• Utkarsh Kumar

MeitY and Twitter: Partners in Crime

Updated: Jun 14, 2021

An analysis of the rift between Twitter India and the Ministry of Electronics and Information Technology [hereinafter “MeitY”] throws up bizarre questions.


The recent spate of events seem to indicate that the Government of India and micro-blogging social media giant Twitter are at loggerheads with each other. These have led to wild speculations that Twitter might face a ban or shut-down in India. There have been a series of public statements and comments about holding Twitter accountable to laws of the land.


MeitY is the regulatory body for social media intermediaries in India. Section 2(w) of the Information Technology Act, 2000 [hereinafter “IT Act”] defines an intermediary. Since an intermediary is just a service provider and runs a platform for the users to host their content, Section 79(1) of the IT Act provides them with the exemption from liability, notwithstanding any other law in force in the country, due to “any third party information, data, or communication link made available or hosted by [it].” This definition encompasses all social media platforms where the platform is just transmitting or hosting the user-generated content and has no role in initiating, selecting the receiver, or modifying the information. It “includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”.[i] The prominent examples are Facebook, Twitter, Google, etc.


Section 79 of the IT Act reads thus:

"79. Exemption from liability of intermediary in certain cases.–(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if–

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not–

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

(3) The provisions of sub-section (1) shall not apply if–

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Explanation.–For the purposes of this section, the expression ―third party information‖ means any information dealt with by an intermediary in his capacity as an intermediary."


But the last paragraph of the letter by MeitY to Twitter Inc, USA dated June 5, 2021, reads thus:

"Though with effect from 26th May 2021, in view of Twitter Inc’s non-compliance with the Rules as noted above, consequences follow. However, as a gesture of goodwill, Twitter Inc is hereby given one last notice to immediately comply with the Rules, failing which the exemption from liability available under section 79 of the IT Act 2000 shall stand withdrawn and Twitter shall be liable for consequences as per IT Act and other penal laws of India."


Two sharp contentions rise when the IT Act, Rule 7 of the Information Technology (Intermediary Guidelines Digital Media Ethics Code) Rules, 2021 [hereinafter “IT Rules”] and the letter by Meity to Twitter Inc, USA dated June 5, 2021. These are discussed hereinbelow.

Firstly, how can MeitY extend a discretionary goodwill gesture to any entity bound by the law of the land which, in the case of intermediaries, are IT Rules effective from the midnight of May 26, 2021? This point has been highlighted by Nikhil Pahwa at Medianama. He has argued that on one hand MeitY reminds of the consequences to be followed with effect from May 26, 2021, while on the other, it extends a goodwill gesture in contravention of Rule 7 of IT Rules which takes away the intermediary liability exemption (also called safe harbour) immediately on the midnight of May 26, 2021 from non-compliant intermediaries. There is no scope for discretion by Central Government. The only way for a legal backing for this goodwill gesture to arise is by way of an amendment to IT Rules by superseding guidelines under Section 87(2)(zg) of the IT Act. It is another matter that the government might choose to not go after Twitter for implementation of IT Rules 2021 knowingly.


Secondly, even if the government chooses to not implement the IT Rules in letter and spirit for the sake of “goodwill gesture”, Rule 7 of IT Rules still applies to Twitter Inc from the midnight of May 26, 2021 till it becomes fully compliant. Thus, it may safely be argued that Twitter Inc has lost its intermediary safe harbour protection under Section 79(1) of IT Act from 26th March 2021 and may well be tried and prosecuted as a publisher of illicit content hosted on its platform. For example, any hate speech video or an outrageous post on Twitter is well covered under section 505 or 124A of the Indian Penal Code [hereinafter “IPC”] and can be attributed to Twitter Inc also in addition to the user who posted it.


Lastly, even when Twitter Inc complies with the IT Rules sometimes later, it will still be exposed to criminal culpability for eternity as there is no limitation to the criminal acts and unlike conventional crimes, alleged crimes on Twitter have a well-established digital trail. If such a case arises where an online crime happens on Twitter within the said window and the matter goes to court, it’d be interesting to see if courts recognise this brief window where Twitter Inc had no safe harbour for the content hosted on its platform. Theoretically, every moment, Twitter is getting exposed to a higher number of crimes till it gets back its exemption under Section 79 of IT Act. It cannot be expected from victims of cybercrime, who seldom get effective relief in cybercrimes to not use this opportunity to sue Twitter or to get it prosecuted as a party in order to widen the ambit of their relief forcing Twitter to cooperate in their case. It can be hoped that Twitter Inc and MeitY will get their acts together and come to terms not becoming the reason to open up a new spate of legislations harming the well-established safe harbour principles.


 

Notes

[i] Section 2(1)(w) of The Information Technology Act, 2000

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