Cannot decide if content is lawful before it’s reported: Twitter to HC | Latest News India - Hindustan Times
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Cannot decide if content is lawful before it’s reported: Twitter to HC

By, New Delhi
Sep 08, 2022 04:56 AM IST

In an affidavit filed before a bench of chief justice Satish Chandra Sharma and justice Subramonium Prasad, Twitter has said that it can take down content from the platform on being notified about the same by way of a court order or by notification by the appropriate agency.

Social media website Twitter has told the Delhi high court that being an intermediary it cannot decide whether content on its platform is lawful or otherwise, unless it is put to such “actual knowledge”.

Twitter’s latest affidavit was filed in a plea by a lawyer Aditya Deshwal that has sought removal of such content and permanent suspension of the concerned user’s account which had been posting objectionable and “blasphemous” posts about Hindu Gods and Goddesses.
Twitter’s latest affidavit was filed in a plea by a lawyer Aditya Deshwal that has sought removal of such content and permanent suspension of the concerned user’s account which had been posting objectionable and “blasphemous” posts about Hindu Gods and Goddesses.

In an affidavit filed before a bench of chief justice Satish Chandra Sharma and justice Subramonium Prasad, Twitter has said that it can take down content from the platform on being notified about the same by way of a court order or by notification by the appropriate agency.

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“Information is required to be actioned, when the answering respondent (Twitter) is put to actual knowledge of any content that may be unlawful and has so been determined by a court of competent jurisdiction or by the appropriate government,” Twitter’s affidavit’s read.

While the stance draws on what is known as “safe harbour” protections in the IT Act, 2000, which exempt social media companies from liability over the content posted by their users, a string of controversies in recent years show that it may be contrary to practices and policies of these companies.

All social media companies carry out content moderation, mostly automated, where they proactively exercise the right to remove content they deem illegal – in other words, they carry out an editorial function without having been alerted to the illegality of a user’s conduct, as seemingly claimed in court. Automated systems also takedown content or restrict access to users due to glitches, like it happened with the then IT minister in June, 2021.

There have also been instances when social media companies have not entirely taken down illegal or harmful content despite being flagged by users and administration, especially content in local languages.

“When Twitter takes a stand that it would not proactively filter content because they are an intermediary, the same would apply to content moderation at the time of upload,” said NS Nappinai, senior advocate and cyber law expert.

Nappinai added that the removing or content moderation after human intervention was not inconsistent with the above stand but to moderate content proactively by itself and to then refuse to remove content upon user complaints would be inconsistent.

“Whilst Twitter is within its rights to have stringent policies for use of its platform, the same cannot be lesser than or dilute the mandatory thresholds laid down under law, that is the IT Rules, 2021, in this instance. Hence any request for takedowns have to not only be evaluated based on the platform’s rules but primarily on the basis of the guidelines laid down under law. Where such law restricts uploading or transmission of content harmful to religious sentiment then the platform’s discretion takes a backseat and enforcement of the legal mandate becomes the requirement,” she added.

Twitter’s latest affidavit was filed in a plea by a lawyer Aditya Deshwal that has sought removal of such content and permanent suspension of the concerned user’s account which had been posting objectionable and “blasphemous” posts about Hindu Gods and Goddesses.

The Union government, separately, on Wednesday told the Delhi high court that it will introduce at “some point in time” a framework to regulate social media platforms, including on the issue of de-platforming of users by them.

While hearing a bunch of pleas against the suspension of accounts of several social media users, including Twitter users, the government told justice Yashwant Varma that the proposed framework would be prospective and therefore existing cases of suspension of social media accounts would have to be decided in terms of the existing regulations.

“We have checked up in terms of your lordship’s (last) order. The amendment will take place at some point in time, we don’t really know (when). It will be prospective and (therefore) these cases will perhaps have to be decided (as per the existing scheme),” central government standing counsel Kirtiman Singh submitted.

The court granted time to Centre to apprise it of subsequent developments, the court deferred hearing on the petitions till December 19 while observing, “If the scope of the regulatory power that you (Centre) propose to invoke is known, we will know what the contours of our jurisdiction are.”

In August, the court had asked the Centre to state if it was contemplating any draft regulatory measures relating to social media platforms.

During the hearing, the court on Wednesday questioned why the existing grievances on suspension and deletion of social media accounts should not be dealt with in terms of the proposed framework and said it wanted to understand the impact of any new regime on the cases before it.

“Before we enter into judgment, we also want to understand if there is any regulatory mechanism that they are proposing to implement (and) whether that would have any impact on this batch,” the court said.

In Deshwal’s plea, Twitter has said that the users take complete responsibility for the content they post online.

It said that a user enters into an agreement with Twitter when the individual signs up for the platform and this agreement is governed by the laws of the State of California. The matter has been posted for hearing on October 28.

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