Facebook tells Delhi HC Article 19 cannot be invoked against them

Meta Platforms said that Instagram is a free and voluntary platform, governed by a private contract, and the petitioner user has no fundamental right to use it.
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Social media company Meta Platforms, Inc the parent organisation of Instagram and Facebook — told the Delhi High Court that the rights under Article 19 (free speech) of the Constitution of India cannot be invoked against it by a user and that it is a private entity which does not discharge a public function.

In its affidavit filed in response to a writ petition against an alleged disabling on an Instagram account, the US-based company said that the Instagram Service is a free and voluntary platform, governed by a private contract, and the petitioner user has no fundamental right to use it. The high court is seized of several petitions challenging the suspension and deletion of several user accounts by various social media platforms.

In March, in response to another petition against the suspension of a Twitter account, the Union government had told the high court that an individual's liberty and freedom cannot be waylaid or jettisoned in the slipstream of social and technological advancement and the social media platforms must respect the fundamental rights of the citizens and conform to the Constitution of India.

It had emphasised that a significant social media intermediary must be held accountable for subjugating and supplanting fundamental rights like the right to freedom of speech and expression, else it would have dire consequences for any democratic nation.

In its affidavit filed in the instant case, Meta contended that it is not obligated to carry out a public duty and when action is taken against a user in accordance with the private contract between them, it results in a contractual dispute between two private parties.

Whether its alleged enforcement actions were improper is governed by the Instagram Terms of Service and Community Guidelines which constitute the private contract and Meta is thus not amenable to the writ jurisdiction of the high court under Article 226 of the Constitution, the social media giant said.

The affidavit added that the petitioner's attempt to have the court invoke its writ jurisdiction 

is particularly inappropriate as the relationship between Petitioner and Meta arises from a private contract and the alleged dispute at issue is a contractual one and Article 19 rights cannot be invoked against a private entity such as Meta,” said the affidavit.

“Petitioner's attempt to assert Article 19 rights against Meta, a private entity, is improper, contrary to law, and ought to be denied...Meta is not discharging a public function that would make it amenable to this Hon'ble Court's writ jurisdiction under Article 226,” it added.

In the affidavit, Meta further stated that contrary to the petitioner's allegations, it does not enjoy a monopoly in the domain of information dissemination or carry out any sovereign function, and the law only requires intermediaries to provide an opportunity to appeal after the action has been taken against any account and not hear them before action is taken.

Petitioner has not alleged a single fact demonstrating that the Instagram Service, or Meta itself, satisfies any of the above tests (of public function). To the contrary, (i) Meta is not obligated to carry out a public duty, (ii) the Government does not exercise any control over Meta's management nor its day-to-day functioning, and (iii) Meta has not been granted exclusive rights to carry on any activity, nor has Meta been conferred monopoly status under the law, (iv) Meta does not carry out any function similar or closely related to functions that are performed by the State in its sovereign capacity, and (v) Meta voluntarily provides the Instagram Service, and is not obligated to do so, the affidavit said.

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