Explained: Twitter loses legal shield, named in FIR for 'misleading' content

Nandini YadavJun 16, 2021 14:33:57 IST

Twitter has lost its “safe harbour” immunity in India over its failure to appoint statutory officers, as required by the government’s new IT rules. This means Twitter and its top executives will now be open to legal action for content on its platform that is considered unlawful in nature.

We reached out to Twitter and were told that it has appointed an interim Chief Compliance Officer in India and that the details of it will soon be shared with the IT ministry.

“We are keeping the MeitY apprised of the progress at every step of the process. 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," a Twitter Spokesperson said.

What does losing the "intermediary" status mean for Twitter?

Without the protection of Section 79 of the IT Act, Twitter will now be open to legal action for any "third party information, data, or communication link made available or hosted by him". In essence, it could be held criminally responsible for content on the platform. For the end-user, Twitter losing this legal shield, will have no effect.

This is already having an impact. After an elderly Muslim was reportedly beaten up in a town in Uttar Pradesh’s Ghaziabad district on 5 June and the video of the abuse went viral on Twitter, an FIR was filed on 15 June against nine accused, including “Twitter Inc” and “Twitter Communications India Pvt”. Tweets around the incident indicated that the victim was forced to chant “Jai Shree Ram” by the attackers, a claim that was later denied by the Ghaziabad Police.

After losing legal immunity as an "intermediary", Twitter is now open to legal action for what have been termed “inflammatory” tweets. Twitter has been named in an FIR for not removing "misleading" content linked to the incident. Twitter, politicians and several journalists have been charged for inciting "communal sentiments" with posts sharing the man's allegations.

Meanwhile, the Internet Freedom Foundation (IFF) has cast doubt on the "intermediary" tag itself. The organisation says that the “intermediary status” is not a registration that is granted by the government, but "is actually 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," it adds. According to the IFF, "intermediary" status will ultimately be decided by the court.

2/ First! The “intermediary status” is not a registration that is granted by the Government. If you’d like to brush up on this, we’ve got you covered in an explainer we did when incorrect reports emerged over a “social media ban” earlier this month.https://t.co/ewOM8A8kOJ

— Internet Freedom Foundation (IFF) (@internetfreedom) June 16, 2021

4/ The so-called “intermediary status” is actually a technical qualification as per criteria under the Section 2(1)(ua)(w) of the IT Act (see link). This should be read with Section 79 (explained in the next tweet). https://t.co/nJOP9eVkoM

— Internet Freedom Foundation (IFF) (@internetfreedom) June 16, 2021

6/ The new IT Rules, as per several digital rights organisations, are unconstitutional. In fact, they have been challenged in several state High Courts. For instance, this recent challenge by T.M. Krishna. https://t.co/pVXmlBqHfK

— Internet Freedom Foundation (IFF) (@internetfreedom) June 16, 2021

As per the digital rights organisation, the new rules are "unconstitutional" and are already being challenged in court.

Dr Nigam Nuggehalli, Professor, School of Law, BML Munjal University says just appointing a compliance officer isn't enough, we need a "transparent and comprehensive public discussion leading to a sensible law on the regulation of social media intermediaries".

"The tug of war between Twitter and the Indian government had grave ramifications for freedom of speech and expression in India. In the short term, Twitter will do well to appoint the compliance officers required under the intermediary rules. But in the long term, there must be a transparent and comprehensive public discussion leading to a sensible law on the regulation of social media intermediaries. Twitter is not merely a collection of random musings anymore; it is a platform critical to the dissemination of news that often holds the government to account. Twitter’s regulation can no longer be left to ad hoc executive led rules, its regulation is a matter of national concern and ought therefore to be decided by the Parliament," he said.

Why has "intermediary" status been taken away from Twitter?

The Minister of Electronics and Information Technology (MeitY) Ravi Shankar Prasad took to Twitter on Wednesday saying, "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." Prasad further adds that Twitter was given multiple opportunities to comply with the new IT rules, however it has "deliberately chosen the path of non compliance".

"Twitter fails to address the grievances of users by refusing to set up process as mandated by the law of the land. Additionally, it chooses a policy of flagging manipulates media, only when it suits, its likes and dislikes," Prasad went on to write in the Twitter thread.

Further, Twitter was given opportunities to comply with the same, however it has deliberately chosen the path of non compliance.

— Ravi Shankar Prasad (@rsprasad) June 16, 2021

"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," Prasad wrote in a tweet.

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.

— Ravi Shankar Prasad (@rsprasad) June 16, 2021

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 & indicates its inconsistency in fighting misinformation.

— Ravi Shankar Prasad (@rsprasad) June 16, 2021

Prasad also said that the viral tweet on the Ghaziabad incident "was illustrative of Twitter’s arbitrariness in fighting fake news".

Indian companies be it pharma, IT or others that go to do business in USA or in other foreign countries, voluntarily follow the local laws. Then why are platforms like Twitter showing reluctance in following Indian laws designed to give voice to the victims of abuse and misuse?

— Ravi Shankar Prasad (@rsprasad) June 16, 2021

However, 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.

— Ravi Shankar Prasad (@rsprasad) June 16, 2021

With the new IT rules coming in effect, social media companies in India originally had till 25 May to comply with the new rules. The new guidelines require social media platforms to establish a grievance redressal mechanism and name a grievance officer, who must register a grievance within 24 hours and redress it in 15 days.

However, most platforms failed to comply with the rules by the deadline, citing COVID-19 lockdowns and restrictions.

On 5 June, the centre issued a “final notice” to Twitter asking it to comply with the statutory provisions or risk losing its intermediary status.

Days later, Twitter approached the government seeking more time to comply with the new IT rules. Twitter said that it intends to comply with the rules but needs more time due to the pandemic situation in India.

“The government believes that whoever has not yet complied with the guidelines has lost the intermediary status. For Twitter now, any and all penal action that is applicable under the Indian Penal Code will be applicable,” Indian Express reported a source saying.

With this, Twitter has become the first American platform to lose the protection of Section 79 of the IT act, hence, losing its legal immunity as an "intermediary" in India.

How have other social media platforms like Google, YouTube and Facebook escaped this?

Other social media platforms like Instagram, WhatsApp, and Facebook continue to enjoy the immunity of a social media intermediary in India. And this immunity comes from compliance.

By May-end, Google, Facebook and WhatsApp had submitted details of new compliance officers to the IT ministry, according to a report by HT.

On 1 June, WhatsApp named Paresh B Lal as its grievance officer for India.

On 8 June, Facebook named Spoorthi Priya as its grievance officer for India on its website.