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Business Standard

Centre tells Karnataka HC 'chilling effect' not an all-in-all solution

The central government on Friday told the Karnataka High Court that claiming a 'chilling effect' on free speech cannot be an all-in-all solution against reasonable restrictions. Solicitor General Tushar Mehta argued before the court that reasonable restrictions under Article 19(2) of the Constitution on Freedom of Speech and Expression are an 'elastic' concept that must evolve with the ever-expanding scope of Article 19(1)(a) in today's technologically advanced era. The Karnataka High Court is hearing X (formerly Twitter) Corp's plea against the Centre, challenging the unlawful content regulation and arbitrary censorship through the Ministry of Home Affairs' Sahyog Portal. The Centre is now making its submissions before Justice M Nagaprassana after X argued its case. X Corp has argued that Section 79(3)(b) of the Information Technology Act does not confer the government with the authority to issue information blocking orders, and that such orders can only be issued after following the procedure under Section 69A of the Act, read with IT Rules. The social media platform has also argued that content take-down orders under Section 79(3)(b) of the Information Technology (IT) Act have a chilling effect on its users. While Section 69A empowers the government to block access to information, subject to specific procedures and safeguards, Section 79 serves as an exemption provision, providing a 'safe harbour' for intermediaries. Responding to this, SG Mehta said that the chilling effect is not a defence for disseminating content that is 'not in the interest of society' and that X cannot claim a chilling effect on behalf of its users. He quoted a 2020 case of the Supreme Court where a 3-judge bench had observed that the widening of the 'chilling effect doctrine' has always been viewed with judicial scepticism. Talking about the misuse of technology, Mehta submitted that if, hypothetically, an AI video of the judge saying something against the nation were created, it would not fall within the vires of Section 69A but would unquestionably be unlawful, and this is where Section 79 comes in. "Section 69A is not only about taking down, but also a penal provision. Courts have developed that my fundamental rights of doing something may come into conflict with other persons' fundamental rights, so there is always a competition of fundamental rights—Article 14, 19, 21. Therefore, jurisprudence is developed for balancing competing fundamental rights to achieve constitutional goals." Mehta also argued that to curb the menace, such as fake accounts and posts, 'safe harbour' protection to intermediaries cannot be absolute. Take-down directives issued under Section 79(3)(b) are an exception to the exception of safe harbour, he said. "Similar safe harbour provisions and exceptions to exceptions exist in all jurisdictions of the world. This is the only social media intermediary (X Corp) that has a problem and is before the court. X Corp in some other jurisdictions has been fined, censured, etc. I have shown that certain intermediaries are not complying, and every country is grappling. Any deviation from the exception to safe harbour, taking care, due diligence, etc., is viewed seriously now by all you are informed and you do not follow guidelines, then 'safe harbour' will be lost," Mehta said.