In a most powerful, peculiar, path breaking and progressive judgment titled Twitter Inc v Union of India in Writ Petition No. 13710 of 2022 (GM-RES) that was pronounced as recently as on June 30, 2023, the Karnataka High Court has dismissed the petition that was filed by Twitter Inc, challenging the blocking orders issued to it by the Ministry of Electronics and Information Technology (MeiTY) under Section 69A of the Information Technology Act. Not stopping here, the Single Judge Bench comprising of Hon’ble Mr Justice Krishna S Dixit has also imposed a heavy cost of Rs 50 lakhs on the microblogging platform i.e. Twitter Inc holding it liable by citing its conduct. Twitter Inc will have to pay the exemplary cost of Rs 50 lakh payable to the Karnataka State Legal Services Authority within 45 days and if delay is brooked, it will attract an additional cost of Rs 5,000/- per day. It is worth noting that the Bench also refused to issue guidelines to Centre as sought desperately by Advocate Manu Kulkarni for Twitter for exercise of its powers under Section 69A.
At the very outset, this learned, laudable, landmark and latest judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Krishna S Dixit sets the ball in motion by first and foremost putting forth briefly in the opening para that, “Petitioner, claiming to be an Intermediary under the Information Technology Act, 2000 (hereafter ‘Act’), is knocking at the doors of Writ Court complaining against certain Blocking Orders issued by the respondents, whereby it is directed to bar access of certain information to the public, by effecting suspension of some accounts on Twitter i.e., www.twitter.com. In the alternative, petitioner seeks a direction at the hands of this court ‘to modify the Blocking Orders to the extent of Table A of Annexure S to revoke the account level directions and instead identify specific tweets which are violative of Section 69A of the IT Act with reasons.’ The respondents vide letter dated 27 June 2022 have warned the petitioner of serious consequences such as withdrawal of protection availing under section 79(1) of the Act and initiation of criminal proceedings as well if these orders are not complied with.”
III. FOUNDATIONAL FACTS OF THE CASE:
To put things in perspective, the Bench envisages in para III Clause (i) of this judgment that, “Petitioner is a company incorporated under the laws of the United States of America, having its registered office at San Francisco, California. In the petition, it has shown the ‘contact address’ as Dickenson Road, Bangalore, India. Petitioner provides services on Twitter to users inter alia in India; Twitter is claimed to be a global platform for self-expression of its users to communicate and stay connected through messages of 280 characters or less (Tweets), at times with pictures/videos. Petitioner answers the description of “intermediary” as given in section 2(1)(w) of the Act since its functions are restricted to receiving, storing & transmitting ‘records’ or providing ‘any service with respect to that record’, on behalf of any user of Twitter platform.”
While continuing in the same vein, the Bench then states in para III Clause (ii) that, “1st Respondent-Union of India [hereafter ‘UOI’] is the “appropriate government” as defined under Section 2(e) of the Act; 2nd Respondent happens to be the “Designated Officer” [hereafter ‘Designated Officer’] as defined under Rule 2(c) of the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 [hereafter ‘Website Blocking Rules’]. The respondents in exercise of power availing under section 69A of the Act, have issued Blocking Orders on various dates. These Blocking Orders in all comprise of 1,474 Twitter accounts and 175 Tweets. A brief description of this is given in paragraph No.4. Petition also states ‘Of the above, only a total of 39 URLs are being challenged by the Petitioner…’.”
Moving on, the Bench points in para III Clause (iii) that, “Petitioner in June 2022, having received notice of the Blocking Orders, claims to have complied with the same ‘under protest’. It sent a reply dated 9 June 2022 seeking a post-decisional personal hearing. The Designated Officer vide notice dated 27 June 2022 directed compliance with all directions issued under section 69A of the Act coupled with a warning of serious consequences such as withdrawal of the immunity availing under section 79(1) & penal actions, if the same are not complied. Petitioner sent its response dated 29 June 2022 to the effect that certain so-called objectionable content did not attract the grounds specified in section 69A.”
Do note, the Bench then minces just no words to hold aptly in para IX Clause (c) that, “Learned ASG is right in pointing out that even from the view of ‘proportionality principle’, the impugned orders cannot be faltered, the same having come into being after adhering to due process of law, both substantive & procedural. Complaint against tweets & accounts were made by a high functionary of the Union Government; the same having been examined by a statutory committee comprising again of high functionaries, recommended the action, and accordingly, the Designated Officer who is not below the rank of a Joint Secretary in the Central Government, took the action in challenge. Representatives of the petitioner have participated in the Committee deliberation. On their submission, 10 of the 11 accounts have been cleared from blocking. Petitioner’s contention that the respondents ought to have segregated objectionable content at the tweet level and thereafter, resorted to tweet level blocking, is liable to be rejected since such an exercise is impracticable inasmuch as the mischievous originators of the information would designedly mix provocative tweets/illegal contents with the so called innocuous ones. That apart, segregation would not achieve the intended goal especially after the subject tweets are shared thousands of times before any action can be taken against them. The URLs in question have been identified & curated based on the use of specific hashtag in question and also on tweets that related to such hashtags. An exercise to differentiate amongst the individual tweets in an account and segregate the offending ones from the innocuous, is impracticable and would not serve the statutory purpose. This apart, the scope of Blocking Orders is limited to Indian jurisdiction. Therefore, petitioner’s argument that the blocking orders ought to have been confined to individual tweets and not extended to the entire handle, and therefore, the impugned orders suffer from the vice of disproportionality, cannot be agreed to.”
