Greatest threat to free speech not from government but from private oligopolies like X corp: Centre to Karnataka HC

The Union government on Thursday told the Karnataka High Court that X Corp (formerly Twitter) cannot claim fundamental rights under the Indian Constitution to challenge the regulatory framework governing social media intermediaries.

In detailed written submissions filed by Solicitor General Tushar Mehta, the Centre defended the SAHYOG portal and Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021.

He argued that both are constitutionally valid and necessary given the evolving nature of online communication.

Pertinently, the Centre claimed that the greatest threat to free speech is not from the government but from unregulated private entities like X Corp.

The government warned that unchecked algorithmic control by private platforms poses a serious threat to democratic discourse.

"In the modern world, the greatest threat to free speech may not come from the government, it may come from the unregulated private oligopolies of entities like the petitioner (X Corp),” the written submissions said.

The Centre expressed concern that users are often trapped in “echo chambers” created by algorithms that prioritise engagement over accuracy, further justifying regulatory oversight.

The case was filed by X Corp alleging that the SAHYOG portal bypasses the statutory safeguards under Section 69A of the IT Act and infringes its rights. The Centre has contested these claims on grounds of law, constitutional limitations and maintainability.

Defending the creation and use of SAHYOG, the Centre said:

“The government’s creation of the ‘SAHYOG’ portal is simply an efficient way to handle notices under Section 79(3)(b), ensuring quick action against illegal online content.”

It said the portal was developed ensuring authenticity, cooperation, and prompt action between authorities and intermediaries and that major intermediaries like Google, Microsoft, Amazon, and soon Meta are onboarding, with positive reception overall.

The Centre also rejected X Corp’s claim that SAHYOG bypasses Section 69A.

“Section 69A pertains explicitly to governmental orders for blocking content with serious penal consequences for non-compliance, whereas Section 79 deals with due diligence obligations to maintain safe harbour protections,” it contended.

The Union government also took strong exception to X Corp’s claim that it is entitled to safe harbour protection under Section 79 of the Information Technology Act as a matter of right.

In its written submissions, the Centre contended that safe harbour is not an absolute entitlement but a conditional statutory privilege that can only be retained if the intermediary complies with its legal obligations.

“It is submitted that the concept of safe harbour inherently includes rigorous responsibilities, requiring intermediaries to promptly and effectively remove or disable unlawful content upon receiving notice,” the Centre stated, adding that “the Petitioner’s attempt to present safe harbour as an absolute right, devoid of any corresponding duties, fundamentally misconstrues the very basis of this legal protection,” it was submitted.

On the challenge to Rule 3(1)(d) of the 2021 IT Rules, the Centre clarified that this provision merely defines the scope of due diligence that intermediaries must observe to retain safe harbour.

“Rule 3(1)(d) is simply a provision which defines the rules of conduct a responsible social media intermediary must be abide by failing which it would not be able to avail statutory immunity under Section 79,” the submission read.

According to the government, non-compliance with the Rule does not amount to a content blocking order but only results in the lifting of statutory immunity—a distinction the petitioner was attempting to blur.

The government also contested the maintainability of the petition, contending that X Corp has no constitutional standing in India.

“The Petitioner, being a foreign company incorporated in the United States, does not have the locus standi and/or the fundamental rights pleaded to file this writ petition,” the submissions said.

The Constitution guarantees fundamental rights to Indian citizens and to a limited extent to companies incorporated in India, it was submitted.

“Since the petitioner is neither a natural person nor a company incorporated in India, it cannot invoke fundamental rights such as those guaranteed under Articles 14, 19, and 21.”

The Centre also argued that social media platforms must be treated differently from traditional media due to the unique architecture of the internet.

With more than 97 crore internet users in India and the algorithmic nature of content dissemination, social media presents both opportunities and grave risks, the government told the Court.

“The internet never forgets,” the government stated, pointing to the permanence, virality and amplification of online content.

“This permanence can magnify harm: a defamatory statement or dangerous rumour online can resurface repeatedly, rekindling its adverse impact on reputation or public order long after a traditional news cycle would have ended.”

Citing the Supreme Court’s judgment in Ajit Mohan v. Legislative Assembly, NCT of Delhi, the government reiterated that intermediaries can no longer claim to be neutral platforms.

“Platforms can no longer hide behind claims of neutrality or ignorance. The algorithms used by intermediaries actively curate and boost content, shaping public opinion and significantly influencing social harmony or disorder,” the submission read.

The submissions warned that unchecked algorithmic control by private platforms poses a serious threat to democratic discourse.

"In the modern world, the greatest threat to free speech may not come from the government, it may come from the unregulated private oligopolies of entities like the Petitioner.”

The Centre expressed concern that users are often trapped in “echo chambers” created by algorithms that prioritise engagement over accuracy, further justifying regulatory oversight.

In support of its position, the Centre relied on recent U.S. Supreme Court decisions, including Moody v. NetChoice, TikTok v. Garland and Free Speech Coalition v. Paxton, which acknowledged that online platforms engage in curatorial functions and can be regulated differently from traditional media.

The Centre noted that the US Supreme Court itself has moved beyond its earlier observations in Reno v. ACLU (1997), recognising that the internet is no longer a passive medium.

“Contrary to what was held in Reno… the internet today is the single most ‘invasive’ media of all,” the government said.

The government submitted that its regulatory approach balances competing constitutional interests — those of content creators, recipients, and society at large. It said that the provisions under challenge have very harmoniously balanced the interest of all stakeholders while securing larger public interests.

During the course of the hearing today, Karnataka High Court issued a strong caution against the use of artificial intelligence (AI) in judicial decision-making, calling it a serious threat to the legal profession.