Govt says Twitter not entitled to safe harbour, experts argue otherwise

Union minister Ravi Shankar Prasad on Wednesday said Twitter has “deliberately” chosen not to comply with the new social media and intermediary guidelines even as officials said the company will lose its legal protection from penal action for third party content over the non-compliance

Union minister Ravi Shankar Prasad on Wednesday said Twitter has “deliberately” chosen not to comply with the new social media and intermediary guidelines even as officials said the company will lose its legal protection from penal action for third party content over the non-compliance.

Representational Image. (File photo)

“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. Further, it was given multiple opportunities to comply with the same, however it has deliberately chosen the path of non-compliance,” Prasad wrote on Twitter.

Prasad defended the guidelines and said they were brought to counter the menace of fake news. “The culture of India varies like its large geography. In certain scenarios, with the amplification of social media, even a small spark can cause a fire, especially with the menace of fake news. This was one of the objectives of bringing the Intermediary Guidelines,” he said.

Prasad called it astounding that Twitter, “which portrays itself as the flag bearer of free speech”, has chosen the path of “deliberate defiance when it comes to the Intermediary Guidelines.” He hit out at the company for “arbitrarily” deciding which posts to mark as “manipulated media”.

Twitter has flagged posts by several ruling Bharatiya Janata Party leaders that accused the Congress of defaming Prime Minister Narendra Modi.

Prasad said what happened in Uttar Pradesh was “illustrative of Twitter’s arbitrariness” in fighting fake news. “While Twitter has been over enthusiastic about its fact checking mechanism, it’s failure to act in multiple cases like U.P. (Uttar Pradesh) is perplexing as well as points towards its inconsistency in fighting misinformation,” Prasad said. ”If any foreign entity believes that they can portray itself as the flag bearer of free speech in India to excuse itself from complying with the law of the land, such attempts are misplaced.”

Prasad was apparently referring to the posting of an allegedly manipulated video of an elderly Muslim man’s assault in Uttar Pradesh. The Uttar Pradesh Police have registered a First Information Report (FIR) against Twitter, news portal wire.in, and seven others for allegedly inciting rioting and promoting enmity between religions by promoting the video. Twitter has been named in the FIR for allegedly failing to prevent the video from going viral and helped in its promotion and circulation.

Prasad’s comments came hours after an official told HT that Twitter will be considered an intermediary once it follows the new Information Technology (IT) rules. The official said Twitter will no longer be protected from penal action under Section 79 of the IT Act, which absolves social media firms of liability for third-party content, if it did not do so.

“Now, if there is a case in court, Twitter cannot seek safe harbour under the Information Technology Act. In any case, filed after May 26, Twitter cannot say it is an intermediary and claim exception,” the official said, requesting anonymity

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules were notified in February and came into force on May 25.

The official said, as a gesture of goodwill, the government gave Twitter extra time to comply with the rules. But Twitter has failed to meet even its own deadline of a week to make the appointments as per the new rules, the official said. The official added that details of the compliance officer’s appointment were yet to be shared with the government.

Raman Chima, Asia Pacific policy director, Access Now, a digital civil rights organisation, said the government does not have the sole authority to device how intermediaries are able to make use of the legal protection granted to them by Parliament. “Whether the government’s rules are constitutional and whether partial or incomplete compliance impacts this legal immunity provided in law will ultimately be decided by judges, and not just by the executive branch.”

Digital advocacy rights group Internet Freedom Foundation (IFF) said the “so-called intermediary status” is actually a technical qualification as per criteria under Section 2(1)(ua)(w) of the IT Act. “As per Section 79, intermediaries are immune from liability/penalty if they comply with legal takedown requests of user posts from courts & public authorities. As we explain, this is threatened by the IT Rules, 2021,” IFF tweeted. “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.”

IFF added that there is no power or process for the 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,” tweeted IFF.

Twitter on Tuesday said it has appointed an interim chief compliance officer and the details of the appointment will be shared directly with the IT ministry. The decision came after the government gave Twitter one last chance to comply with the new rules as the microblogging platform did not make immediate appointments of key personnel, mandated under the new guidelines that came into effect on May 26.

Twitter assured the government last week that it is in the advanced stages of finalising the appointment of the chief compliance officer and would submit additional details within a week.

A Twitter spokesperson on Tuesday said the company continues to make every effort to comply with the new guidelines and is keeping the IT ministry apprised of progress at every step of the process.

Twitter this month conveyed to the government that it was “committed to complying with the new rules”, even as it raised concerns regarding the safety of its employees in the country and intimidation by the police. It sought a week to comply with the new guidelines after the government issued it an ultimatum saying Twitter would have to face “unintended consequences” including losing its legal protection from criminal liability for user content.

The guidelines require companies such as Twitter, WhatsApp, and Facebook to change how they regulate content, appoint nodal officers for compliance and grievance redressal, and adopt features such as traceability of messages and voluntary user verification.

Twitter and the government have had disagreements over content takedown orders and the company’s actions against prominent people linked to the ruling Bharatiya Janata Party for violation of its terms of use.

Against this backdrop, the new IT rules hardened the stand-off last month, with Twitter earlier asking for three months to comply, raising concerns over the “core elements” of the norms, and flagging potential threats to the safety of its employees after a visit by the Delhi Police.

Google, WhatsApp, and Facebook have shared the details of the officers with the government. The new rules have been contested by several parties, including WhatsApp which has argued that the traceability provision mandated in the guidelines would violate end-to-end encryption.