The Centre has issued notice to Twitter after the micro-blogging site restored more than 250 accounts that had been suspended earlier on the government’s ‘legal demand’.

Take this new term “Hashtags Activism”.

What is the news?

• Twitter was asked to block accounts and controversial hashtags that spoke of an impending ‘genocide’ of farmers for allegedly promoting misinformation about the protests, adversely affecting public order.
• Twitter reinstated the accounts and tweets on its own and later refused to go back on the decision, contending that it found no violation of its policy.

Concerns with the directive

• This direction presents a clear breach of fundamental rights but also reveals a complex relationship between the government and large platforms on the understanding of the Constitution of India.
• The specific legal order issued is secret.
• This brings into focus the condition of secrecy that is threshold objection to multiple strands of our fundamental rights.
• It conflicts against the rights of the users who are denied reasons for the censorship.
• Secrecy also undermines the public’s right to receive information, which is a core component of the fundamental freedom to speech and expression.
• This is an anti-democratic practice that results in an unchecked growth of irrational censorship but also leads to speculation that fractures trust.
• The other glaring deficiency is the complete absence of any prior show-cause notice to the actual users of these accounts by the government.
• This is contrary to the principles of natural justice.
• This again goes back to the vagueness and the design faults in the process of how directions under Section 69A are issued.

Are platforms required to comply with legal demands?

• Cooperation between technology services companies and law enforcement agencies is now deemed a vital part of fighting cybercrime and various other crimes that are committed using computer resources.
• These cover hacking, digital impersonation and theft of data.
• The potential of the misuse has led to law enforcement officials constantly seeking to curb the ill-effects of using the medium.
• Therefore, most nations have framed laws mandating cooperation by Internet service providers or web hosting service providers and other intermediaries to cooperate with law and order authorities in certain circumstances.

What does the law in India cover?

• In India, the Information Technology Act, 2000, as amended from time to time, governs all activities related to the use of computer resources.
• It covers all ‘intermediaries’ who play a role in the use of computer resources and electronic records.
• The term ‘intermediaries’ includes providers of telecom service, network service, Internet service and web hosting, besides search engines, online payment and auction sites, online marketplaces and cyber cafes.
• It includes any person who, on behalf of another, “receives, stores or transmits” any electronic record. Social media platforms would fall under this definition.

What are the Centre’s powers, vis-à-vis intermediaries?

• Section 69 of the Act confers on the Central and State governments the power to issue directions “to intercept, monitor or decrypt…any information generated, transmitted, received or stored in any computer resource”.

The grounds on which these powers may be exercised are:

• in the interest of 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

How does the government block websites and networks?

• Section 69A, for similar reasons and grounds, enables the Centre to ask any agency of the government, or any intermediary, to block access.
• Any such request for blocking access must be based on reasons given in writing.
• Procedures and safeguards have been incorporated in the rules framed for the purpose.

Obligations of intermediaries under Indian law

• Intermediaries are required to preserve and retain specified information in a manner and format prescribed by the Centre for a specified duration.
• Contravention of this provision may attract a prison term that may go up to three years, besides a fine.
• When a direction is given for monitoring, the intermediary and any person in charge of a computer resource should extend technical assistance in the form of giving access or securing access to the resource involved.
• Failure to extend such assistance may entail a prison term of up to seven years, besides a fine.
• Failure to comply with a direction to block access to the public on a government’s written request also attracts a prison term of up to seven years, besides a fine.

Is the liability of the intermediary absolute?

• Section 79 of the Act makes it clear that “an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him”.
• This protects intermediaries such as Internet and data service providers and those hosting websites from being made liable for content that users may post or generate.
• However, the exemption from liability does not apply if there is evidence that the intermediary abetted or induced the commission of the unlawful act involved.

Judicial intervention in this regard

• In Shreya Singhal Case (2015), the Supreme Court read down the provision to mean that the intermediaries ought to act only upon receiving actual knowledge that a court order has been passed.
• This was because the court felt that intermediaries such as Google or Facebook may receive millions of requests, and it may not be possible for them to judge which of these were legitimate.
• The role of the intermediaries has been spelt out in separate rules framed for the purpose in 2011.

Legislative efforts

• In 2018, the Centre favoured coming up with fresh updates to the existing rules on intermediaries’ responsibilities, but the draft courted controversy.
• This was because one of the proposed changes was that intermediaries should help identify originators of offensive content.
• This led to misgivings that this could aid privacy violations and online surveillance.
• Also, tech companies that use end-to-end encryption argued that they could not open a backdoor for identifying originators, as it would be a breach of promise to their subscribers.

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