There is no legislation behind the creation of Sahyog portal, X argues in Karnataka High Court
The Digipub News India Foundation, a non-profit organisation formed by digital news outlets, also made submissions before the single-judge bench of Justice M Nagaprasanna, which has been hearing the case.
X has been arguing before the court that takedown orders against social media posts should be issued under Information Technology Act section 69A, and not section 79 (3) (b), stating that the latter section, along with certain rules, allows too much leeway for government officials to strip the 'safe harbour' provisions without a judicial process. 'Safe harbour' provisions protect intermediaries like X Corp from liability for content posted on their platforms by users.
Objections have also been raised to the Sahyog portal, which the government has referred to as a way to 'automate the process of sending notices to intermediaries' but which X Corp has called a 'censorship portal'. The Centre has also argued that X is the only such intermediary not to join the portal.
Making the last submissions for X in the case before the court, senior advocate K G Raghavan stated, 'Sahyog has no statutory backing and if there was a statutory backing, the law would have provided for it… upon consideration of the structure of the IT Act, it does not appear so.' He argued that section 26(2) of the IT Act indicated the circumstances in which such a website would be created, which was not found in the subsections of section 79 of the IT Act.
He had also raised the possibility of conflict between the existing provisions, stating, 'Let us take a situation where one officer says 'I will use 79 (3) (b)'. Another officer says 'no, I should go under 69(A)' and all the procedure takes place – and the authority comes to the conclusion that it is not something we want to block… Direct conflict. This is exactly what should be prevented. 69(A) can be overridden by an officer sitting in any remote corner of the country.'
Arguing on behalf of Digipub, senior advocate Aditya Sondhi stated, 'Even a subtle effort by the State….the right of a media house to hold land etc have all been found to be indirect methods of scuttling rights.The esteemed Solicitor General had placed some extreme examples of phishing, deepfakes etc to drive home the need for this sort of regulation. Extreme examples can make bad law.'
He added, 'We need to deal with these, it cannot be disputed. But the use of the phrase 'unlawful act' in the rules being as vague…it is bereft of definition. If there is a need to fill a vacuum, it needs to be done legislatively and not in a roundabout manner.'
The court subsequently reserved its judgment in the matter.
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