[IT Rules] Govt Pressure Mounts As Twitter Loses Its Safe Harbour

Do you know that Twitter has been booked on allegations of inciting communal violence recently? Such instances of Twitter being dragged to court in connection with inflammatory tweets or fake news shared by its users would only increase if the microblogging platform does not act with urgency. To add to its problems, Law minister, Ravi Shankar Prasad made it clear yesterday evening that Twitter has failed to comply with the Intermediary Guidelines that came into effect on the 26th of May.

"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", he said.  

Mr Prasad's reaction comes in the wake of Twitter's lack of clarity on the appointment of a compliance officer as mandated under the new social media rules.

Does Twitter lose its intermediary status?

Soon after the news broke out, Twitteraties started speculating on a potential ban for Twitter in India. Ironically, #TwitterBanIndia floated on the social media platform for quite some time yesterday. News reports have been abuzz about the social media giant losing its intermediary status which may lead to the government banning the microblogging website. Meanwhile, Twitter has reportedly clarified that it has appointed a grievance officer as an interim measure.

For starters, the term intermediary is an umbrella term defined under Section 2(1)(ua)(w) of the IT Act, 2000. It takes into its ambit any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record. The term is wide and includes entities ranging from ISPs to social media platforms like Twitter.

At this juncture, it is important to clarify that there is no statutory requirement to obtain a registration certificate under the law to operate as an intermediary. Therefore, the question of revocation of the intermediary status by the government does not arise.

What is the debate about?

Nakul Batra, Associate Partner, DSK Legal gives a sense of the legal situation.

"Amongst other obligations, observing due diligence, and not selecting or modifying the information contained in the transmission, intermediaries (such as Twitter, Facebook, etc.) are entitled to claim immunity (safe harbour) under Section 79 of the Information Technology Act, 2000, for the acts of the persons who publishes or transmits illegal or prohibited content.

The IT Rules 2021 provides an additional set of compliances that intermediaries (depending on their nature as to their outreach) need to follow, to retain their safe harbour entitlements. Failure to observe such compliance requirements will strip an intermediary of its statutory immunity and the intermediary will be deemed to be as much responsible and liable as the person who publishes or transmits such illegal or prohibited content", he says.

Users on social media platforms post tons of content every day including fake news, objectionable, scandalous and defamatory content. News reports are filled with instances of unverified information going viral and resulting in unfortunate ramifications like communal tensions and riots. In view of the situation, social media sites and other intermediaries were provided legal protection from penal consequences on account of third-party content posted on these websites. In turn, these intermediaries were required to adhere to certain due diligence requirements.

However, it is rule 7 of the new social media guidelines that has got everybody talking. It says that provisions of section 79 of the IT Act don't apply to intermediaries after failing to comply with intermediary rules. It is pertinent to highlight here that rule 7 only talks about taking away the legal protection granted against user content and does not talk about a ban on social media platforms.

All eyes on Twitter now

The answer is simple. The court will decide whether the legal immunity available to intermediaries under section 79 of the IT Act will be available to Twitter or not. The government has no role in addressing the question. The government has given opportunities to Twitter for compliance with the new rules. It is the court of law that will have the final say.

As Siddharth Jain, Co-Founding Partner, PSL Advocates and Solicitors points out, Twitter will have to prove its bona fide in order to avoid a potential legal dispute.

"Although Twitter is in the process of complying with the Rules and has also appointed the Nodal Officer, as it says, the Government, in its wisdom, is left wanting. Now, since the matter is before a Court of law, Twitter will have to prove its bona fide in order to wriggle out of the legal tangle. The stage of mutual sparring is over, and it is for the Court to decide as to whether the company is deficient or not", he says.

All eyes on Twitter now. Although a ban is not probable, it remains to be seen if the compliance requirements given under the new social media rules will prove to be a bottleneck in terms of ease of operating its business in India.