In a welcome step towards transparency and accountability, the Department of Telecommunications (“DoT”) has recently started publishing the blocking notifications/instructions to Internet Service Licensees under court orders. We wrote to the DoT to appreciate their proactiveness in making these court orders public and urged them to ensure that executive blocking orders are also published and made publicly available.
Why should you care?
Today, the Internet has reduced barriers to communication and acts as a great enabler of the fundamental right to freedom of speech and expression. Just like the physical space, the right needs to be protected for everyone, even in the digital arena. Censorship, by its very nature, is a restriction on our constitutionally guaranteed fundamental right to free speech. A restriction on our fundamental rights must be accompanied by strict procedural safeguards, to ensure that our rights aren't impermissibly restricted. Transparency is essential for this process to occur fairly, and online censorship is a notoriously non-transparent process. The DoT's move will advance transparency and is a step in the right direction, but more needs to be done.
Websites or URLs in India may be legally blocked either by a Court order pursuant to some legal proceedings, or by an executive order by MeitY pursuant to Section 69A of the Information Technology Act, 2000, and the Rules made thereunder. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (the 2009 Blocking Rules) empowers a designated officer of the Central Government to issue directions to a service provider to censor certain URLs or even ban entire websites.
This power of censoring the internet is carried out by a process, that the Ministry of Electronics and Information Technology (MeitY) claims is highly confidential. So confidential, in fact, that owners of banned websites and authors of censored content are not even told why their content was banned nor provided an opportunity to respond. This is perhaps why, even though Court orders have now finally been made public, executive orders continue to be withheld from public view.
This secretive process goes against the principles of natural justice, i.e., the right to a fair hearing where each party must receive the opportunity to respond to the allegations against them.
Nothing confidential about censorship
This confidentiality in the process can be traced back to Rule 16 of the 2009 Blocking Rules, drafted and issued by MeitY itself, which states that “Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.” MeitY interprets this Rule 16 to mean that it is not required to provide any notice or hearing to persons who are being censored. However, the Hon’ble Supreme Court examined the procedure under the 2009 Blocking Rules, in Shreya Singhal v. Union of India, and held that,
“110. The Rules further provide for a hearing before the Committee set up - which Committee then looks into whether or not it is necessary to block such information. It is only when the Committee finds that there is such a necessity that a blocking order is made. It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the "person" i.e. the originator is identified he is also to be heard before a blocking order is passed. Above all, it is only after these procedural safeguards are met that blocking orders are made and in case there is a certified copy of a court order, only then can such blocking order also be made.” (emphasis supplied)
The Hon’ble Supreme Court has made it clear that written reasons along with a hearing must be provided to the originator in cases where such an originator is identified. Accordingly, all persons who have suffered online censorship or bans must be able to access a copy of the blocking order in respect of their website/content. Even in instances of an emergency ban, a post-decisional hearing must be provided to all originators whose content was censored. This was also ordered by the Hon’ble High Court of Delhi in its order dated May 11, 2022, in Tanul Thakur v. Union of India (W.P.(C) No. 13037/2019).
Executive, publish the executive orders too
Aside from misapplying a confidentiality provision in respect of the Government’s own actions, under Rules framed by Government itself, there is no legal principle or provision that requires that such censorship orders ought not to be made publicly available. In fact, to bring its actions in line with constitutional values and the grundnorm of the Rule of Law, it is necessary that the government proactively discloses its censorship orders.
Previously, we wrote to MeitY, urging them to publish the executive orders issued to Internet Service Licensees for blocking URLs. Through our letters dated February 8, 2021, April 9, 2021, and May 5, 2021, we requested that the blocking orders be provided to persons whose accounts were banned, in compliance with the Hon’ble Supreme Court’s judgment in Shreya Singhal v. Union of India.
We have now written to the DoT expressing our appreciation for starting the practice of publicly uploading court orders for blocking websites, but also explaining why it is necessary to also publish executive orders proactively. We requested them in our letter to ensure that the executive orders are proactively made publicly available as well.
- IFF’s letter to DoT on uploading blocking notifications/instructions to Internet Service Licensees pursuant to judicial decisions dated May 31, 2022. (link)
- IFF’s rejoinder to MeitY’s dated May 05, 2021. (link)
- MeitY’s email response dated April 26, 2021. (link)
- IFF's letter dated February 8, 2021, to MeitY regarding 'Secretive and disproportionate directions issued to Twitter under Section 69A of the Information Technology Act, 2000'. (link)
- Order of the Delhi High Court in Tanul Thakur v. Union of India dated 11th May 2022. (link)