In a significant move reinforcing digital rights and natural justice, a bench of Justices B.R. Gavai and Augustine George Masih has expressed serious concerns over current social media takedown procedures under the IT Rules, 2009.
During a plea filed by the Software Freedom Law Centre (SFLC), represented by Senior Advocate Indira Jaising, the Court observed that takedown notices are often sent only to intermediaries (like X or Facebook), without alerting the original content creators.
Legal Reasoning & Observations
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Preliminary Stance:
“Prima facie, we feel that if there is an identifiable person, then notice should be issued,” the bench stated, suggesting that Rule 8 of the blocking rules be interpreted to recognize both the intermediary and the content creator, not just one or the other. -
Principles of Natural Justice:
The petition highlighted that current practice violates basic fairness: “The challenge is not to the power of ‘take down’ but the fact that no intimation is given to the originator of the impugned information.” Jaising emphasized that this setup denies the right to be heard. -
Real-World Impact:
Instances like senior advocate Sanjay Hegde’s X account—suspended for years without explanation—were flagged to demonstrate the system’s opacity.
Wider Significance
The Court has issued notice to the Centre, asking the government to respond within three weeks. It acknowledged the need to possibly read down or amend Rules 8, 9, and 16 of the Blocking Rules, 2009, to align with constitutional standards.
This landmark judicial scrutiny comes on the heels of important legal developments:
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The 2015 Shreya Singhal judgment struck down Section 66A and clarified the state’s power in online content removal.
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The Court is now further exercising its oversight role to ensure that constitutional fairness, including Article 19(1)(a) (free speech) and Article 21 (due process), is baked into digital regulation.
Implications for Digital Governance
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For users: A move toward transparency, enabling them to contest wrongful takedowns.
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For platforms: Intermediaries may be required to preserve notice logs and allow creators to defend themselves.
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For regulators: A potential pivot toward procedural forms like rationale documentation, public transparency, and opportunities to appeal.
