Stand up comic Kunal Kamra and Senior Advocate Haresh Jagtiani have approached the Bombay High Court challenging the validity of Central government’s Sahyog portal - an online platform used to issue content takedown orders to online intermediaries like X, Meta, YouTube etc.
They have also challenged Rule 3(1)(d of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules) pursuant to which the Sahyog portal was established.
As per the amendment to Rule 3(1)(d), intermediaries must remove or disable access to any information used to commit an unlawful act within thirty six hours of receiving “actual knowledge.”
It must clearly specify the legal basis, the relevant statutory provision, the nature of the unlawful act, and the exact online location of the content.
The Sahyog Portal has been developed as a dedicated cyber portal to automate this process to facilitate quick removal of unlawful online information, data, or communication links.
According to Kamra's petition, the portal enables government to unilaterally block/ take down content on internet without complying with mandatory legal requirements including the issuance of notice to the originator of the content and affording a hearing to the affected party.
These mandatory legal requirements have been held by the Supreme Court to be necessary safeguards that ensure the constitutionality of such provisions, it has been pointed out.
As per the plea filed by advocate Meenaz Kakalia,
"Given the conspicuous absence of such safeguards, Rule 3(1)(d) of the IT Rules and the Sahyog Portal are rendered ultra vires the Information Technology Act, 2000 and contrary to categorical judgments of the Supreme Court and this High Court."
According to Kamra, Rule 3(1)(d) and the Sahyog Portal render all information on the internet vulnerable to arbitrary takedowns, provide for no remedy against such action, and effectively give thousands of government officers at the Central and State level unchecked power over information flow on the internet.
"It strikes at the heart of democracy, and a citizen's right to information," the plea states.
Further, Rule 3(1)(d) of the IT Rules and the Sahyog Portal are also ex facie unconstitutional, as they enable the blocking or takedown of information on internet platforms on wholly vague grounds of the information being "unlawful" or in violation of any act/ law administered by the Central/ State governments.
"Such powers amount to an unconstitutional and unreasonable restriction on the freedom of speech, that go beyond the constitutionally permissible grounds that have been exhaustively enumerated under Article 19(2) of the Constitution," it has been contended.
According to the plea, orders for blocking or disabling access to information on the internet can only be issued under Section 69A of the IT Act read with the 2009 Blocking Rules.
Earlier, X had challenged the validity of Sahyog portal before the Karnataka High Court.
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