Understanding the legality of Twitter’s withdrawal of Prashant Bhushan’s “contemptuous” tweets and its effect on Free Speech in India
Issue 9 | August 15, 2020
Senior Advocate Prashant Bhushan has been found guilty of contempt of court by a three-judge bench of the “Hon’ble” Supreme Court of India (“the Court”) for two tweets posted by him in June, 2020. The court’s decision has become a subject of massive debate and controversy around the country; however, there is one aspect that has not been talked about as much- Twitter’s withdrawal of the tweets in the absence of a court order to this effect. The suo moto action from Twitter came only two days after the first hearing in the case, also initiated suo moto by the Court. This withdrawal of tweets by Twitter not only goes against the law, but also sets a dangerous precedent for free speech in India.
The Legal Position
In the case of Shreya Singhal v. Union of India, [(2013) 12 SCC 73], a division bench of the Court while interpreting Section 79 of the Information Technology Act, 2008 and Rule 3 of the Intermediary Liability Rules, 2011 held that intermediaries were required to take down harmful content only if a court passes an order or the Government issues a notification to this effect. As Raghav Mendiratta writes, the Court’s reasoning was based on removing the obligation from online intermediaries of deciding which content was unlawful , and also on the understanding that private intermediaries were not arbiters of truth to determine the limits of right to free speech under Article 19(1)(a) of the Constitution (Raghav Mendiratta, No Country for Dissent, Verfassungsblog).
In the present case, however, Twitter took the tweets down in the absence of a court order or a notification, and to such extent, such withdrawal is contrary to the legal position in India.
Notable however is the fact that prior to the withdrawal, a courtroom exchange took place between Twitter’s counsel and Arun Mishra J., wherein it was suggested by the Hon’ble Judge that the tweets be taken down. However, a courtroom exchange does not tantamount to a court order.
Effect of the withdrawal on Free Speech in India
Twitter’s withdrawal of the tweets by Prashant Bhushan even before the court had passed a final order is, by all means, a premature action. Such an action is bound to have an impact on the free speech regime that India has maintained for very many years, despite all odds. As Mendiratta writes (supra), by disabling access even before a final adjudication, Twitter may have created a dangerous precedent for itself and other online intermediaries. It could well be argued that Twitter has conceded that online intermediaries may be expected to take down contemptuous or defamatory content merely at the brink of a court proceeding initiated against them. What’s more, such withdrawal also entails a possibility that courts could curtail any criticism against them by simply initiating suo moto contempt proceedings. No wonder, if such withdrawal is made in defamation cases between individuals, free speech may soon become a thing of the past.