Firstly, while the Indian government can set up a portal to enable its authorised agencies to send takedown requests to intermediaries, nothing in the law mandates that an intermediary join the Sahyog portal. X is thus well within its rights to refuse to join Sahyog. Let’s not forget that there are millions of intermediaries on the Internet, and if the government is asking some specific entities to join, it has to have a rational and legal basis for it. It can’t be as ad hoc as this appears to be.
Second, to call the Sahyog portal a censorship portal is accurate because of how it will be used: to hold platforms liable for the content unless they censor it. This was the basis of the legal challenge against the Indian government in 2014, in the series of cases that led to a landmark Supreme Court ruling on free speech and online censorship called the Shreya Singhal judgement. The Supreme Court rightly read down Section 79A of the Information Technology Act to state that only courts and government agencies can send notices under this clause, with the expectation that at least they’ll use this provision responsibly. Rishabh Dara’s research in 2011 pointed out that prior to this restriction, there was a chilling effect on free speech.
It’s also important to remember here that Section 79 of the IT Act is a mechanism to protect platforms from liability for third-party content. The idea is that if you’ve been given notice from a responsible party, that has applied their mind to the notice, you will act upon it responsibly and take it down, or else you’re liable. It does not take into account the setting up of a mechanism like the Sahyog portal that will lead to a potential increase in such notices. It’s pretty evident to me that many government departments, especially the police, don’t actually apply their minds or assess legality before sending notices. While some platforms push back, this is often not looked at favourably by government officials—the audacity!
As Twitter (or X, as that useless and noisy ode to doomscrolling of a platform is called now) has suggested, the Sahyog portal will work as an alternative to the blocking provisions. The weaponisation of the safe harbor provision, which are legal protection shielding platforms from liability for user-generated content, via Sahyog, needs to be prevented. Additionally, platforms have failed too much to challenge the problematic IT Rules (2021) that create a punitive mechanism under a provision that is actually intended to protect platforms from liability. As Dara’s research had indicated, the way Section 79 takedown notices are used to threaten liability has a chilling effect on free speech.
The best outcome for legitimate speech on platforms would be an improvement in the safe harbor provision via the separation of liability for third-party content from enforcement of operational obligations.
Shifting the onus to platforms via the Sahyog mechanism
Frankly, it appears to me that the government is setting up this Sahyog portal mechanism to shift responsibility onto platforms, instead of ensuring the application of mind by government officials while issuing blocking notices. The government rightly receives criticism for how it blocks content under Section 69A: orders are issued as “emergency” orders, which means that they aren’t reviewed by a committee before being sent. For example, how are orders from the Railways to take down photos and videos of stampedes legal?
There is almost never a meeting with affected parties (whose content is taken down), which the Shreya Singhal judgement had indicated. Apps are regularly taken down from the Google Play Store using the blocking provision, with no effort to engage with developers, even though they’re identifiable. It’s important to remember that the Software Freedom Law Centre has filed in courts against the opacity and lack of accountability with the Section 69A provision. The Sahyog portal will effectively give government agencies an alternate mechanism to censor content at will.
I don’t really grudge those platforms that have joined Sahyog: they’ve taken a decision that this isn’t their hill to die on, as the saying goes. A possibly illegal notice from DoT to take down videos that taught users how to modify caller ID info has also been complied with, instead of being contested. Platforms have been on the receiving end of threats of liability from the government over the past few years. Ministers have talked about the removal of safe harbor “status” for platforms. Delhi Police landed up at X/Twitter’s office in the middle of the night in Delhi in 2021.
From a free speech perspective, this is an important case. One must remember that platforms are carriers of speech; an important aspect of enabling legitimate and legal speech, which our Constitution protects, is to protect the platforms that carry them.
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