Most forthrightly, the Bench observes in para X Clause (c) that, “The non-compliance with section 69A orders has the potential to make the tweet more viral and spread to other platforms as well. One can imagine the damage potential when such objectionable tweets are allowed to be disseminated despite interdiction. The damage potential is directly proportional to the delay brooked in the compliance of such orders. Petitioner has demonstrably adopted a tactical approach to delay compliance and that shows its intent to remain non-compliant to Indian law. No plausible explanation is offered for the delay in approaching the Constitutional Court, either. Petitioner has abruptly complied with section 69A orders, a bit before coming to court, though the 2nd respondent had issued compliance requirement notice way back on 2 February 2021 threatening: “It needs to be mentioned that Section 69A(3) provides for specific penal consequences in case of non-compliance of the directions issued under section 69A of the Act.” The penalty prescribed u/s 69A(3) for the offence of non-compliance of the order is imprisonment for a term which may extend to seven years and/or fine. Even that did not deter the recalcitrant petitioner. The Central Government, in its discretion, did not choose to prosecute the petitioner for the offence in question. It hardly needs to be reiterated that the Constitutional Courts do not come to the aid of litigants whose hands are soiled or who are indolent.” The Bench also clearly stated that, “In view of the above, this court is of the considered opinion that petition is hit by delay & laches and culpable conduct of the petitioner and therefore, no relief can be granted in the equitable jurisdiction constitutionally vested under Articles 226 & 227.”
Most significantly, while dwelling on the culpable conduct of petitioner and levy of exemplary costs, the Bench mandates in para XI Clause (a) that, “Petitioner’s pleadings, copies of documents accompanying the same and the Rulings cited from the side of the petitioner run into hundreds of pages. To counter petitioner’s case, respondents also have filed their pleadings, documents & Rulings, as of compulsion and they are voluminous. This petition was heard for days together, keeping at bay worthier causes of native litigants who were waiting in a militant silence and in a long queue. As already observed above, for more than a year, the Blocking Orders were not implemented by the petitioner and there is no plausible explanation offered therefor. There is a willful non-compliance of the Blocking Orders; arguably, such an act amounts to an offence under section 69A(3) of the Act. The cascading adverse effect of noncompliance of such orders, needs no research, nor reiteration. Abruptly, the impugned orders have been implemented with a clandestine caveat of reserving the right to challenge. This is a classic case of speculative litigation and therefore, petitioner is liable to suffer levy of exemplary costs.”
Finally and far most significantly, the Bench concludes by holding in para XI Clause (c) that, “In adjudging the nature & quantum of costs, what has been observed in VINOD SETH vs. DEVINDER BAJAJ (2010) 8 SCC 1, needs to be borne in mind:
““23. The provision for costs is intended to achieve the following goals:
It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence…Costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs…”
In the above circumstances, this Petition being devoid of merits, is liable to be dismissed with exemplary costs, and accordingly, it is. Petitioner is levied with an exemplary cost of Rs.50,00,000/- (Rupees Fifty Lakh) only, payable to the Karnataka State Legal Services Authority, Bengaluru, within 45 days, and delay if brooked attracts an additional levy of Rs.5,000/- (Rupees Fife Thousand) only, per day.
This Court places on record its deep appreciation for the able assistance rendered by a Chamber Intern, Mr. Chanakya Subbaramaiah.”
In conclusion, it is high time and Twitter Inc must pay heed to what the Karnataka High Court has held in this 109-page judgment. Twitter Inc must also pay promptly the Rs 50 lakh cost as if it does not pay in time, it will have to pay Rs 5000 extra for it. The Bench also clearly held that, “Your client (Twitter) was given notices and your client did not comply…Punishment for non-compliance is 7 years imprisonment and unlimited fine. That also did not deter your client. So you have not given any reason why you delayed compliance, more than a year of delay…then all of sudden you comply and approach the Court. You are not a farmer but a billion dollar company.” Of course, the earlier Twitter Inc pay heed to what the Karnataka High Court has held, the better it shall be in its own interests! No denying it!
Sanjeev Sirohi