Social media is aflame after several social media accounts across both Facebook and Twitter -- almost all of which are either satirical or critical of the government and the ruling party -- have been barred using Section 69A, a provision of the Information Technology Act. Section 69A of the IT Act, gives the Government of India the power to issue directions “to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource on grounds of threats to the sovereignty or integrity of India, defence of India, the security of the state, friendly relations with foreign states, public order, or for preventing incitement to the commission of any cognizable offence relating to these or for investigating any offence.
While the wording of the provision in the Act may seem reasonable, in practice it is anything but. The provision of the Act is being used almost exclusively to crack down not just on dissent but also on unflattering portrayals of those in government and the ruling party. What’s worse, there’s almost no legal recourse for those affected by such take-down orders.
No prior notice is issued to those whose content is being ordered to be taken down, and no opportunity to be heard is offered. In addition, while the government of India is, in theory, expected to issue such takedown orders in writing, the user is almost never shown these orders, and even if they are, they are worded vaguely, with generic reasons offered, and the scope to appeal such orders is limited.
But the issue is not limited to Section 69A of the IT Act. There’s now section 79(3)(b) of the IT Act and the Sahyog Portal, which directly threatens social media intermediaries to remove ‘unlawful content’ or content that violates the reasonable restrictions introduced to Article 19(2) of the Constitution. This provision allows the government and a whole range of authorities to directly issue orders to the social media intermediaries to take down content, in effect making it a tool for censorship. If social media intermediaries refuse to comply, they stand to lose their status as intermediaries and could be held personally liable for the content that they are hosting.
As a result, today we have a situation where the government has been indiscriminately issuing takedown orders to companies, including Meta (Facebook) and Twitter (X), to remove content immediately. This week, an unflattering video that satirised the Prime Minister’s interactions with international leaders was ordered to be taken down by the Government of India. How the video could even remotely be considered as ‘unlawful’ is a genuine headscratcher. On the contrary, however, the takedown notice prompted the video to go viral on other platforms. But this video wasn’t the only one. Hugely popular satirical accounts have been withheld in India, and users and influencers have indiscriminately had their reach curtailed on account of such orders.
If it looks like censorship and acts like censorship, swims like censorship and quacks like censorship, then it definitely must be censorship. This comes at a time when the Government of India and the Prime Minister in general have seen his approval ratings fall to an all-time low on account of badly miscalculating India’s foreign policy in the run-up to and in response to the US-Israel attack on Iran. The Government of India must not lose sight of the fact that freedom of expression is a constitutionally guaranteed right and it cannot give itself the powers to decide what is ‘lawful’ and what is unlawful. It is only a court of law or an independent institution duly constituted that can decide that. Anything short of that will mean censorship unrestrained.
