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The Supreme Court on Monday (March 3, 2025) sought the response of the government on a plea challenging Rules empowering it to block content on social media platforms without prior notice or fair hearing to persons who upload them.
A Bench headed by Justice B.R. Gavai issued notice to the Union of India and Ministry of Electronics and Information on a writ petition filed by Software Freedom Law Center, represented by senior advocate Indira Jaising and advocate Paras Nath Singh, challenging provisions of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
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Rules 8 and 9 make it optional for the government to inform the original creator of the online content about the proposed action to block it. In fact, Rule 9 allows the government to block content in cases of “emergency” with hardly a word to the creator of the information.
The petition said Rule 9 is put to arbitrary use as an emergency provision to block user content. Lack of prior notice, a reasoned order, a procedure to address grievances or even an opportunity to be heard leave online content creators in the dark without a legal recourse.
“There could be a mandate on the state to give notice to original creators if they are identifiable,” Justice Gavai remarked.
Ms. Jaising said the right to be put to notice and a fair hearing were intrinsic to the freedom of speech and expression. She recalled in court an episode when senior advocate Sanjay Hegde’s social media account was “taken down”. “For years together it was down,” she submitted.
She said the opacity is worsened by Rule 16 which facilitates a blanket confidentiality regarding blocking requests, complaints and actions taken for blocking information.
Prior notice to the intermediary does not protect the rights of the content creator. The intermediary, though notified about a blocking action, has no obligation to represent the originator or provide a defence on their behalf. Online intermediaries are protected by the ‘safe harbour’ clause under Section 79 (an intermediary shall not be liable for any third party information) of the Information Technology Act.
They have no option but to comply with the government’s blocking action to not jeopardise their operations in the country. Ultimately, the content originator is left out in the cold without a hearing.
Ms. Jaising said the government takes advantage of the language of Rules 8 and 9, which give the designated the authority to issue notice of the proposed blocking action either to the intermediary concerned or the original creator. The notice inevitably goes to the intermediary. Ms. Jaising said the ‘or’ should be replaced with ‘and’ so that both creators and intermediaries get the blocking notice. Rule 16, on the other hand, must simply be struck down as unconstitutional.
“There have been numerous instances of websites, applications, and social media accounts being blocked without providing any opportunity for a hearing or notice to the affected party. Such instances include the blocking of free and open-source software applications like Element, Briar, and VideoLAN, as well as the blocking of social media handles during the farmers’ protests in Delhi NCR, where several political leaders, social activists, and journalists had their social media accounts blocked on the basis of the government’s legal demands,” the petition said.
Published – March 03, 2025 08:20 pm IST