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HC raps Twitter over non-compliance with new IT rules
Justice Rekha Palli said that it was “unacceptable” that the social media intermediary has not specified the third-party contractor via whom the services of the CCO and the RGO have been taken.
The Delhi high court on Wednesday pulled up micro-blogging site Twitter for appointing a “contingent worker” as its Chief Compliance Officer (CCO) and Resident Grievance Officer (RGO) and gave it “a last opportunity” to “wholeheartedly” comply with the new Information Technology (IT) Rules.
Justice Rekha Palli said that it was “unacceptable” that the social media intermediary has not specified the third-party contractor via whom the services of the CCO and the RGO have been taken. The court also expressed displeasure on the delay of appointment of nodal contact officer (NCO).
Under Rule 3 of the IT Rules introduced on February 25, a social media intermediary was required to put in place a three-tier grievance redressal system and appoint a chief compliance officer, a nodal contact person and a resident grievance officer by May 25.
Twitter, in an affidavit filed on July 13, told the court that it has appointed an Indian resident as the CCO and RGO whose services were taken via a third party contractor. They would perform their functions and duties as per applicable law, it said adding that it would require two weeks to appoint a nodal contact officer (NCO) through a third party.
Twitter asked for eight weeks to appoint the CCO, RGO and NCO as a direct employee and on a permanent basis.
“I have a problem with the word ‘contingent worker’ because it gives the impression that it is based on some contingency. You are not using interim, but you are using a contingent. It is even worse. We do not know who this third party contractor is. I am not happy with this affidavit anyway,” Justice Palli said.
“I don’t know what your company wants to do. If you have to comply, it has to be done whole-heartedly. You have not specified the timeline by which the nodal contact officer will be appointed,” the court said.
The judge, while rejecting Twitter’s affidavit, said that it showed “total non compliance with the rules” and gave one week to file their fresh stance on the compliance of the IT Rules.
“Last opportunity is given to file a better affidavit clearly setting out the details of the person who is stated to have been appointed as the CCO and RGO. Twitter will also give reasons why NCO was not appointed till now and by when could he be appointed,” the court noted in its order.
“Twitter continues to make every effort to comply with the new IT Rules 2021. We are committed to keeping the honourable court and the Government of India apprised of the progress at every step of the process,”Twitter said in a statement.
The case deals with a plea by a lawyer Amit Acharya, who through his counsel Akash Vajpai, contended that Information Technology Rules came into effect from February 25 and Union government gave three months to every social media intermediary, including Twitter, to comply with them.
However, even after the lapse of three-month period on May 25, no resident grievance officer was appointed by Twitter to deal with complaints regarding tweets on its platform, due which, he could not take action against two alleged offensive tweets by TMC MP Mohua Moitra and journalist Swati Chaturvedi, Acharya contended through a petition filed on May 28.
Twitter responded saying that the tweets in question were not offensive according to its policies.
In an affidavit on May 31, Twitter claimed it had already appointed a RGO on May 28. Subsequently, on July 6, the court pulled up Twitter for not informing it that this appointment was on an interim basis, and not sharing information that the person resigned shortly after the appointment. Twitter was given time till July 8 to inform the court on the status of the appointments. And then, on July 8, it was given time till July 13 to file a copy of an affidavit on the appointments. The court also asked the person appointed as the resident grievance officer as well as the chief compliance officer, Vinay Prakash to file his own affidavit, also by July 13.
Both of those came up for discussion on Wednesday.
“The word ‘interim’ had been employed earlier to denote that the three roles, as of now, are or were not being filled by employees, but by contingent or other workers, and that Respondent No. 2 (Twitter) is endeavoring to make offers of employment for all the three roles. This having been clarified, the word ‘interim’ will not be used anymore,” Twitter said in its July 13 affidavit.
On Wednesday, senior advocate Sajjan Poovaya, appearing for the social media intermediary, told the court that on July 27, they have verbally appointed a nodal contact officer but formal paperwork and announcement are yet to be done.
However, the court said that mere appointment of the officers as “contingent workers” is “not acceptable”.
“This is not in compliance that you have appointed a contingent worker. When you file something, it should be completely clear....This is not acceptable. I will have the matter after one week or 10 days. I am giving you a long rope but please don’t expect the court to go on and on,” the court said.
It also said that there should be “seriousness” with the post of the Chief Compliance Officer (CCO) who under Rule 4 (1) (a) of the IT Rules, 2021 holds a key managerial personnel or a senior employee.
“You have appointed Mr Vinay Prakash who is 31 years old. He (in his affidavit) in fact is very categoric that ‘I am not an employee and have been engaged as a contingent worker’. So, this in itself is in the teeth of the rule,” the court said.
Additional Solicitor General (ASG) Chetan Sharma, appearing for the Centre, said that there has been an “absolute abject non-compliance” of the IT Rules on part of Twitter. He said that the nodal contact person has yet not been appointed and “we are hunting for that man”.
“It has been months since they were to comply. The Union and everybody is before a constitutional court but they cannot have it so easy. Either they comply wholeheartedly or they say ‘we are not complying’,” Sharma said, adding that the company earned $7 million dollars in 2019 from India.
The counsel for the petitioner raised objections on the appointments and said that one person cannot hold more than one position as different officers would have different functions.
Twitter, through its lawyer, sought time to address the issues raised by the court following which the matter was posted for hearing on August 6.
Centre and Twitter have been locking horns over the compliance of the IT Rules. Twitter had said it was committed to India as a vital market, but criticised the new IT rules and regulations that it said, “inhibit free, open public conversation”.
Responding to Twitter’s comments, the Centre had said the messaging platform was levelling baseless and false allegations to defame India and dictating terms to the world’s largest democracy. The Centre has said that only WhatsApp and Facebook have complied with the guidelines of appointing three separate officers for the grievance redressal.
The ministry has asserted that the social media firm has failed to comply with the guidelines, which can result in it losing the safe harbor protection granted to intermediaries under the IT Act.
Twitter, in turn, has raised concerns about the safety of its employees in India and flagged intimidation by the police. There have been several instances of confrontation between the social media firm and the government over orders to block access to content and marking of posts by BJP leaders as manipulated media.
On July 22, the union government had informed the Rajya Sabha that even though Twitter was non-compliant of the IT Rules till May 26, it had subsequently appointed an RGO and CCO and submitted its first compliance report in June this year.
