Content checks must not curb free speech

The petition filed by social media platform X, formerly Twitter, in the Karnataka High Court, charging that the government of India is imposing content censorship using Section 79(3) (b) of the Information Technology (IT) Act and by forcing it to join cybercrime portal Sahyog has again brought the issue of content control into focus. The petition has alleged that the Union government has sought to circumvent the safeguards under Section 69A of the IT Act and the protections recognised for internet intermediaries by the Supreme Court in the 2015 Shreya Singhal case. It was filed under Article 226 which gives high courts the power to enforce and protect fundamental rights. It has also sought a declaration from the court that Section 79(3) (b) of the IT Act does not authorise the government to issue information-blocking orders.

The petition is more comprehensive than the one X had filed in 2022 challenging several blocking and takedown orders of the government. It had lost the case then. Section 79(3) (b) says that an intermediary cannot claim safe harbour protection if it fails to remove or disable access on being informed by the government or its agency. X has argued that it sets up an “illegal parallel content-blocking process” and violates the Shreya Singhal judgement which said that content could only be blocked through a competent court order or according to a structured process under Section 69A. It has also claimed that Section 79 is being used to bypass the safeguards of Section 69A and to arbitrarily censor online content. X has sought protection for not onboarding an employee on the Sahyog portal, which the social media platform dubbed a “censorship portal.” The portal was created by the Indian Cyber Crime Coordination Centre
(I4C) to “streamline” Section 79(3) (b) orders. X has said that the law did not allow the creation of Sahyog or created a statutory requirement to appoint a nodal officer for such a portal.

By challenging the many ways in which content control is exercised without following due process, the petition has pointed out how freedom of speech and expression can come under pressure from governments. It is true that social media fosters unchecked freedom and provides a platform for hate speech in multiple forms. That needs regulation but governments use the pretext of public order and security of state, and other reasons to curb free speech. Even the fairness of the laws is sometimes questioned, but arbitrary use, misuse or sidelining of the law evokes stronger questions. Social media companies have their interests to protect, but their users, who are citizens, have important rights at stake.