On 5th March, the microblogging platform, X, formerly Twitter, filed a writ petition against the Government of India in the Karnataka High Court, challenging the use of Section 79(3)(b) of the Information Technology (IT) Act, 2000 for content takedowns. Section 79(3)(b) carves out an exception from the “safe harbour” granted under Section 79 to protect online intermediaries from incurring liability for third-party content uploaded on their platform. X further contends that the said section is being used as a shield against the procedural safeguards enumerated under Section 69A of the IT Act.
The petition pushed back against the Indian Cyber Crime Coordination’s Sahyog Portal, created by the Ministry of Home Affairs (MHA) to automate the process for sending takedown notices to social media platforms. X questioned the legal backing of the Ministry to create “the censorship portal”. It added that the portal creates a parallel mechanism to Section 69A of the IT Act which undermines the statutory protection and allows for arbitrary control over content.
In October, the Delhi High Court in Shabhana v Govt of NCT of Delhi, while dealing with the investigation of a missing child, recognized that there is a communication lag between the police requests and platforms’ response to such requests. To prevent further delay, the court, through an order, instructed Google, Meta, Reddit, LinkedIn, WhatsApp, and Telegram to submit their standard operating procedures. Through this case, the court underscored the need for a portal for a more efficient communication mechanism.
In this backdrop, MHA conducted a meeting in December 2024 with nodal officers nationwide in which the ministry received feedback from officers regarding issues faced by law enforcement when reaching out to online social media platforms. Following this, MHA developed a portal under Section 79(3)(b) of IT Act read with Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and submitted the same before the Delhi High Court. It was brought into action with the goal of consolidating all intermediaries and authorized agencies on one platform to facilitate real-time interactions.
The contention in the Writ Petition is that while IT Rules have provided for the position of nodal officer to streamline communication, there exists no law that authorizes the MHA to create the Sahyog Portal. X argues that Section 69A is the only provision that deals with content blocking, however, using the façade of Section 79(3)(b), which is an exceptional provision, the government formed the Sahyog Portal to sidestep procedural safeguards.
In light of the same, SFLC.in filed an RTI with the Ministry of Home Affairs, seeking further clarity about-
- The number of notices sent to intermediaries by the Appropriate Government or its agency under IT Act, 2000 to facilitate the removal or disabling of access to any information, data or communication link through the Sahyog Portal from 2024 to 2025?
- The number and names of intermediaries that are registered on the Sahyog Portal at present?
- The number of notices issued to each registered intermediary from 2024-2025?
- The sections of the IT Act 2000 under which notices are sent to intermediaries through the Sahyog portal?
- The details of all Appropriate Government and agencies who have sent notices to intermediaries through the Sahyog portal?
Through their reply, SFLC.in can confirm that a total of 179 requests were sent to intermediaries by the Appropriate Government or its agencies under the IT Act.
There are a total of 66 intermediaries registered on the Portal at present.
Of the 179 requests sent, 81 were sent to Telegram, 53 to YouTube, 27 to Google, 9 to Apple, 3 to Amazon, and 1 each to Business Solutions, Oracle India, and the Public Domain Registry.
All the notices were sent under Section 79(3)(b) of the IT Act, 2000.
The full list of ‘Appropriate Agencies’ is annexed to this blog. Most of the requests arose from officers in the Police, including Superintendents of Police.
The reason that this is problematic is that it results in a parallel system of content takedowns being enforced without sufficient checks and balances being applied. The Supreme Court in Shreya Singhal held that content can be censored in two ways: process set out under Section 69A or in compliance with a competent court’s order. The former requires the government to record its reasons for blocking the content in writing, hold a pre-decisional hearing where the platform as well as the user whose content is in question can participate, and undertake a post-decisional review of blocking orders. Nodal officers are appointed to send blocking requests to platforms. The petition argues that through the Sahyog Portal, the government is building an alternate mechanism to issue blocking directions. In an order issued through the portal, the intermediary is not provided an opportunity to challenge the order and the blocked content remains unreviewed for an indefinite period, violating the principles of natural justice and due process, alongside Section 69A.
Adding to it, Section 69A assigns the authority of blocking to a Designated Officer, which can be a Joint Secretary or an officer of a higher position, however, the Sahyog Portal empowers different agencies, ranging from ministries, state governments, and local police, to issue a blocking order. This decentralized and expansive use of censorship is ultra vires the IT Act, Articles 14 and 19 of the Constitution.
Lastly, the order issued via the portal remains hidden from the public eye. This secrecy hinders intermediaries and users from challenging blocking decisions. Under Section 69A, there is a list of reasons for which blocking orders can be issued. To the contrary, the portal, first, provides no justification, and second, can block content for vague and undefined reasons too.
In response to it, the central government argued that the portal is operationalised to allow both the state and the central government to issue notices under Section 79(3)(b). The portal eases law enforcement as well as intermediaries by authenticating blocking directions sent to intermediaries. The government added that 38 intermediaries have joined the portal and Meta is involved in an API-based integration to enable real-time action. After hearing rebuttals on behalf of the Petitioner and Intervenor, the Court has reserved its judgment.
