MEITY has no legal basis to ask social media platforms to remove content in middle of India's COVID crisis!

Tl;dr

We came across news reports of two letters issued by the Ministry of Electronics and Information Technology (“MEITY”). The first letter is addressed to all social media platforms and seeks the removal of content related to the ‘Indian Variant’ of coronavirus. The second letter directs Twitter Inc. to remove the manipulated media tag affixed on certain tweets made by Indian political leaders. We are concerned that these letters, which have not been published by MEITY, do not have a statutory basis and curb freedom of expression over the internet. We have written to MEITY seeking withdrawal of these letters.

Background

On 21st May 2021 we came across news reports of letters written by MEITY to social media platforms. The first letter which MEITY sent out yesterday, requests all social media platforms to remove “all the content that names, refers to, or implies ‘Indian variant’ of corona virus from your platform immediately.” The second letter (copy of the letter is not in the public domain), according to news reports, is addressed to Twitter and seeks removal of the “Manipulated Media” tag affixed by Twitter on certain tweets made by Indian political leaders.

We have previously discussed the impact of curbing speech during the pandemic. Such restrictions have the effect of curbing otherwise legal information which must be available to the public at large. Thus, we are concerned about the impact these two extra-legal letters may have on speech. In this post, we discuss the legality of each of these letters and the steps we have taken against them.

Can MEITY ask social media platforms to remove all content that refers to ‘Indian Variant’ of Coronavirus?

As mentioned above, through the letter dated 21.05.2021, MEITY has requested all social media platforms to remove “all the content that names, refers to, or implies ‘Indian variant’ of coronavirus from your platform immediately.” As per the letter, MEITY has made this request because a false statement is being circulated online, which implies that an ‘Indian Variant’ of the coronavirus is spreading across countries. We have three concerns with this letter:

  1. Lack of statutory basis: The letter does not identify a provision of law under which the request to remove content has been made. The procedure to direct intermediaries to block information is provided by Section 69-A of the Information Technology Act 2000 (IT Act, 2000) and the Information Technology (Procedure and safeguards for blocking for access of information by the public) Rules 2009 (the Blocking Rules). Both the IT Act, 2000 and the Blocking Rules permit blocking of information only after the prescribed procedure has been followed. The prescribed procedure includes giving the author of the information an opportunity of being heard under Rule 8 of the Blocking Rules. The law does not empower MEITY to write to social media platforms asking for en masse removal of content. Thus, the letter does not have any sanctity in law.
  2. Vague, overbroad and violates Article 19(1)(a) of the Constitution: The letter seeks removal of ‘all the content that names, refers to or implies ‘Indian variant’ of coronavirus’. As a result of this phrasing (especially the word  “implies”), social media platforms may remove myriad content which is otherwise completely permissible in law. It includes news reporting on the spread of the virus in India as well as the World Health Organisation’s press release dated 16th April 2021 which states that a “new variant was reported in India” and that “this virus variant is a variant of interest, the B1617 lineage. This was first detected and reported by India; it has two mutations: the E484Q and the L452R.” Similarly, Indian users may also be denied access to important scientific developments wherein the words ‘Indian’ and ‘Variant’ are used in the same sentence. For example, yesterday Dr Gabriel Scally, Public health physician, Visiting Professor of Public Health at the University of Bristol tweeted that “The head of BioNTec expects their Pfizer vaccine to be "up to" 75% effective against the B.1.617.2 variant (first identified in India). This compares with its 95% effectiveness against the original virus. That is a big difference.” Removal of such essential and potentially life-saving posts is likely because social media platforms employ keyword-based filtering to censor content en masse and even if the latest AI tools are deployed the removal will not account for context.
  3. Provides no legal basis to remove such content: MEITY is empowered to block information only if it is necessary to do so in the interest of sovereignty of India, defence of India, security of State, friendly relation with foreign states or public order or for preventing incitement to the commission of any cognizable offence related to the above. Blocking content that refers to the ‘Indian variant’ of coronavirus is not necessary for any of these interests. Moreover, each instance of content posted online needs to be examined on its own merits, to determine whether it affects any of these interests. Asking for en masse removal prevents such an analysis and unreasonably censors speech which is protected under Article 19(1)(a) of the Constitution. Notably, the advisories dated 20.03.2020 and 07.05.2021 issued by the MEITY and referred to in the letter, directed social media entities to inform their users to not upload information “that may affect public order.” As opposed to those advisories, this letter seeks removal of any content that refers to ‘Indian Variant’ of coronavirus, irrespective of whether it affects public order or not.

Can MEITY ask Twitter to remove the ‘Manipulated Media’ tag?

We are also concerned with another letter that MEITY has addressed to Twitter Inc.. According to media reports, through this letter MEITY has sought removal of the “Manipulated Media” tag affixed by Twitter on certain tweets made by Indian political leaders. In those tweets, the political leaders are attributing a ‘toolkit’ to a political party. The Ministry has objected to the tagging because law enforcement agencies are investigating the veracity of the ‘toolkit’.

In this regard, we reiterate the concern we have raised above that such letters are not anchored in any provision of law. Nothing in the IT Act, 2000 or the Rules made thereunder empowers MEITY to request Twitter to take down such tags. The law also does not prohibit twitter from affixing such tags. Moreover, the actions of Twitter aligns with Twitter’s ‘Synthetic and Manipulated Media Policy’. This policy permits Twitter to affix a tag if it finds that the content has been substantially edited or if the content is shared deceptively. The fact that a law enforcement agency is investigating the veracity of the toolkit referred to in the tweets does not prevent Twitter from tagging content on its platform. In the event that such tagging affects any ongoing investigation, it is the law enforcement agency and not the Ministry that should take steps.

IFF’s Response

To ensure that speech over social media is not unreasonably curbed, we have written to MEITY detailing our concerns. In the letter, we have urged MEITY to:

  • Publish true copies of these letters on the official website of MEITY and seek legal opinion from the Ministry of Law and Justice.
  • In the interim withdraw these letters and publish the withdrawal order on the website of the Ministry.

We are hopeful our letter is considered and we remain available to provide assistance to MEITY. We shall keep you informed on any developments on this front.

Important Documents

  • IFF’s letter dated 22.05.2021 asking MEITY to withdraw the letters (link)
  • MEITY letter dated 21.05.2021 addressed to all social media platforms seeking removal of any content that related to ‘Indian Variant’ of coronavirus  (link)
  • IFF’s statement condemning social media censorship of posts seeking or providing COVID-19 relief April 25, 2021  (link)
  • IFF’s video discussing the legality of orders taking down COVID-19 relief work dated April 26, 2021 (link)
  • IFF’s video discussing the liability of WhatsApp group administrators for content posted by others dated May 5, 2021 (link)
  • Supreme Court order in Suo Motu Writ Petition (Civil) No. 3 of 2021 dated April 30, 2021 (link)