Social media posts should not be removed without a response from the individuals who published them, and only when these people can’t be identified can a notice for removal be served solely to the intermediary (the social media platform), the Supreme Court observed on Monday.
While this is a preliminary view, and more in the nature of an observation, it does provide some hope to individuals who believe their content is being unfairly censored.
A bench of Justices Bhushan R Gavai and AG Masih indicated a preliminary view that when an identifiable person is involved, a notice must be issued to them before blocking the content, as it heard a petition filed by the Software Freedom Law Center India (SFLC), represented by senior advocate Indira Jaising.
“Prima facie, we feel that the rule has to be read in a manner that whenever a person is identifiable, notice should be given to them. We will consider this,” said the bench, issuing notice to the Union government and seeking a response within three weeks.
The top court’s observation signals a potential recalibration of the content moderation framework under Indian law, balancing state interests with the fundamental right to free speech.
The petition has demanded procedural safeguards under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. Filed through advocate Paras Nath Singh, the plea contends that the existing framework does not adhere to principles of natural justice, as content creators are often not notified before their posts are taken down.
On Monday, Jaising argued before the court that the existing mechanism fails to comply with the principles of natural justice, as the originator of the information is not intimated. She pointed out that notices are sent only to social media platforms like X (formerly Twitter) and other intermediaries.
“The challenge is not to the power of ‘take down’ but the fact that no intimation is given to the originator of the impugned information,” Jaising submitted. She cited Rule 8 of the 2009 Blocking Rules, which states that information should be given to the ‘person or intermediary.’ However, she contended that due to the use of the word ‘or,’ authorities often notify only the platforms, bypassing the original content creator.
The bench questioned why an organisation filed the petition rather than an individual directly affected by such takedown actions. “Some affected individual or identifiable person could have come before us. If a person is identifiable, notice is to be given to that person. If a person is not identifiable, then the notice is to be given to the intermediary. It can be read in that manner,” the court remarked.
Responding, Jaising pointed out that under Rule 16, there is strict confidentiality regarding the information or complaint received, thereby eliminating any scope for judicial review.
“The net effect is that no notice is given to me despite a curb on my right to free speech under Article 19(1),” she contended. The bench, while acknowledging the concerns, indicated that the rule should be interpreted in a way that ensures notice is given to identifiable individuals before any action is taken against their content.
“We will consider this,” stated the bench, agreeing to examine the organisation’s petition. The court subsequently issued a notice in the matter, directing the respondents to file their replies within three weeks.
The petition challenges the constitutional validity of Rules 8, 9, and 16 of the 2009 Blocking Rules and seeks their quashing or modification to ensure better transparency and procedural safeguards. Specifically, it urges the court to declare Rule 8 null and void or, alternatively, to reinterpret the term ‘or’ as ‘and’ to mandate notice issuance to both intermediaries and originators. It also calls for striking down or reading down Rule 9 to provide a notice, an opportunity for a hearing, and a copy of the interim order to content creators before a final blocking order is passed.
Further, the plea seeks the prescription of a standardised notice format that would disclose relevant details to enable affected persons to respond effectively. It also demands disclosure of instances where blocking powers under Rules 8 and 9 were exercised without prior notice to content creators or intermediaries. Additionally, the petition calls for greater transparency in the Review Committee’s findings under Rule 14 and records related to proceedings under Section 15 of the IT Blocking Rules.