Does Twitter perform public functions? The Sanjay Hegde case

Senior Advocate Sanjay Hegde recently challenged Twitter’s decision to delete his account permanently before the Delhi High Court, under Article 226 of the Constitution. While the question of whether or not he violated Twitter’s Terms of Service is an issue of merits to be decided in trial, he bypassed this stage by approaching a writ court seeking enforcement of his right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

Mr. Hegde’s case entirely hinges on the argument that Twitter and other social media platforms will be amenable to the writ jurisdiction of the High Court as they perform public functions. This article seeks to prove that Twitter does not perform public functions, and therefore will not be amenable to the jurisdiction of a writ court.

Mr. Hegde pleaded that Twitter and other social media platforms perform a public function “by providing a means for dissemination of and access to information”. This argument, if successful, will pave the way for users aggrieved by content moderation decisions of social media platforms to approach the High Courts directly. Any such determination would invariably dilute the sanctity of the Terms of Service that users agree to be bound by when they create their accounts.

It is settled law that private unaided companies like Twitter cannot be regarded as State under Article 12 of the Constitution, but they will be amenable to the jurisdiction of High Courts under Article 226, provided they perform a “public function”. [Zee Telefilms Ltd v. Union of India and Andi Mukta Sadguru SMVSSJMST and Ors v. VR Rudani and Ors] As there is no cut and dried formula to decide whether or not a private institution is performing a “public function”, the factors discussed below can be considered against Mr. Hegde’s arguments about Twitter’s public functions.

Deep and pervasive control

In Zee Telefilms Ltd, the Supreme Court held that the Board of Control for Cricket in India (BCCI) is not a “State” under Article 12, but is amenable to writ jurisdiction under Article 226 to the extent that it performs “public functions”. The Court held that activities such as selection of the Indian cricket team and controlling activities of the players and others involved in the game showed that the Board had deep and pervasive control over the sport of cricket in India. The Court ruled that such activities were akin to public functions and are therefore subject to judicial review under Article 226.

This ruling was reaffirmed in Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors. where the Supreme Court considered other activities of BCCI - including sale of tickets, sale of rights to exhibit matches live on TV, selection of players, umpires and other officials to represent the country in international fora etc. - to hold that BCCI exercises total control over the game of cricket. Solely due to the enormity of power exercised by BCCI, and its deeply pervasive and complete control of the game, the Court held that BCCI performs “public functions” and is amenable to writ jurisdiction under Article 226.

However, in the instant case, Twitter does not have any deep and pervasive control over social media platforms. If Mr. Hegde was disallowed from continuing on Twitter, he is free to exercise his right to freedom of speech on other platforms, so long as he adheres to the rules of those platforms.

Monopoly

In BCCI v. Netaji Cricket Club, the Supreme Court considered the monopoly status of BCCI in holding that it is amenable to Article 226. The Court observed that “the State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board's monopoly in the field of cricket”. Evidently, a person whose rights could have been violated by BCCI would not have an alternative. Which is why the Court held that BCCI is bound to follow the doctrine of "fairness" and "good faith" in all its activities.

This condition is not satisfied in the case of Twitter. Twitter does not have monopoly status in the social media market. As explained above, if a user is aggrieved by the actions of Twitter, she has the option to exercise her right to freedom of speech on any other social media platform.

Dispute is purely private

Mr. Hegde has agreed to adhere to Twitter's Rules and Terms of Service before opening his account. Twitter’s Terms of Service clearly set out that the company reserves the right to terminate or suspend the accounts of users for violation of its rules and policies. As such, Twitter does not have the duty to allow Mr. Hegde to access its platform in the event he violates its rules or policies and by extension, Mr. Hegde does not have the right to enforce his presence on the platform.

Just like any other private body, Twitter is entitled to make its own rules to govern the activities of users on its platform. When Mr. Hegde agreed to adhere to its rules and Terms of Service, he placed a restriction on himself in the interest of a collective body, Twitter. He voluntarily submerged his rights in that of Twitter’s. Which means that Mr. Hegde cannot now assail the constitutionality of Twitter Rules. [A.C. Muthiah v. BCCI. and Zoroastrian Co-operative Housing Society Limited and Ors. v. District Registrar Co-operative Societies (Urban) and Ors.]

Mr. Hegde stated in his petition that Twitter claims that it terminated his account on the ground that he violated Twitter Rules. This is merely a question of fact which cannot be determined in a court of writ jurisdiction. Consistent with the Supreme Court’s judgement in Andi Mukta Sadguru, if the rights are purely of private character, no mandamus can be issued.

Conclusion

The position of law, as it stands at the moment and as discussed above, does not support Mr. Hegde’s claim that Twitter performs public functions. However, despite what has been argued, one cannot categorically deny that Twitter performs functions with zero public element. It is important to bear in mind that even in a welfare state, individual liberty should not be compromised because of liberal interpretation of the public function doctrine.

Despite performing functions with public elements, the current law allows Twitter to circumscribe the right to freedom of speech of its users with its own right to dictate what kind of content can be circulated on its platform. And for these reasons, Mr. Hegde’s argument that social media platforms are amenable to the jurisdiction of writ courts for performing “public functions” is unconvincing.

The author is a Hyderabad-based lawyer.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.