New Delhi: Union minister for electronics and information technology Ravi Shankar Prasad on Wednesday said Twitter has deliberately chosen to not comply with the country’s new social media and intermediary guidelines, even as officials in his ministry said that this could make the social media company lose the protection it enjoys as an intermediary, although experts said whether or not the company is an intermediary will be decided by the courts, not the ministry.
The guidelines came into effect on May 26. The rules are in place, and whether they have been violated or not, the experts added, is also something the courts have to decide.
A Twitter spokesperson on Tuesday said that the company is “making every effort” to comply with the guidelines, and has appointed a compliance officer as required, but the IT ministry did not shed light on this.The company did not make any further statements on Wednesday. A Twitter spokesperson declined to respond to requests for comment.
Prasad himself did not directly comment on the intermediary protection issue, but lashed out at the social media company for not following rules. “There are numerous queries arising as to whether Twitter is entitled to safe harbour provision,” Prasad wrote on Twitter and on Koo, a microblogging service like Twitter that has the government’s blessings. “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,” he said.
Prasad added the guidelines were brought in 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. “It is astounding that Twitter which portrays itself as the flag bearer of free speech, chooses the path of deliberate defiance when it comes to the intermediary guidelines.”
{{/usCountry}}Prasad added the guidelines were brought in 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. “It is astounding that Twitter which portrays itself as the flag bearer of free speech, chooses the path of deliberate defiance when it comes to the intermediary guidelines.”
{{/usCountry}}The Union minister also hit out at the social media firm for arbitrarily deciding which posts to mark as “manipulated media”, seemingly referring to controversy wherein Twitter had decided to flag posts by several senior BJP leaders that alleged Congress prepared a toolkit to defame India’s Covid efforts and Prime Minister Narendra Modi. “What happened in UP 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 UP is perplexing as well as points towards its inconsistency in fighting misinformation,” Prasad said, adding: “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.”
His reference is to a video that went viral on Twitter that seemed to show a hate crime targeting a Muslim man in Ghaziabad, Uttar Pradesh, and was amplified as such, but which the state’s police has subsequently claimed was not a communal incident.
HT on Wednesday reported that if Twitter does not follow the new Information Technology (IT) rules , it may no longer be entitled to seek protection from penal action under Section 79 of the IT Act, which absolves social media firms of liability for third-party content.
Twitter late on Tuesday said it was in touch with the ministry of electronics and information technology, and has appointed an interim compliance officer. “We are keeping the MeitY apprised of the progress at every step of the process,” a Twitter spokesperson said, adding: “An interim Chief Compliance Officer has been retained and details will be shared with the Ministry directly soon. Twitter continues to make every effort to comply with the new Guidelines.” The chief compliance officer will be liable for penal action under the new guidelines in case of violation or failure to follow the rules.
Digital advocacy rights group Internet Freedom Foundation asserted that the “intermediary status” is a technical qualification as per “criteria under the 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,” it said.
The reference to constitutionality comes from a school of thought that says that because the new guidelines are a subordinate legislation (to the IT Act itself), a case can be made that they are arbitrary and go beyond the scope of the law.
IFF added that the 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,” said IFF.
“It’s not that their intermediary status is revoked but they lose protection under Section 79 of the IT Act. The courts can find them guilty of non-compliance,” a senior ministry official said on the condition of anonymity.
HT on June 7 reported that the microblogging services 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. The social media company sought a week from the ministry to comply with the key clauses of the new guidelines after the ministry issued it an ultimatum earlier this month.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, were notified in February, with all clauses coming into force on May 25. These guidelines require digital 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. WhatsApp has challenged only the traceability aspect of the law in the Delhi high court.
There are at least 7 other petitions against the guidelines, including by digital news websites. One of these is also by popular Carnatic vocalist and social justice activist TM Krishna, who said the rules are unconstitutional for how they impact the freedom of expression and the right to privacy. Krishna has challenged the entirety of the rules on five grounds, including violations of fundamental rights to free speech, to freedom to practice any profession and to that of privacy.
Twitter becomes the latest social media firm to fall in line with requirements, with Google, Whatsapp and Facebook already sharing the details of the officers with the government.
Raman Chima, Asia Pacific policy director at Access Now said that the Union Government does not have the sole authority to device how internet 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,” he said.
Kazim Rizvi, founding director at the think tank The Dialogue, said the government has always had the option to initiate legal proceedings against any intermediary. “Twitter will obviously invoke its safe harbour immunity to shield itself from actions of third parties on its platform. However, it is the court which will decide the extent of liability (if any) on the basis of the established jurisprudence in the Shreya Singhal and the Nakul Bajaj cases among many others,” he said.