There can’t be general blocking orders: Twitter tells Karnataka HC

Twitter argued before the Karnataka High Court on Monday that the Central government was not empowered to issue general orders calling for the blocking of social media accounts.

Justice Krishna S Dixit was told that a blocking order could only be issued in a situation where the nature of the content was in line with the grounds laid down under Section 69A of the Information Technology Act.

“There can’t be a general blocking order unless the nature of the content is in violation of grounds under 69A. Unless these six grounds are there, you cannot make a blocking order,” contended Senior Advocate Arvind Datar, who appeared for Twitter.

The Court was hearing a plea against ten blocking orders issued by the Central government to Twitter between February 2021 and February 2022.

On the previous date of hearing in the case, Justice Dixit had sought a comparative analysis of how other jurisdictions across the world had dealt with similar issues from the petitioners.

Responding to this query, Datar filed a compilation before the Court presenting a comparative study of four jurisdictions: the United States of America, the United Kingdom, the European Union and Australia.

He submitted that in the USA, there was complete freedom of speech as a result of the First Amendment to the Constitution, which guarantees freedoms concerning religion, expression, assembly as well as the right to petition.

In Australia, the senior counsel said, the legislation was more complicated wherein an e-safety commissioner was appointed to deal with the issues.

To this, Justice Dixit pointed out that the commissioner was not bound by procedural fairness.

Datar informed the Court in response that the commissioner’s decision was subject to judicial review and was limited to situations where there was abhorrent, violent conduct by users. He added that Twitter, even in India, itself takes down abhorrent and violent content.

“In any civilised country…if content in abhorrent…it is taken down.”

Further, Datar pointed out that in Australia, the time limit placed on blocking orders was of three months, whereas there was no such time limit in India.

He also strongly argued against the direction that Twitter could not communicate the orders to the users.

“A direction in the orders saying I will not communicate this to the user is completely contrary to law.”

Finally, Justice Dixit was told that all jurisdictions recognised that social media intermediaries were also aggrieved persons in cases where blocking orders were issued.

Senior Advocate Ashok Haranahalli, also appearing for Twitter, argued that the practice of not issuing notice to the users also affected the rights of the intermediary.

“Question of confidentiality does not arise between authority and intermediary,” he said.

It was his stand that the rights of the users under Article 19 were infringed by blocking their accounts without notice. It was submitted that the reasons should be disclosed to the aggrieved.

Further, he submitted that the entire account could not be blocked and only the specific offending information ought to be the subject of blocking orders.

“Blocking of an account is an extreme measure…if someone is a repeat offender…but not in every case you go on blocking accounts. The doctrine of proportionality will also apply,” he added.

Senior Advocate Aditya Sondhi, at the end of the hearing, mentioned an impleadment application on behalf of Senior Advocate Sanjay Hegde, whose account was suspended by Twitter. Sondhi stated that the parties were relying on the pleadings in his case before the Delhi High Court.

“The Union has extensively referred to the pleadings in the case where I am the petitioner…Twitter’s position before the two courts is diametrically opposite.”

The Court, however, rejected this application, calling the ground for impleadment “feeble”. Bar and Bench