The Punjab and Haryana high court has held that intimation of the take down/ blocking order of a social media channel/page communicated to the platform by the government must be sent to the user also.
The order came from the bench of justice Tribhuvan Dahiya on a plea from Haryana 24 News Network Private Limited, a news plate form in Haryana, which approached high court against Meta acting under the Information Technology Act 2000, blocked its page in India on Haryana police order on August 21.
The court said that under the 2000 law and rules made thereunder Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, there is no provision for giving any hearing to the user prior to issuance of intimation to the intermediary though such user will be adversely affected by removal of data or information or blocking access to his page upon intimation by the government.
The court noted that even though the issue of giving prior information to the user before blocking a page is not an issue under consideration in this case. “Nevertheless, the aspect of providing post-decisional hearing before the grievance officer (of the platform) is under consideration. Any such hearing would essentially require that the user, who has been proceeded against under clause (d) to sub-rule (1) to Rule 3, has knowledge about the action that has been taken; he is to be made aware of the intimation, its contents and the material relied upon to issue the same,” the court observed.
“In its absence, he cannot defend himself and the very purpose of providing the grievance redressal mechanism under the rule gets defeated. Every procedure established by law has to be fair and reasonable, which can only be when it has not violated the basic tenets of natural justice, which includes the right to a fair hearing,” the court asserted.
The bench agreed that sub-rule (2) to rule 3 of the 2021 rule does not explicitly lay down the requirement for the government or its agency to notify the user/person responsible for uploading the data or information on the social media page before sending the intimation. “..it is an essential obligation ingrained in the principles of natural justice and has to be read into the Rule. Accordingly, a copy of the intimation must be furnished to the user when it is sent to the intermediary,” the court said adding that this would make the procedure compliant of the primary tenets of natural justice and constitutionally valid.
In the case in hand, the court found that the order to block the page was issued by senior superintendent of police, Yamunanagar, who is not even authorized as per the IT rules. The court did not accept the government argument that powers seeking blocking of a page were relegated to the SSP. The court said that action was in violation of the 2021 rules under the law that require that the authorised officer shall not be below the rank of IGP. Now, the SSP have been told that the social media page be restored within 24 hours of certified copy issued by the court.