Due process as a convenient tool

The labelling of a tweet as “manipulated media” by Twitter has garnered excessive attention on the political battlefield. The government’s actions in the matter raise a few fundamental questions that may alter our understanding of ‘due process’, free speech and horizontal applicability of fundamental rights.

On May 18, BJP spokesperson Sambit Patra tweeted screenshots of a purported “toolkit”, alleging its use by the opposition Congress party to malign the image of the government. In retaliation, the Congress formally complained to Twitter saying that it was a fake document and filed an FIR against numerous BJP leaders for fraud and forgery. Subsequently, Twitter, in line with its policy on ‘synthetic and manipulated media’, labelled the document in Patra’s tweet as “manipulated media” after conducting its own inquiries.

Curiously enough, the Union government responded to this action of Twitter, objecting to the labelling of Patra’s tweet and saying that such actions by Twitter amount to “a clear overreach, which is totally unwarranted” and that “such a tag by Twitter appears to be pre-judged, prejudiced and a deliberate attempt to colour the investigation by local law enforcement agency.” On this pretext, the government asked Twitter to remove the ‘manipulated media’ tag from Patra’s tweet.

The primary objection of the government appears to be that while a domestic enquiry by a law enforcement agency – Delhi Police -- was underway, how could Twitter “unilaterally” draw a conclusion and “arbitrarily” tag the tweet as ‘manipulated media’. This is the first time we are witnessing a scenario in which the Union government is using lack of ‘due process’ regarding an action on a tweet.

Prima facie, it has two important implications. First, on many previous occasions, we have witnessed that the same government, through notifications issued under the Information Technology Act, 2000, has asked Twitter to take down tweets in connection with the agitation against farm laws and criticisms of the government on its handling of Covid-19. However, even in those cases, there were instances of filing of FIRs and initiation of inquiries by domestic law enforcement agencies. Therefore, the Union government, in asking Twitter to take down tweets before the completion of inquiries by enforcement agencies, itself acted in flagrant violation of ‘due process.’ Freedom of speech and expression is a fundamental right and the duty to follow due process while curtailing a fundamental right is far more on the elected government compared to a private corporation.

Consequently, the government’s action in asking Twitter to follow due process begs the question: Is the Centre hinting at a more stringent horizontal enforcement (enforcement against a private entity) of fundamental rights compared to vertical enforcement (enforcement against the elected government) of fundamental rights? If it is indeed the intention, should we expect a new legislative bill soon that would empower citizens to seek enforcement of fundamental rights against private corporations?

If the government is attempting neither, then the Sambit Patra episode would only suggest that the action of the government in this case is, in line with its tendency towards executive highhandedness, just an attempt at establishing executive supremacy, rather than empowering citizens against the supposed “arbitrary” actions of private corporations.

Second, the Information Technology Act, 2000, bestows upon the government the power to direct the intermediary (in this case, Twitter) to block access to online posts. However, no law empowers the government to eclipse the internal rules of Twitter and stop the intermediary from conducting internal inquiries or force it to unblock a tweet or post that it has, after scrutiny, deemed violative of the platform’s guidelines. Therefore, the action of the government seems to be rooted more in political desperation rather than in the law of the land.

Furthermore, the government also claimed that such labelling by Twitter “dilutes its credibility” and may bring into question its ‘intermediary’ status. Interestingly, if the government removes Twitter’s status as an intermediary under the IT Act, 2000, then Twitter can be made liable for posts on the platform by third parties. However, the IT Act provides for only two situations in which the exemptions provided under Section 79 can be withdrawn: first, if the intermediary conspires, abets, aids or induces an unlawful act; and second, if the intermediary refuses to disable online access to posts that the government lawfully objects to.

Certainly, the conduct of an internal inquiry and the labelling of a post as ‘manipulated media’ does not find mention in the Act as a condition under which its intermediary status can be withdrawn. Therefore, the government’s line of argument that labelling of posts amounts to Twitter adopting an editorial role and hence makes the intermediary liable, appears to be a threat devoid of any statutory backing. Additionally, arguing that labelling of a tweet by Twitter would influence the police inquiry says more about the lax status of such inquiries than about the prejudice of the intermediary.

(The writer is an advocate practising in the Allahabad High Court)