1 day Ago By Kamya Pandey
Section 69A and Section 79(3)(b) of the Information Technology Act, 2000 (IT Act, 2000), operate in “distinct domains for distinct purposes with distinct consequences” the government argues in its submission to the Karnataka High Court. While the former has penal consequences, the latter is a mere safe harbour provision. In a written submission reviewed by MediaNama, the government suggests that X is, perhaps purposefully trying to misdirect the court by portraying that government agencies are issuing blocking orders under Section 79.
“The Section 79 regime does not envisage any ‘blocking orders’ and merely issues notices informing intermediaries of their due diligence obligations,” the Government explains. This comes as a response to X’s petition in the Karnataka High Court. The petition challenged the Government’s powers to issue blocking orders under Section 79(3)(b) of the IT Act, 2000.
It adds that X conflated the two sections to create a straw man for a self-serving purpose: to seek safe harbour protection without any due diligence. This is “fundamentally flawed and against the basic concept of safe harbor itself,” the Government explains. X’s petition included a copy of a template blocking order that the Ministry of Electronics and Information Technology (MeitY) sent to all Central and State government agencies.
The Government argues that this was not a “template blocking order” but rather a sample of content removal and takedown notices. “Neither the MeitY’s office memorandum dated 31/03/2023 nor any subsequent notifications issued by appropriate governments use the term ‘blocking order’,” it adds. Safe harbour is not an absolute right:Throughout its petition, X assumes that safe harbour is a “necessary and unconditionally enforceable right”, the Government’s response states.
“In-built in Section 79 and the concept of safe harbour is the notice seeking removal or disabling access,” it says. Further, it adds that safe harbour is conditional across jurisdictions worldwide, and platforms typically have to meet certain criteria to qualify for this protection. Limitations on safe harbour are necessary to balance the competing legal rights and interests.
X does not challenge the authority of Section 79(3)(b):The Government holds that X did not challenge the authority of Section 79(3)(b) of the IT Act in its petition. The fact that the Government can send a notification to a platform to take down specific pieces of unlawful content has been mentioned in the sub-section in question, and in fact, the Supreme Court of India has validated this stance in its judgment in the Shreya Singhal case in 2015. The Government suggests that if X did not want to challenge this requirement, it should have challenged the provisions of the IT Act, which it has failed to do with its current petition.
X SilenT on obligations under IT Rules:“The petitioner, in his entire petition, is conveniently silent about the intermediaries’ obligations which are enumerated in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 specifically Rule 3(1)(d)” the Government points out. Rule 3 of IT Rules deals with the liabilities for intermediaries (including social media platforms). Part 1 (d) of Rule 3 says that once the government or a court informs a platform about unlawful content on its service, it should no longer host said content.
The Government explains that one has to read Section 79(3)(b) of the IT Act in conjunction with IT Rule 3(1)(d) for a complete understanding of the provision. It adds that if the Government informs a platform about unlawful content and the platform wants safe harbour with regards to that specific piece of content in the future, it must make sure that it takes down the content within 36 hours of receiving the takedown request. Section 69A applies to all information:Unlike Section 79(3)(b), Section 69A does not apply only to third-party content.
After following through with the procedural safeguards in place, the Government can use this section to issue blocking orders for entire applications and websites as well. If an intermediary fails to comply with a blocking order under Section 69A, they are liable for imprisonment for a term which can extend up to seven years and are also liable for a fine.The Government explains that X’s argument that there are lawful methods to block content under Section 69A is not entirely accurate because a large amount of unlawful information does not fall within the ambit of this section.
Most of the notices that the Government issues under Section 79(3)(b) pertain to removal of fake Skype IDs that bad actors have used in digital arrest scams, fraudulent WhatsApp accounts, deepfakes, fraudulent advertisements, child sexual exploitation and abuse material (CSEAM), and other such content.Also read:Govt Defends Section 79 Takedowns in X Case, Says They Complement Section 69A Blocking PowersX vs Indian Government: Key Points From X’s Petition Against Sahyog PortalX Challenges India’s Content-Blocking Mechanisms, Appeals before Karnataka HCThe post X conflated takedown notices with blocking orders to avoid due diligence: Centre to Karnataka High Court appeared first on MEDIANAMA..
