In a petition before the Karnataka High Court, X (East Twitter) The validity of the Sahia portal of India has been challenged – a central digital repository that tells Social media Companies that they block the space. This, the company argues, is an attempt to the already approved side-step procedures by the Supreme Court under Section 69A of the Information Technology Act, 2000 (IT Act).
Some will disagree that some Online material (Child pornography, trafficking, etc.) is completely unacceptable that law enforcement must actively track it and immediately remove all scars of existence. At the same time, there are other materials that can be removed for some conceptual, personal or other low exploratory reasons.
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This material should not be taken down until it aligns with one of the restrictions on freedom of speech – India’s sovereignty and integrity, state security, public order, etc. – This is determined under Article 19 (2) of the Indian Constitution.
This is central tension in India’s content-medium debate. While we must empower law enforcement agencies to reduce harmful materials, we must ensure that they do not misuse this power and prevent our fundamental rights for speech and expression.
It would be good if the government may be trusted to take constitutionally alignment approach for material moderation. Unfortunately, this has not been our experience. In their haste to prevent harmful materials from spreading, law enforcement agencies show unusual hurry to ride some kind of riding on fundamental rights, often adopt detailed interpretations of restrictions under Article 19 (2) so that they can be uncomfortable even from anything far away.
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It was to legalize such comprehensive executive action that Section 66A was introduced in the IT Act, in which the ‘aggressive messages’ to prosecute those who send the ‘aggressive messages’ online. It was challenged before the Supreme Court Shreya Singhal vs Union of India The case and the right to freedom of speech were killed as a violation of the right to freedom. Shreya Singhal also questioned the constitutional validity of Section 69A, which allowed the government to block access to online information, alleging that the words used in that section were so broad that the government could restrict the biggest scale speech in the field.
At this, the Supreme Court expressed disagreement, arguing that Section 69A reflected the restrictions set in Article 19 (2) of the Constitution and thus, reiterated only the existing constitutional exceptions. Since blocked orders were to be done in writing, they could be challenged in court and there was a detailed process that was to follow all blocked requests. The court also rested from the fact that the concerned rules had formed a review committee which was found every two months to ensure that the blocked orders issued were in accordance with the requirements of the IT Act.
The latest constitutional challenge is due to the fact that the Government of India has taken to rely on Section 79 to block online content.
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The basic objective of this section was to protect online middlemen such as X being responsible for those materials that users post on their platforms. This ‘safe harbor’ exemption protects companies that prevent users-generated material from filing suit for the materials that they have no control, but are available only for them if they rapidly carry all the materials down that the government informs them to remove them. The situation is that the government has started exploiting the material to implement and for which a collaboration portal was created.
Online platforms receive a takedown notice from all types of government officials – so much that it is almost impossible for them to find out if any request is real.
I personally have seen the requests that are coming from police inspectors in remote corners of the country, but they have been sent from normal email accounts that cannot be detected by an identified officer or department. Sahia Portal is an attempt to address these ambiguities. A central digital repository consisting of a certain list of all sites notified by the government, which reduces the scope of confusion on authenticity.
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This is an important benefit. If middlemen only have to block sites listed on the portal, they can ignore hundreds of random requests currently received. In addition, it is very easy for free-speaking activists to assess the constitutional validity of blocked orders made by the government in each such example with all the sites that have been informed to be listed at the same place.
A portal can be only a good thing for transparency around the tech-down.
The problem is that neither the cooperation portal nor Section 79 has any security measures that were built in Section 69A, which allowed the Supreme Court to maintain its constitutional validity. Unless the websites that are not to be blocked, they are not informed on the Sehog portal according to a procedure, which complies with Article 19 (2) sanctions, it will probably be held unconstitutional. What is more, all such notices should also be subject to review by the same review committee who currently oversee the takedown under Section 69A of the IT Act.
The Supreme Court has already told us how the material should be taken down. The government only needs to comply.
The author is a partner in Tillgal and the author of ‘The Third Way: India’s Revolutionary Approach to Data Governance’. His X handle is @matthan.