The central government has strongly responded to the censorship allegations made by Elon Musk social media site X (previously Twitter). In an affidavit submitted before the Karnataka High Court, the government accused X of labeling its Sahyog Portal as a “censorship portal.” The affidavit termed this an “unfortunate and condemnable” label, claiming that the fears expressed by X about censorship are baseless and misleading.
Government’s Response to Censorship Allegations
The affidavit emphasized that by raising concerns about censorship, X is attempting to blur the line between its position as an intermediary and that of a user who posts content on its platform. The Central Government stated:
“It is submitted that by raising a groundless concern of censorship, the petitioner is attempting to conflate its position with that of a user who posts content on its platform, which it is not. It is submitted that the use of the said terminology by a worldwide portal like ‘X’ is unfortunate and condemnable.”
This statement underscores the government’s position that X’s interpretation of the Sahyog portal as a censorship tool is misleading and aimed at securing an unjustified blanket safe harbour protection.
X’s Allegations of Censorship and Lawsuit Against Sahyog Portal
X had taken to the Karnataka High Court challenging the use of the Sahyog portal by the government on grounds that it evades legal protection provided under Section 69A of the Information Technology Act, 2000. X had blamed the portal for allowing the government to censor the content and go unscathed by due process.
X, in their affidavit, stated that the conduct of the government ran against the judicial environment as articulated by the Supreme Court in their historical decision on Shreya Singhal v. Union of India. X also argued that Section 79 of the IT Act gives only safe harbour immunity to intermediaries from liability for third-party material and does not grant the government any jurisdiction to issue orders for removal beyond the scope of Section 69A.
Government Response to Safe Harbour, Censorship, and the Obligations of Intermediaries
The government of India squarely refuted X’s contentions that the safe harbor provision under Section 79 of the IT Act is absolute and reiterated the fact that intermediaries will have to exercise due diligence so as to avail themselves of such immunity.
The affidavit stressed:
“It is submitted that the ostensible purpose of the present petition appears to be the blanket right to claim safe harbor protections without any responsibility on the intermediary themselves. It is submitted that the same is fundamentally flawed and against the basic concept of safe harbor itself.”
The government emphasized that safe harbor is not a constitutional right under Article 19(1)(a) of the Indian Constitution but rather a privilege granted by the IT Act. It further argued that intermediaries like X must meet legal conditions in order to be eligible for protection by the safe harbor.
Besides, the government argued that granting immunity to intermediaries for failing to exercise due care would result in unregulated censorship by online services, where content is arbitrarily removed or retained on business terms. The government argued that this would be against accountability and due process, emphasizing the necessity of requiring intermediaries to obey lawful orders in a bid to prevent abuse of their platform.
Foreign Companies, Censorship and Deficiency of Basic Rights
The Central Government also noted that X, being a foreign company, is not eligible for the basic rights provided under Part III of the Indian Constitution. It clarified that X’s only statutory right is conferred under Section 79 of the IT Act, which does not empower it to take up cases on behalf of its users.
The only statutory right it has is conferred to it under Section 79 of the IT Act 2000, which does not empower it to solicit hosting or defend removal of the information and data of third parties hosted on its platform. It is recommended that the intermediary under the IT Act scheme have no locus or right whatsoever to pursue the case of its users against any orders of the competent authority under Section 79 of the Act or it forfeits the safe harbor defense.
This argument once more relies on stressing that intermediaries such as X cannot invoke user’s interest on their own in their request for removal of content and thereby invalidate their claims to censorship.
Conditional Character of Safe Harbour Protection, Censorship and Intermediary Compliance
Central Government also reiterated the fact that Section 79 safe harbour protection relies on intermediaries being vigilant and adhering to relevant laws.
“It is submitted that the concept of ‘safe harbour’ is intrinsically hedged with responsibilities which are placed on intermediary. It is submitted that therefore, ‘safe harbour’ is always a conditional protection, available only when due diligence is demonstrably exercised by any intermediary.”
The affidavit stressed that the grant of safe harbour is dependent on intermediaries fulfilling their responsibilities under Indian law and cannot be treated as an unqualified right. The government warned that a lack of exercising due diligence would be followed by unregulated censorship by the intermediaries giving them power to selectively remove or maintain content, thus defeating the principles of free speech and openness.
Implications for X, Censorship, and Other Intermediaries
The current legal case between X and the Central Government is a genuine representation of strained relations between transnational technology companies and country-states on issues of regulation, censorship and content moderation. The Karnataka High Court affirming the government stance can go towards redefining the limits of safe harbour protection for Indian intermediaries.
The decision in this case will have far-reaching consequences on the regulatory framework that oversees digital platforms especially in the enforcement that is placed on intermediaries such as X to be held responsible for content on their platforms without recourse to over-censorship that may result from unequal compliance or discriminatory moderation.
Conclusion
The central government has stood firm in its support of its stance on the Sahyog Portal and against the censorship allegations by X. It has made it clear that intermediaries are not automatically entitled to safe harbor under Section 79 of the IT Act and need to prove due diligence in order to continue enjoying such protection. With the events in this case, the Karnataka High Court ruling would serve as a deciding factor in determining the future of intermediary liability and content regulation in India.
About Author
This article has been written by Abhinaya Moses, a committed LLM student of Taxation Laws at Government Law College, Coimbatore. With a hungry legal mind and writing skill, she blends even the most abstract concepts in simple words through content writing effortlessly. She is striving to position herself as a potential tax expert and interesting legal blogger capable of making law interesting.