“My whole point of view is that this opacity completely empowers people to censor speech without any restriction whatsoever and without any accountability whatsoever. That is expanding at a scale and pace,” said Nikhil Pahwa, Founder and Editor-in-Chief of MediaNama, during the second session of MediaNama’s discussion on ‘IT Rules and the Future of Online Speech’ in India on April 23 in Delhi.

The panel, titled ‘MeitY’s Expanding Mandate: Rule 3(4), the timelines for content takedowns, and Safe Harbour in the context of Shreya Singhal and the IT Act’, saw panellists discuss the need for greater transparency in India’s online takedown and blocking regime. They highlighted opacity in legal processes, contradictions in confidentiality rules, and proposals for public disclosure of takedown notices.

“No transparency”: Government can block content without explanation

Vasudev Devadasan, Lawyer and Master of Law Candidate at the University of Melbourne, said the current system gives the government wide powers to block content without oversight or transparency.

“The government can, by notification, with no transparency, for almost any content on the internet, block your content, and you don’t know why it’s blocked, you don’t know who to approach,” he said.

Devadasan contrasted this with actions in the physical world, where arrests or business takeovers require judicial oversight. “But with respect to speech, we seem to have accepted that the government can just block speech like this,” he said.

He added that the issue was not limited to isolated posts. “As we’ve heard in the first panel, it’s not individual random posts with three likes only. It’s entire businesses that are being blocked effectively,” he said. 

Different confidentiality requirements in Section 69A and 79(3)(b)

Snehashish Ghosh, founder of TechNiti, said transparency could be the “silver bullet” for fixing issues in both Section 69A blocking orders and Section 79(3)(b) takedown notices. Ghosh pointed to a contradiction in the legal framework. He said the Supreme Court’s Shreya Singhal judgment required notice to users in Section 69A proceedings, but Rule 16 of the Blocking Rules imposed strict confidentiality.

“One thing Shreya Singhal did with 69A was to talk about how the notice needs to be given to the user. But at the same time, IT Rules 16 talks about strict confidentiality regarding the request from the company, but the communication, as well as the action taken thereof. So it doesn’t know what to do,” he said.

He noted that Section 79(3)(b) did not contain the same confidentiality requirement. “One interesting piece which is lacking in Section 79(3)(b), and deliberately so, is that there is no strict confidentiality requirement. Therefore, there can be more transparency in terms of the nature and types of requests sent,” he said.

Calls for a public repository of takedown orders

Devadasan said, “One interim solution that I potentially see is to make the orders public.” He said intermediaries should proactively disclose notices they receive. “The approach that I would have taken is just to start uploading the orders,” he said.

Devadasan questioned the legal basis for secrecy under Section 79(3)(b). “What is it in the 79(3B) order that is confidential. There’s nothing that allows it to be confidential. Why not put it out there? Then potentially we’ll see, one, the scale of the censorship and what the censorship is targeting,” he said.

Questions over who can issue takedown notices

Rakesh Maheshwari, former Senior Director and Group Coordinator at MeitY, said the government should publish a list of authorised officials and notifications who can send takedown notices. “There should be a consolidated list of such notifications which should be made available,” he said.

He added that because the Indian Cyber Crime Coordination Centre (I4C) acts as an aggregator, “maybe the same list should continue to be available there so that at least people know as to whether you are authorised or not by which notification and whether it is within the law or not.”

Maheshwari said users and affected parties also need clearer pathways to challenge takedowns. “The person should get to know where this person now needs to approach in case he or she is aggrieved because of this decision”. 

Opacity at scale through the Sahyog portal

Chatterjee cited figures disclosed in court. “The MHA(Ministry of Home Affairs) came online, has gone on affidavit, and it is recorded in the order, that 16,000 police stations have been enabled through the Sahyog portal to send lawful takedown requests,” he said.

Pahwa questioned accountability when the notices themselves may be unlawful. “Who’s going to hold the person in one of the 16,000 police stations accountable for pursuing those orders, which is an illegal order, which is coming from a person who is representing the government?” he asked.

MediaNama hosted this discussion with support from Meta, Amazon, and Google. Our community partners for this event are Internet Freedom Foundation (IFF), Centre For Communication Governance (CCG), and Digipub.

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