An analysis of the rift between Twitter India and the Ministry of Electronics and Information Technology (MeitY) throws up bizarre questions.
Recently Government of India and micro-blogging social media giant Twitter seems to at loggerheads with each other. It led to wild speculations of Twitter getting banned or shut down on 26th May 2021 midnight. There have been a series of public statements and comments about holding Twitter accountable to laws of the land.
Ministry of Electronics and Information Technology (MeitY) is the regulatory body for social media intermediaries in India. Section 2(w) of the Information Technology Act 2000 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 same 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 him.” This definition encompasses all social media platforms, or in simpler words 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 can include “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”. The prominent examples are Facebook, Twitter, Google etc.
However, there are certain conditions to this blanket exemption. It is subject to conditions laid down in clause 2 and 3 of section 79. Sections 79(2) and 79(3) lay down certain conditions to the functions of the intermediary to avail this exemption. The notable and discretionary amongst them is section 79(2)[c] according to which the intermediary has to observe “such other guidelines as the central government may prescribe in this behalf.” Thereafter with the powers vested in Central Government to issue directions as per section 87 of the act, MeitY released Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as IT Rules 2021) on 25th Feb 2021 and provided a 3 months window i.e. till 25th May 2021. According to credible media sources, statements by Twitter and a letter dated 5th June 2021 by MeitY to Twitter Inc, USA, it is established that Twitter is not in compliance with the IT Rules 2021 and this attract the penal provisions of the IT Rules 2021.
It is pertinent to mention here that the constitutionality of IT Rules 2021 has been challenged by multiple intermediaries and even users in different High Courts across the country. I won’t be making a comment on the legality of the IT Rules 2021 per se as it is a separate issue altogether and has already been discussed by experts a lot.
As per the non-compliance with IT Rules 2021, section 7 of IT Rules 2021 comes into play and make the intermediary liable for punishment under any law and including IT Act 2000 and the Indian Penal Code.
7. Non-observance of Rules. — Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Actshall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.
But the letter by MeitY to Twitter Inc, USA says that:
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.
In reading the IT Act 2000, IT Rules 2021 section 7 and this letter by MeitY, there arise two points of contentions.
Firstly, how can the ministry extend a discretionary goodwill gesture to any entity bound by the law as per law of the land which in the case of intermediaries are IT Rules 2021 from the midnight of 26th May 2021? This point has been highlighted by Nikhil Pahwa at Medianama. He has argued that on one hand ministry reminds of the consequences to be followed with effect from 26th May 2021, on the other, it extends a goodwill gesture in contravention of section 7 of IT Rules which takes away the intermediary liability exemption (also called safe harbour) immediately on the midnight of 26th May 2021 from non-compliant intermediaries. There is no scope for discretion by Central Government. Only legal backing for this goodwill gesture might arise from amendment to IT Rules 2021 by superseding guidelines under section 87(2)(zg) of the IT Act 2000. Though the government may choose to not go after Twitter for implementation of IT Rules 2021 knowingly.
Secondly, even if government choose not to implement the IT Rules 2021 in letter and spirit for the sake of “goodwill gesture”, section 7 of IT Rules 2021 still applies to Twitter Inc from midnight of 26th May 2021 till it becomes fully compliant. This can be argued that Twitter Inc has lost its intermediary safe harbour protection under section 79(1) of IT Act 2000 from 26th March 2021 and can 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 that is well covered under section 505 or 124A of IPC can be attributed to Twitter Inc also in addition to the user who posted it which is the norm till now. Daksha Fellow Utkarsh Kumar has argued the same point in reply to the tweets by Nikhil Pahwa which was quoted earlier.
Lastly, even when Twitter Inc complies with the IT Rules 2021 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 2000. It can not 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 and forcing Twitter to cooperate in their case. It can be hoped that Twitter Inc and MeitY get their act together and come to terms not becoming the reason to open up a new spate of legislations harming the well established safe harbour principles.