Back door censor: On the government’s SAHYOG portal

By informing the Delhi High Court that it cannot be compelled to come on board the Union government’s SAHYOG portal, the social media platform, X, has brought to light a mechanism that could potentially be misused by the government in its attempts to curb content on the Internet. The portal, which has been conceptualised by the government to be a platform that will facilitate coordination among law enforcement agencies, social media platforms and telecom service providers to help in quicker takedowns of unlawful content, seems to be a follow-up to an office memorandum by the Ministry of Electronics and Information Technology, in October 2023, authorising government agencies to block content, under Section 79 of the IT Act. The creation of SAHYOG was disclosed by the Union Ministry of Home Affairs (MHA) in the Delhi High Court last year, in Shabana vs Govt Of NCT Of Delhi And Ors., where the court had emphasised the need for a mechanism to enable real-time interactions between Internet intermediaries and law enforcement authorities in order to address urgent cases. Section 79 of the IT Act provides safe harbour protection to intermediaries so that they are not liable for third-party content hosted or transmitted on or through their platforms provided they adhere to certain conditions. Section 79(3)(b) provides an exception to this protection — if an intermediary receives actual knowledge or is notified by the government agency that certain content is being used to commit an unlawful act, it must remove or disable access to that content quickly, failing which it will lose safe harbour protection.

By using Section 79(3)(b) to enable the creation of what is a content takedown portal, the government — as X rightly claims in its petition — bypasses the limited safeguards under Section 69A of the IT Act, which allows content blocking only on specific grounds such as national security and public order, and mandates procedural safeguards such as a designated officer’s approval, written justification and independent review of any such blocking request. X’s claim also justifiably raises the possibility of SAHYOG being used as a tool for unchecked censorship as it will allow for multiple government agencies including Ministries, State governments and local police to have blocking powers unlike the provisions in Section 69A. If SAHYOG is used as the medium to address blocking orders, there seem to be no opportunities for challenging the order, nor are there any procedural protections that are otherwise available through Section 69A. This suggests that the implementation of the portal could be ultra vires and violates the Supreme Court’s judgment in Shreya Singhal vs Union of India. While the Delhi and Karnataka High Courts (X has also filed a petition challenging SAHYOG here) hear the cases, the MHA must provide the full details of the features of the SAHYOG portal for public perusal to ensure that it does not bypass the legal frameworks for online content regulation.