New Delhi: Twitter’s reported delays in complying with a new set of government regulations have raised questions over the social media giant’s special legal immunity status with regard to third-party content hosted on its platform.
This immunity, referred to as ‘intermediary liability’ in legal parlance, stems from Section 79 of the IT Act and effectively shields Twitter and other major social media platforms from any responsibility in a criminal case that is filed against content that is uploaded on its platform.
Several media reports on Wednesday morning, quoting unnamed government sources, claimed that Twitter had “lost its intermediary status” due to not complying with the new IT Rules 2021.
“Twitter to lose its status as intermediary platform in India as it does not comply with new guidelines, it is the only social media platform among mainstream that has not adhered to new laws,” said a tweet put out by news agency ANI, quoting “government sources”.
The Wire has learned that the IT ministry is unlikely to put out any formal order conveying the same, with officials claiming that if any company does not comply with the new regulations after the laid-out deadline of May 26, they stand to lose their legal protection.
Over the last two weeks, the two parties have clashed over Twitter’s delays in appointing three India-based officials who will serve as the foundation for a newer grievance redressal system envisaged by the IT Rules 2021.
In its last letter to Twitter on June 5, the IT ministry had warned that the company could lose its legal immunity.
The letter noted: “The provisions for significant social media intermediaries under the Rules have already come into force on 26th May 2021 and it has been more than a week but Twitter has refused to comply with the provisions of these Rules. Needless to state, such non-compliance will lead to unintended consequences including Twitter losing exemption from liability as intermediary available under Section 7- of the Information Technology (IT) Act, 2000. This has been clearly provided under Rule 7 of the aforesaid Rules.”
Can govt revoke intermediary status?
Several legal experts however say that the actual details of whether Twitter has now opened itself to liability in criminal cases over third-party content still needs further clarification.
“During this extension period when Twitter is not in compliance, if a case against it is raised in the court by a third party, the platform would have trouble explaining their intermediary status. Just the government extending time for Twitter won’t work when it comes to interpreting the latter’s status before a court,” Prasanth Sugathan, Legal Director, Software Freedom Law Centre, recently told several media publications.
“Unless there’s an amendment in the rule itself mentioning the extension of the deadline for compliance, it won’t help Twitter in case of litigation. Only the government’s order won’t work. l learnt that other platforms had also requested for extension, but nothing came out before May 26,” Sugathan added.
The Internet Freedom Foundation (IFF), a New Delhi-based group think-tank that focuses on digital rights, says that courts will ultimately decide whether Twitter is an intermediary, and not the government.
“Even if we presume that the IT Rules are legal and constitutional, where alleged non-compliance is for appointment of officers etc., when companies like Twitter are prosecuted, courts will decide if it is an intermediary and not the government,” the IFF said in a statement.
9/ We clearly state. The IT Act or IT Rules do not contain any power or process for grant or revocation of an intermediary status. There is no immediate penalty which flows from non-compliance beyond loss of immunity determined by Courts on evidence and legal submissions.
— Internet Freedom Foundation (IFF) (@internetfreedom) June 16, 2021
Twitter failed to comply: IT minister
In a statement put out on Wednesday afternoon, IT minister Ravi Shankar Prasad said that Twitter had “deliberately” chosen the path of non-compliance, but stopped short of explicitly saying whether the company was no longer entitled to safe harbour provisions.
“There are numerous queries arising as to whether Twitter is entitled to safe harbour provision. However, the simple fact of the matter is that Twitter has failed to comply with the Intermediary Guidelines that came into effect from the 26th of May,” Prasad said.
“Further, Twitter was given multiple opportunities to comply with the same, however it has deliberately chosen the path of non compliance,” he added.
UP government case
Twitter’s delays in intimating the IT ministry with appointment details of its chief compliance officer — a separate statement sent by the company to The Wire on Wednesday morning noted that an interim officer had been retained and that the details would be shared “with the ministry directly soon” — assume greater significance in light of the Yogi Adityanath government’s recent case against the social media giant.
On Tuesday night, the state’s police booked Twitter, several Congress leaders and journalists in connection with tweets revolving around the video of an elderly man alleging assault in Ghaziabad.
The FIR, filed late last night, has specifically named Twitter INC and Twitter Communications India PVT.
The sections invoked are IPC Section 153 (provocation for rioting), 153A (promoting enmity between different groups), 295A (acts intended to outrage religious feelings), 505 (mischief), 120B (criminal conspiracy) and 34 (common intention) against them.