Op-Ed: What Twitter's lawsuit against the Indian government could mean for global free expression

The lawsuit Twitter filed this month against the Indian government is not a story of Silicon Valley versus a state. It is a case about universal free expression, and a much-needed example of a company wielding its power and influence in an attempt to resist government censorship.

In June, Twitter disclosed that more than 80 accounts and tweets had been blocked — at New Delhi’s behest — from being viewed by internet users in India. Twitter then took the battle for internet freedom to the courts by filing a case against the Indian government’s sweeping, disproportionate censorship orders.

India’s judiciary should decisively rule in favor of Indians’ rights to free expression and access to information. It could help tip the scales toward free expression globally.

India, which is home to the world’s second-largest population of internet users, has the potential to influence regional and global dynamics related to online speech. The country’s internet culture is lively and diverse, in no small part thanks to strong constitutional safeguards for free expression, robust net neutrality protections, and a resilient online media environment.

But as the ruling Bharatiya Janata Party has enacted its Hindu nationalist agenda, it has also pursued a multipronged crackdown on dissent.

India has oscillated between two opposing visions for the internet: one in which the internet remains global, interconnected, open and free, and another where it is held within the state’s grasp and deployed for social control.

The censorship orders also targeted tweets by Freedom House, the U.S.-based democracy organization for which we work. The tweets highlighted the findings of our annual reports, on the state of democracy and on internet freedom, and employ a map with borders disputed by Indian authorities. Restricting our tweets falls squarely in the control category.

Organizations outside India are not the only targets of these tactics. Indian human rights defenders, journalists, members of marginalized communities and ordinary users all too often face the brunt of this censorship.

Twitter’s lawsuit, filed July 5, seeks judicial review of orders issued under India’s Information Technology Act, enacted in 2000. It is a broad law that permits authorities to censor speech, including that deemed to undermine "public order” or the country’s “sovereignty” and “integrity.”

Last year, the Indian government instituted even more onerous censorship, surveillance and operational requirements on large social media companies under a legal framework commonly called the Information Technology Rules.

Under the IT Rules, major social media companies must appoint three in-country representatives to respond to censorship demands and coordinate with officials. In Twitter’s case, authorities threatened to criminally charge a Twitter employee in India if the company did not acquiesce to the takedown orders. India’s legal framework has also forced the company to maintain strict confidentiality about these requests, sharply curtailing its ability to be transparent with its users.

Concerns over judicial independence and politicization have deepened under Bharatiya Janata Party rule, and Twitter’s efforts to seek redress via the judiciary consequently may not be successful. In 2015, the Indian Supreme Court upheld the constitutionality of the law used to order Twitter to restrict the tweets of Freedom House and others. The court also ruled that the IT Act’s secretive censorship provisions were sufficiently narrow and subject to safeguards.

However, the judiciary has more recently chosen to uphold internet freedom.

A landmark 2017 Supreme Court ruling established a constitutional right to privacy and placed narrow limits on how the country's biometric identification program could be used. In 2020, in response to a months-long internet blackout in the territory of Jammu and Kashmir, the Supreme Court ruled that connectivity restrictions must be temporary, proportionate and well-reasoned. It also mandated that internet shutdown orders be publicized, an important transparency requirement that helps make officials more accountable.

Now that the judiciary has clear evidence of how India’s shadowy censorship regime can be politicized and abused, it should use this opportunity to rein in and bring more openness to the central government’s interpretation of these laws.

The outcome of the Twitter lawsuit will likely reverberate far beyond India, which is a bellwether in the ongoing battle over global internet freedom. In April, for example, India was noticeably absent from the Declaration for the Future of the Internet, a political, nonbinding agreement outlining a positive vision for the internet that has been signed by more than 60 governments in every region of the world.

A ruling in favor of Twitter could set a precedent for the litany of ongoing cases that fundamentally question the constitutionality of the most repressive provisions of India’s legal regime. It would also provide a framework for — and bolster the credence of — other strategic litigation efforts led by civil society and tech companies aimed at protecting free expression around the world.

With a better track record, India could serve as a desperately needed regional counterweight to the Chinese model of digital authoritarianism.

In contrast, affirming the Bharatiya Janata Party’s heavy-handed approach to censorship would embolden authorities to issue ever-broader takedown orders, pushing the country further from the model of a free, open and interconnected internet.

It would also risk legitimizing a censorship-by-proxy approach, in which governments threaten to strip companies’ legal protections against user-generated content — or even threaten the safety of their employees — to pressure businesses to suppress dissent or other speech deemed objectionable.

Moreover, such a ruling might dissuade Twitter and other tech companies from pursuing similar cases since their leaders may not devote the necessary resources if they don’t expect to win.

The Indian judiciary should act to protect one of democracy’s most essential cornerstones. The opportunity to fight for free expression, within and beyond India, is too critical to miss.

Allie Funk is research director and Kian Vesteinsson is a research analyst for Freedom House’s technology and democracy program.

This story originally appeared in Los Angeles Times.