On Wednesday, June 16, news websites were flooded with reports stating that Twitter has lost its intermediary status in India over non-compliance of the new IT rules that came into effect on May 26. That means the micro-blogging site is liable for all content – including old posts – on the platform and Twitter and its employees can be held liable under the Indian Penal Code, Information Technology Act and other such laws. However the question that comes to mind: What does it mean to lose intermediary status? And can Twitter really lose its legal shield in India?
Going by a series of tweets (ironically!) by IT Minister Ravi Shankar Prasad, it is evident that since the social media company failed to comply with the new digital rules, their protection as an intermediary has gone.
The new IT Rules released earlier this year states that the moment any intermediary including any significant social media intermediary does not comply with the IT rules, they automatically lose their statutory exemption from legal liability.
The IT minister alleged, “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?”
The debate continues with IT industry veteran T V Mohandas Pai urging the government to penalize Twitter for non-compliance with Intermediary Guidelines, alleging that the microblogging platform has become ideological, biased and is no longer neutral.
“Almost all companies have complied and there is nothing special about Twitter or any company. The sovereignty and laws of India are more important than any MNC,” Pai told PTI, as he argues, “When Indian companies operate globally they obey the laws of that country and there is no reason why India should be soft on these non-compliant MNCs. All are equal under the law.”
Other significant social media intermediaries such as Google, Facebook, WhatsApp, Telegram and LinkedIn, among others currently enjoy this protection shield as they have adhered to the new rules.
On the implications of the loss of intermediary status, Cyberlaw expert Pavan Duggal explains, “This effectively means that they are liable to be sued in civil and criminal actions across the country, and they are liable to defend each one of them for third party data or information made available by them.”
“Further, they become liable for being punished for various offences under the Information Technology Act, 2000 and the Indian Penal Code, 1860. In this case, Twitter by not complying with the IT rules 2021 has lost its statutory immunity after the expiry of 90 days from February 25,” he says, adding that Twitter no longer has the “suraksha kavach” or statutory exemption from legal liability.
On the other hand, digital rights organization Internet Freedom Foundation states that “intermediary status is not a registration granted by the government.”
Intermediaries like Twitter are protected under Section 79 of the Information Technology Act that states that they cannot be held liable for the third party content published on their platform as long as they comply with the legal order to take down content from courts or other authorities. This means, if a user’s tweets go viral and that results in death or violence, Twitter cannot be held liable just because of it. However, they will have to take down the content if they get a legal order from the court or authorities. This is what is termed as safe harbor protection.
In this context, business lawyer Dhruv Suri argues that the Indian government has no power to “take away” any such protection. Only courts can adjudicate whether Twitter will be deemed an intermediary or not (under section 79 the IT Act).
“It is not like the government ever issued a certificate or license to Twitter which they are now taking back or revoking. So, if today the government decides to register FIRs, Twitter can still rely on section 79 and take the intermediary defense. ONLY courts (and NOT the government) will then decide whether Twitter is entitled to safe harbor protection or not,” he said.
Such sweeping statements made by government officials are as ridiculous and illogical as some of the provisions of the Intermediary Guidelines 2021, he says.
Needless to say, Twitter can take the legal route, as Cyber law expert Reshmi Chowdhury states currently there are multiple petitions challenging the constitutional validity of the new IT rules. For example, it can file a writ petition in the Supreme or High Court. Likewise, the government can also start legal proceedings against Twitter for third-party data and information.
Last month, Facebook-owned messaging platform WhatsApp has filed a case against the government stating that the new IT rules will break end to end encryption and result in breach of privacy for its users. Similarly, she believes, Twitter’s business model is based on free speech and privacy and it depends on Twitter how it can strike back.
Meanwhile, Twitter said in a statement that it was keeping the IT ministry “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. Twitter continues to make every effort to comply with the new guidelines,” it said.
It also needs to be seen if Twitter’s loss can be a gain for Koo, an alternative app to Twitter, built for Indians in order to be able to share their views using Indian languages. The micro-blogging app has already reached 7 million downloads on the play store and is set to enter global markets as well.