Further adding to these concerns is the fact that the last clause of the Blocking Rules explicitly makes transparency in the blocking regime an impossibility. The clause reads: “strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.” In other words, while the phrasing of section 69A of the IT Act and the attendant rules raise a range of concerns regarding their impact on freedom of expression, those same rules also make it impossible for us to assess whether such concerns are indeed justified or whether the purposes for which content is restricted are in fact wholly legitimate. Moreover, at no point in the process do the section or the rules require the intervention of a judicial body. The crucial role that courts should play, and have played, in democratic societies in decisions that curtail the right to freedom of speech has been disregarded. While content bans in the offline world have generally been made public in India, it thus becomes almost impossible for the public to challenge online censorship undertaken under this section in court if so desired. The only time at which a challenge becomes possible is when a blocking order is leaked. For example, earlier this year, the government used its powers under this section to ask Twitter to block 115 handles for “propagating objectionable contents.” The handles included a range of accounts that allegedly take controversial positions regarding the conflict in Kashmir. The government’s request became public knowledge after Twitter, in disregard of the Blocking Rules under section 69A, emailed all account holders involved to inform them that “an official correspondence” was received which claimed that the content of their accounts violates Indian law. When journalists followed up on the incident with Twitter, Twitter linked to a copy of the request that was available on the internet. According to this document, the request for blocking was done in “the interest of public order as well as for preventing any cognisable offence relating to this referred in section 69A of the IT Act.”100 The constitutional validity of section 69A of the IT Act and the validity of the rules made under that section were challenged in Shreya Singhal v. Union of India. The petitioners questioned, among other things, the absence of a guaranteed hearing of the author of the content before a decision is made; the limited procedural safeguards when compared 100 Saha, A. (2017, 4 September). Citing official complaint, Twitter tells Kashmiri handles they are breaking laws. Hindustan Times. http://www.hindustantimes.com/india-news/twitter-tellskashmiri-handles-they-are-breaking-indian-laws-points-to-officialcomplaint/story-u33dt3gtkKvUjZtpId13fJ.html to those provided in the case of offline bans (under section 95 and 96 of the Criminal Code of Procedure); and the confidentiality provision. However, the court rejected the petitioners’ arguments, on the grounds that the provision is narrowly framed and that a number of procedural safeguards are foreseen, even if those are different from safeguards for offline content. The constitutionality of both the provision and rules was upheld. Intermediary liability The Indian authorities do not always draw on section 69A to block content. Figures reported by Google in its Transparency Report indicate that the company receives a substantial number of takedown requests from Indian government officials. In 2016, the Indian government made 575 such requests, asking for 5,370 pieces of content to be taken down.101 Only 52 of those requests, relating to 196 items, were made by the judiciary. The rest came from the executive branch of government. Google complied in 14% of cases. Requests such as those reported by Google in its transparency reports are frequently made under section 79 of the IT Act and its attendant rules, the Intermediary Guidelines Rules 2011, both of which concern intermediary liability and safe harbour. Intermediary liability in the IT Act The IT Act defines an intermediary as: [A]ny person who on behalf of another person receives, stores or transmits that record or provides any service with regard to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes. The current version of section 79 was included in the IT Act in 2008; following a number of controversies, section 79 was reframed at that time to more clearly define and circumscribe the circumstances under which intermediaries could become liable. According to the section in its current form, intermediaries are not liable for content they provide access to, provided they do not initiate or select the receiver of the transmission; do not select or modify the information contained in the transmission; and do delete content “expeditiously when receiving actual knowledge or when being notified by the appropriate government or its agency.” When this 101 Google Transparency Report: Government requests to remove content. https://www.transparencyreport.google.com/ government-removals/by-country/IN 68 / Unshackling Expression