Twitter has not complied with IT rules as of July 1: Govt to HC

New Delhi: The Union government informed the Delhi high court on Monday that Twitter has lost its immunity from criminal prosecution for content on its site due to the failure to appoint a grievance redressal officers as required under the new Information Technology Rules

New Delhi: The Union government informed the Delhi high court on Monday that Twitter has lost its immunity from criminal prosecution for content on its site due to the failure to appoint a grievance redressal officers as required under the new Information Technology Rules.

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Submitting an affidavit in response to a petition by a lawyer, the government said that Twitter and other social media intermediaries were given a “sufficient” period of three months from February 25, when the guidelines were announced (they came into effect on May 25) to comply with the due diligence norm in order to avail of protection from prosecutions in cases of obnoxious and offensive content posted by a third party.

“….the IT Rules, 2021 are the law of the land and Respondent No 2 (Twitter) is mandatorily required to comply with the same. Any non-compliance amounts to breach of the provisions of the IT Rules, 2021 thereby leading to Twitter losing its immunity conferred under section 79(1) of the IT Act, 2000,” the Information and Technology Ministry said in an affidavit filed in the court.

To be sure, this is the IT ministry’s perspective and it remains to be seen whether Twitter loses the so-called safe harbour or intermediary immunity for its failure to comply with the guidelines.

Twitter told the high court on Saturday that the three months timeline fixed by the Centre to appoint such officers under the new IT Rules is “directory” but “not mandatory”. The social media intermediary also told the court that it is in the “final stage” of appointing officers for grievance redressal.

On May 29, Twitter did announce the appointment of an officer but this person resigned on June 21. Subsequently, Twitter has made one of its US-based executives responsible for this.

Separately, Twitter has been criticised by the ruling Bharatiya Janata Party for labelling tweets by its leader “manipulated media” and has been questioned by the Delhi Police on the basis for doing so. The tweet in question pointed to a media outreach and social campaign document (a toolkit) that was purportedly put together by the Congress party to target the government for its handling of Covid and the Central Vista project. The Congress claimed the toolkit was forged.

Twitter has also been summoned by the Ghaziabad police over its role in amplifying a video that allegedly misrepresented an attack on an elderly Muslim man as a hate crime, and it also faces a bunch of police complaints about a wrong map of India on its website.

Under the new digital rules introduced on February 25, social media companies such as Facebook, WhatsApp and Twitter have been asked to place a three-tier grievance redressal system and appoint a chief compliance officer, nodal contact person and resident grievance officer by May 25.

The new guidelines also require these companies to identify within 36 hours the originator of a flagged message as well to regulate their content, appoint grievance officers who will be liable for compliance, and adopt measures such as tracing of individual messages and voluntary user verification.

WhatsApp has separately approached the courts challenging the traceability part of the provisions.

“..a sufficient period of three months from Feb 26 was granted to all Significant Social Media Intermediaries (SSMIs) to comply with the additional due diligence set out under Rule 4 of the IT Rules, 2021. Thus, from May 26 onwards, all SSMIs are mandatorily required to comply with the obligations set out in Rule 4 of the IT Rules, 2021,” the government told the Delhi high court.

Under section 79(1) of the IT Rules, all intermediaries are protected from any criminal prosecution for the content uploaded by the third party.

However, Rule 7 states that when an intermediary fails to observe the IT Rules, 2021, the provisions of section 79 (1) will not be available and it shall be liable for any punishment under any law for the time being in force in respect of the offending content.

The government told the Delhi high court that the immunity conferred on intermediaries under section 79(1) is a “conditional immunity” subject to them satisfying the other conditions.

“In spite of the three months’ time granted to all (SSMIs) to comply with the IT Rules 2021 having expired on May 26, Respondent No 2 (Twitter) has failed to fully comply with the same,” it added

The union government said Twitter has failed to comply with the IT Rules, 2021 as on July 1 for not appointing a Chief Compliance Officer, Resident Grievance Officer and a Nodal Contact Person (even on an interim basis).

It also said that the physical contact address, which was shown to be there on May 29, is once not again available on Twitter’s website.

It stated that in wake of the resignation of the Resident Grievance Officer appointed by Twitter, in the interim, the grievances from India are being handled by executives of Twitter in the United State of America “which amounts to non-compliance with the IT Rules 2021”.

Twitter has previously 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”.

It has also 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.

The submissions of the government came on plea by advocate Amit Acharya, who through his counsel Akash Vajpai, contended that Information Technology Rules came into effect from February 25 and the Centre had given 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, till date no resident grievance officer has been 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.

The Centre told the court that the petitioner found only the contact details of a grievance officer located in the US on the website/mobile app of Twitter when he wanted to register a complaint.

Twitter informed the Delhi high court that it did not find the contents to be offensive according to its policy.

The matter will be heard on July 6.