X Corp challenges Section 79 of IT Act in Karnataka HC, cites arbitrary takedown powers

New Delhi:  X Corp (formerly Twitter) has questioned the legal framework allowing content takedowns under the Information Technology (IT) Act, arguing before the Karnataka High Court that Section 79 enables government officers to block content without proper oversight or accountability.

Senior Advocate K G Raghavan, representing X Corp, submitted that under Section 79 of the IT Act, thousands of government officers across jurisdictions have been authorised to issue takedown directives based on personal interpretation of what is deemed “unlawful” or “immoral”.

“Unlike Section 69A, which mandates a structured decision-making process through a committee and requires reasons to be recorded in writing, Section 79 permits individual officers to block content without any institutional oversight. This creates arbitrary, inconsistent enforcement and violates Article 14 of the Constitution,” Raghavan said.

He further argued that Section 79(3)(b) should not be interpreted as an independent source of power to block content. Instead, it should be read in conjunction with Section 69A, which has a more defined legal process.

“Can a government officer pass a blocking order from the confines of their office without oversight? The answer is no. Such actions reduce the law to a matter of personal opinion – ‘I say so, therefore it is so’,” he added, cautioning against what he called the “opaqueness and arbitrariness” of the current system.

Raghavan also stressed that cultural perceptions vary across regions and that subjective enforcement could lead to inconsistent outcomes.

X Corp clarified that it is not seeking exemption from Indian law. “We are not saying we are above the law. We are saying that procedural safeguards are missing under Section 79 that are otherwise present under Section 69A,” he said. He warned that the current reading of Section 79(3)(b) could leave the platform exposed to legal penalties, including those under Section 45 of the IT Act.

Referring to past Supreme Court judgments, Raghavan argued that freedom of expression standards must apply uniformly across all forms of media, including online platforms. However, Justice N Nagaprasanna noted that the case in question was ruled on in the context of the 2011 Rules, which have since been replaced by the IT Rules 2021, a set of regulations not yet reviewed by the apex court.

Raghavan responded by referencing a Bombay High Court verdict, which struck down parts of the 2023 amendments to the IT Rules, particularly clauses relating to government-appointed Fact Check Units.

He also challenged Rule 3(1)(d) of the 2021 Rules, which permits the government to order intermediaries to take down content, calling it a breach of the separation of powers and lacking in procedural safeguards.

While acknowledging that foreign entities are not protected under Article 19 of the Constitution, Raghavan insisted that Article 14, which guarantees equality before the law, is applicable. He contended that laws failing to meet procedural fairness standards under Article 14 are unconstitutional, regardless of whether the entity involved is Indian or foreign.

Solicitor General Tushar Mehta, appearing for the Union government, countered the arguments by stating that X Corp’s perspective was overly focused on its own operations. “If someone posts defamatory content and the intermediary fails to act on it, the aggrieved person is left with no immediate remedy. A traditional media house like the ‘Times of India’ would be held accountable. Shouldn’t intermediaries, who enjoy safe harbour protection under Section 79(1), also have responsibilities?” he asked.

The matter will continue on July 11, with the Centre expected to present its full response on July 17.