On 22nd July 2020, the Supreme Court of India suo moto initiated a contempt of court case against Advocate Prashant Bhushan and Twitter India. The proceedings were against Bhushan’s ‘two tweets’ dated 27th June 2020 and 29th June 2020. In these tweets, he questioned the working of the Supreme Court and criticized CJI Bobde. However, just two days after the first hearing, Twitter withheld or disabled the access to his tweets.
This piece of work seeks to analyze the effect of this step taken by Twitter.
The Case against Prashant Bhushan
Advocate Prashant Bhushan in his tweet on 27th June 2020 criticized the Supreme Court of India, and highlighted the Court’s role in the destruction of Democracy during the last six years. He also mentioned the role of the preceding four CJI’s in this regard. Bhushan on 29th June, made another tweet questioning the CJI. This tweet was made a few days after CJI Bobde’s photograph riding a Harley Davidson went viral on the internet. He tweeted–
“CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!”
Advocate Mahek Maheshwari on 9th July 2020 filed a complaint against Bhushan before the Supreme Court. He requested the Court to start a criminal contempt proceeding against Adv. Bhushan and Twitter India. He further stated that the tweet was a “cheap publicity stunt” with an attempt to “spread hatred in the form of anti-India campaign.”
Based on the application filed, the Supreme Court on 22nd July suo moto registered a criminal contempt of court case against Bhushan. The bench of Supreme Court comprised of Justices Arun Mishra, B.R. Gavai, and Krishna Murari. The Court undertook proceedings as per section 15 of the Contempt of Courts Act, 1971. The charge against him was that he allegedly scandalized the Court and brought disrepute to the administration of justice.
The Case against Twitter
Justice Mishra asked, “Why Twitter was waiting for a formal order of the Court to do so.”
The case against Twitter was for its failure to block the questioned tweets on its own after the contempt proceedings were initiated. Senior Adv. Sajan Poovayya appearing on behalf of Twitter India stated that Twitter has no intention of defending the tweets. He also said that Twitter would look into the matter and take necessary action.
Following this on 25th July 2020, Twitter withheld the two tweets of Adv. Bhushan dated 27th June and 29th June. After concealing the said tweets, a message in place was seen, which states- “This tweet from @pbhushan1 has been withheld in IN in response to a legal demand.”
The next hearing of the matter is on 5th August 2020.
The Problem with Twitter’s Actions
Twitter’s rules on withholding content, explains that the above-mentioned message displays when Twitter is “compelled to withhold the original tweet in response to a valid legal demand, such as a court order.”
What is pertinent to mention here is that the court order from the first hearing gives no direction to Twitter to take down the content. The suggestion given by Justice Mishra to take down the tweets post the initiation of suo moto contempt proceeding is itself flawed.
The Supreme Court in Shreya Singhal v. Union of India, interpreted Section 79 of the Information Technology Act, 2000, and Rule 3 of the Intermediary Liability Rules, 2011. It held that an online intermediary is required to expeditiously remove or disable access to challenged material only after a court order is passed directing it to remove such content. Applying Principle 2 of the Manila Principles, the Supreme Court ruled that Section 79 did not render intermediaries liable for illegal content unless they failed to comply with a court order. Thus, they are not required to act on a mere request made by a private party.
However, in Prashant Bhushan’s case, the order did not state any such thing. The need for an order is imperative, and such has to be followed in a strict sense. This is done to maintain a balance between free speech and its overreach on the internet. Substitution of this rule with a mere suggestion given by a Judge during a proceeding is not appreciated.
What is the Liability of intermediary in India
Section 2(w) of the Information Technology Act, 2000 defines an intermediary concerning electronic records as-
“any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record.”
Before the 2008 amendment to the IT Act, 2000, the intermediaries were held responsible for almost all the illegal or unlawful acts with no or insignificant amount of immunity. It was only after the Bazee.com case that limits the liability of intermediaries for user-generated content were placed.
Section 79 of the IT act provides for exemption from liability. This is done in case information or data by a third party is made available or hosted by the intermediary. The 2008 amendment clarifies the liability of these intermediaries. Now the involvement of an intermediary should be only in providing access to or hosting the content of the third party on its platform. It should not in any way:
- Initiate the transmission; or
- Select the receiver; or
- Modify the information by the third party during transmission.
Also, all through this while, the intermediary should observe due diligence in performing its functions
Information Technology (Intermediary Guidelines) Rules, 2011
These rules explain the provisions related to intermediaries in a better way. The Rules provide for a privately-administered takedown mechanism. Under this mechanism, once an intermediary receives information that unlawful material has been hosted, displayed, uploaded, modified, published, transmitted, updated, or shared on its platform, it is required to act within thirty-six hours to remove such information. Intermediaries also have the right to end access or usage rights of users who fail to follow the rules and regulations.
Author’s Note
The action taken by Twitter is highly condemned and should not be treated as a precedent for the future. This is because it raises questions on freedom of speech on the internet and the moderation of content on platforms like Twitter. With the development of technology and cyberspace, one of the earliest problems associated with the cyber world was related to the liability of internet intermediaries or online intermediaries, especially for secondary acts like in case of content written or activities undertaken by third parties. Over the years, the law has evolved to grant them protection and put in place a proper takedown mechanism.
Moreover, these intermediaries have a central role to play in modern times. They need to maintain a balance between rights on the internet and not act as a puppet in the hands of judicial administration. Thus, they need to follow the proper mechanism and withhold content only after receiving a court order.
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