Senior Advocate Aditya Sondhi, representing DigiPub, voiced his concerns before Justice N Nagprasanna, stating, “A judicial determination of an unlawful act by a duly constituted court of law, on the one hand, and a cyclostyled form with the hands of the officer to fill in a couple of blanks here and there and direct taking down, directly infringes Article 19(1)(a).”
According to LiveLaw, he further remarked, “Extreme examples do not make the law. 92 media houses, putting out responsible reporting, are at the mercy of an officer issuing a cyclostyled order.”
The plea by DigiPub was submitted as an intervention in the ongoing investigation case filed by X Corp, which has challenged similar content takedown orders.
During the hearing, Sondhi highlighted the implications of such directives on actual content creators rather than platforms, stating, “X is a platform or intermediary. X per se does not create content. We do. Takedown orders will affect us directly. The fact that the originator of content has a right, a locus standi, I may say, has been recognised by the Supreme Court in the Shreya Singhal case.”
He went on to explain the scope of Section 79 of the Information Technology Act, clarifying that it begins as an exemption clause. While Section 79 offers protection to intermediaries from liability for content shared by third parties, its subsection 79(3)(b) mandates removal of content if the intermediary receives notice of an unlawful act either directly or from the government.
Sondhi cautioned against misuse of this provision, stressing, “Media is media. This nuance of offline versus online is well-placed, as has been observed. But that said, this is not an omnibus license for the government to say that online is standalone, we can do what we wish.”
Earlier, in the same matter, Senior Advocate KG Raghavan, appearing on behalf of X Corp, informed the court that government officers were invoking Section 79 of the IT Act to compel the platform to block content at their discretion.
Raghavan said that numerous officers across the nation, each interpreting content based on personal judgement, were issuing takedown requests within their respective jurisdictions under this provision. He underscored that Section 79(3)(b) should not be interpreted as an autonomous legal basis for blocking content, especially when the safeguards outlined under Section 69A are absent.
He argued that Section 69A, which grants the government authority to restrict access to digital content under defined circumstances, must be distinguished from Section 79, which merely provides a liability shield for intermediaries under specific conditions.
Building on this, Sondhi reiterated, “Safe harbour is not simply an insulation but is recognition of free speech rights. An officer not palatable to his masters or for other reasons sits in his office and says, take down. The absence of a natural justice mechanism in the impugned rules makes it suspect… The absence of all the steps like post-decision hearing, etc., does it allow the rule to pass the muster of Article 14?”
The court is expected to hear the Centre’s response in the upcoming week.
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