. Now contrast this 79 for a minute. There is nothing in 79(3)(b) which brings within it like Section 69A the restrictions envisaged in Article 19. While under Section 69A there is a unified structure for determining which info should be taken down or blocked in so far as 79(3)(b) is concerned this is disbursed. That is the biggest problem. 79(3)(b) uses the word unlawful. Unlawfulness will be determined by multitude agencies," he said. 

The court asked, "Are unlawful acts not enumerated already under various Acts. Officer only determines whether the act comes is unlawful". 

Raghavan said that Unlawful Act is dependent on various factors such as interpretation, application and whether information is being used for an unlawful act, adding that an unlawful acts needs to be determined.

Take down orders based on individual perception

On judicial function being carried out by officers he said, "What is being done now is your are creating 1000 administrative authorities doing a judicial function. They ascertain what is unlawful, interpret law, apply the facts, to form a conclusion that info is used to do an unlawful act; this is totally a judicial function. It should be regulated in a manner known to law". 

He further argued that Section 79(3)(b) is in the nature of execution proceedings, adding that Section 79(3) was only introduced to take away safe haven protection of intermediaries, having a chilling effect. He thus submitted that Section 79(3)(b) cant be standalone provision and has to "go along with Section 69A". 

Raghavan said that under IT Rules 2021 there are various officers mentioned therein who can issue take down orders.

Giving examples of state nodal officers in Delhi who can issue such orders, he said, "Anyone now can say take it down…Officer of the Metro will look at every law in country and say what is the unlawful act is done…Metro officer will now be authorised to come to a conclusion in respect of any enactment in country. Virtually what you are doing is that all these 1000s of officers will say 'I will protect anything which affects my department; if a comment is made that Indian metro isn't running on time in Delhi, because it sends a wrong signal, so take it down'" 

The court asked if Raghavan was saying that take down orders are based on an individual perception. To which Raghavan said:

"Yes. In facts of individual perception they made a collective decision--issuing notice etc., under Section 69A but nothing is there under Section 79 (3). Whether unlawful act is there or not individual perception of officer and thus arbitrary and power is exercised in an opaque manner. Tampering with a valuable right is being done. I am only saying that it concerns chilling effect on the flow of information". 

He said that the petitioner has said in its prayer that interpret section 79 in context of Section 69A. 

"In so far as petitioner is concerned this is not an eccentric argument, we are very responsible it is a moderate platform, we have terms of agreement and user agreement, when we receive a complaint, we respond," he said. 

To this the court orally remarked, "But in Proton mail the offensive mails were not take down". Advocate Manu Kulkarni who appeared in this case said that the content in question had been taken down.

"We are human beings first thus there can be no chilling effect," Raghavan said. To this the court remarked, "Human being is human being born with self-respect and anything which affects it he has right to defend it". 

Raghavan further argued:

"We cannot ill-treat even animals. We are dealing with polity and polity has to maintain quality and not allow polity to run in the name of morality. Otherwise it would be an unruly horse". 

On Sahyog portal Raghavn said that its constitution is not sanction by statute or rule. On the court's query Raghavan said the job of the portal is to ensure implementation of Section 79. 

"Is there a notification constituting the portal," the court asked to which Raghavan said that no letter was issued.

He further added, "If Section 79 does not contemplate a portal I am on the ground of occupied field.Architecture of law making in this country has said if portal is require it is to be under a statute".

Case Title: X CORP AND Union of India & Others

Case No: WP 7405/2025

(Compiled by Malavika Prasad)