Industry stakeholders invested in digital policies and rights have come out in support of the merits of Elon Musk-owned X Corp platform’s petition that opposed the use of Section 79(3)(b) of the IT Act for taking down content online.
Microblogigng platform X has filed a petition before the Karnataka High Court asking for a declaration that Section 79(3)(b) does not authorise the government to issue information blocking orders. This section dismisses safe harbor protection to an intermediary if the entity fails to take down content flagged by the “appropriate” government agency. The petition also asked the court to restrain the government from taking prejudicial action against X for not registering under the “censorship portal” Sahyog.
X said this portal created by the Indian Cyber Crime Coordination Centre (I4C) allow central and state agencies, local police officers to issue information blocking orders in violation of previous Supreme Court instructions and provisions like Section 69A that does deal with blocking orders.
Prasanth Sugathan Legal Director, SFLC.In agreed that 79 cannot be used as a takedown provision.
“What the Supreme Court says is this provision exempts intermediaries from liabilities. It has to be read with other provisions like 69A that actually allows take down actions. 79(3)(b) cannot be used as provision to take down content by itself,” said Sugathan.
Confidentiality clauses
If X’s demands are met, blanket orders under 79(3)(b) may come down or at least follow procedure, said Sugathan. However he added that it is hard to say this for sure as many orders are issued with confidentiality clauses that restrict the intermediary from sharing the order with others.
“On Sahyog portal, you cannot have mechanisms that are not provided in the rules. Rules say you need to have a compliance officer. You cannot add new mechanisms to this unless it is incorporated in the rules,” said Sugathan.
Similarly, Apar Gupta, Founder of the digital rights group Internet Freedom Foundation (IFF), said there is merit in X’s plea arguing that the Sahyog portal creates a parallel censorship system.
“The mandate for participation in the portal is not required under the due diligence requirement for safe harbor protection. Further, the portal may act as a proxy to overstep the bounds of the existing content website blocking powers considering there is no transparency as to which authorised agencies may be part of system and can submit request for takedown,” said Gupta.
He argued that the demands by the microblogging platform would further strengthen the safe harbor framework. It may be mentioned that the IFF has opposed the idea of the portal even before the petition.
Pranesh Prakash, Principal Consultant at Anekaanta Advisory and Co-Founder of the Centre for Internet and Society, also agreed with X’ stand and said that Section 79(3)(b) is about intermediary liability.
“I have long argued that Section 79 does not provide any powers for the government to block content,” said Prakash.
According to Gangesh Verma, Principal Assocaite for Tech and Policy at Saraf and Partners, the reason the government prefers 79(3)(b) is in response to the cybercrime case. “Late last year in December, the High Court had pulled up the government and asked what they doing with regards to cybercrime. The I4C then came up with the solution that these things need to be coordinated better and faster, and so it created the Sahyog portal. Now, the portal and I4C do not have statutory backing. This is a body that was created through executive action by the Ministry of Home Affairs. So, you will not be able to source the exact power under which I4C has created Sahyog, nor can you say whether you will not be able to find the exact provision,” he said.
