Central Government v. Twitter: What the Feud Really Means
After the initial grandstanding, Twitter has realized that it has no option but to comply with the laws made by the world's largest democracy if it needs access to more than 448 million social media users of India.
The tension between Twitter and the Central Government has been at an all-time high, with both parties claiming to be defenders of free speech. The feud kicked off when the Indian Government issued the Information Technology (Intermediary Guidelines and Ethics Code) Rules, 2021 in February. Following the release of these Guidelines, the Indian Government demanded that Twitter should suspend over 500 accounts, over tweets made about the farmers' protest, and the violence that followed thereafter.
The Central Government claimed that these accounts had been using an insurrectionist hashtag. The Government further claimed that these tweets had been made by Sikh separationist groups, which were allegedly supported by Pakistan. While Twitter complied with these demands and suspended over 250 accounts, these suspensions were soon removed on the grounds that there was "insufficient justification" for removing these accounts.
After the removal of the suspension, the Central Government demanded that these accounts be suspended again. However, many alleged that this move was an attack on the free speech of the people, as accounts of many investigative news agencies, media houses, journalists and activists were also suspended.
Twitter, after being threatened with legal action by the Central Government, removed 500 accounts. In their blog, Twitter stated that the removal of these accounts had been done on the grounds that they were engaging in "platform manipulation and spam". Furthermore, Twitter went on to state that it would not remove or suspend the accounts belonging to journalists, activists, or media companies. This, Twitter explained, would amount to a violation of the fundamental right to freedom of speech and expression, as enshrined under the Constitution of India.
The Central Government claimed that Twitter was in direct violation of the Information Technology (Intermediary Guidelines and Ethics Code) Rules, 2021 and Section 79 (2)(b) of the Information Technology Act, 2000, by violating the laws that have been established for "intermediaries".
INTERMEDIARIES AND IT GUIDELINES, 2021- EXPLAINED
What Are Intermediaries?
According to Section 2 of the IT Act, 2000, the term "intermediary" is defined as a person who, on behalf of another person, receives, stores, or transmits an electronic message or provides any service related to that message. Section 79 of the Act states that these intermediaries have an immunity. This immunity exempts these intermediaries from legal liability for any contentious messages, third party information or data that is shared on the platform. This immunity, which is also known as 'safe harbor', can be exercised only if the message or information in question has been sent by third parties. The intermediaries should have no involvement whatsoever in the transmission of the said messages or information.
However, the IT Act also makes it clear that the immunity will be rescinded if the intermediary fails to remove the messages or information in question, from the platform, despite being notified by government agencies. Adding to this, the intermediaries should not tamper with any content on its platform. If such tampering is done, then they are bound to lose the immunity provided by the Act.
Following the IT Act, IT Rules had been introduced in 2011, which stated that the intermediaries had to publish the rules and regulations, user agreement and privacy policies which would clearly mention that no user of these platforms shall post any information or messages that would go against the law in place. The new Information Technology (Intermediary Guidelines and Ethics Code) Rules, 2021 supplant the 2011 rules.
Information Technology (Intermediary Guidelines and Ethics Code) Rules, 2021
The 2021 IT Rules have added more requirements that the intermediaries need to comply with. First and foremost, the Rules define a "significant social media intermediary" as a platform with over 50 lakh registered users and allows two or more users to interact with each other, while also allowing them to share, create, upload and access information, when they are using that platform. Hence, Instagram, Facebook, Twitter, WhatsApp, and other popular social media sites come under the definition of "significant social media intermediary".
According to the new IT Rules, every social media intermediary has to establish a grievance redressal system. Significant social media intermediaries are required to appoint three new officers. Firstly, a Chief Compliance Officer (CCO) has to be appointed, who will ensure that the rules and regulations laid down in the IT Act and the IT Rules are being followed. Secondly, a Nodal Contact Person has to be appointed, who will be responsible for communicating with the legal authorities and law enforcement agencies. Thirdly, a Resident Grievance Officer has to be appointed, who shall be responsible for the grievance redressal system of the platform.
The IT Rules of 2021 also state that the significant social media intermediaries have to also enable an option for the identification of the "first originator". This option, the Rules state, need only be used when the intermediary is ordered to do so. Furthermore, the option for identification of the first originator can only be used for the detection, prevention and prosecution of any offenses related to the integrity and sovereignty of India, international security and relations, information regarding rape or explicit imagery or child abuse, or for any offenses relating to public order.
Compliance with the IT Rules of 2021 is mandatory. If any intermediary is found to be non-compliant with these Rules, then they would lose the immunity that Section 79 of the IT Act offers them. In other words, if these intermediaries do not comply with these Rules, then they are open to legal liability for any unlawful posts that a third-party posts on the platform.
TWITTER AND THE VIOLATION OF IT RULES, 2021
Since the application of the IT Rules, 2021, heated words have been exchanged between Twitter and the Central Government.
Twitter, on 1st February 2021, released a letter in which it stated, "stock phrases and exaggerations /crude emotional appeals do not constitute inflammatory speech in light of the judgments of the Hon'ble Supreme Court". This letter was published in reference to the Union Government's demand to suspend 250 accounts which had allegedly used insurrectionist hashtags.
Following the suspension and subsequent restoration of the 250 accounts, the Union Ministry of Electronics and Information Technology warned Twitter, via a letter dated 3rd February, that since it is an intermediary as per Section 2 of the IT Act, it has to comply with the laws in place in India. The Union Ministry's letter also stated that Twitter did not have the power to assume the role of a Court and sit as an appellate authority to justify its non-compliance.
Twitter's Intermediary Status Revoked
The new IT Rules, 2021, which were issued in February, came into effect on May 26. The Union Government, on 6th June 2021, stated that Twitter had failed to comply with the new IT Rules and had not appointed a Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer. This, the Union Government stated, was in direct violation of the new guidelines issued under the IT Rules, 2021.
Since Twitter had failed to adhere to the new Rules, the Union Government stated that Twitter was no longer considered to be an intermediary as per Section 79 of the IT Act. Hence, Twitter, which earlier had immunity from legal liability can now be held liable for any unlawful post that is made on its site, by a third party.
Following the removal of the intermediary status, Twitter had informed the Union Government that it was taking every necessary step to comply with the IT Rules, 2021.
On 28th July, the Delhi High Court came down heavily on Twitter in a plea filed before it alleging non-compliance by Twitter of the IT Rules, 2021. The Court observed that Twitter was in total non-compliance and that a last opportunity was being given to it to report compliance.
On August 10, 2021, Twitter announced that it had officially complied with the new IT Rules, 2021. A Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer had been appointed, on a permanent basis. Clearly, after the initial grandstanding, Twitter has realized that it has no option but to comply with the laws made by the world's largest democracy if it needs access to more than 448 million social media users of India.
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