Explained: Has Twitter really lost its safe harbour protection in India?

Why are we talking about this now?

Few newspaper reports cited government sources who said Twitter has lost its intermediary status in India due to non-compliance of new IT rules by not appointing key officers despite several notices. This means it will be liable for any content that is posted on its platform under the Indian Penal Code and the IT Act.

Interestingly, Twitter was named as a party to the First Information Report (FIR) filed by the Uttar Pradesh Police on a tweet that had misinformation about an assault and was flagged by users for giving a communal colour to a petty dispute.

What does intermediary status mean?

As pointed out by the digital rights organisation Internet Freedom Foundation, “intermediary status is not a registration granted by the government.”

As per Section 2 (1) of the Information Technology Act, an intermediary is a person/entity that receives, stores and transmits information or provides service for transmission of information. This includes telecom service providers, network service providers, internet service providers, search engines, online payment sites, online-auction sites, online-marketplaces and even cyber cafes.

Can social media platforms like Twitter lose the intermediary status?

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 termed as safe harbour protection.

According to the government, Twitter has lost this protection by way of non-compliance with the current IT rules.

Vivek Sood, a senior advocate in the Delhi High Court, explained to Moneycontrol, “Hyper technically, the government could be right. Twitter has not complied with the new rules and they lose the protection for an intermediary in Section 79 of the IT Act.”

However he added that by not complying with those rules Twitter has not lost the status of an intermediary as defined in the law, cited earlier.

Can the government decide if a platform loses its intermediary status?

No. It is up to the courts to decide. Currently there are multiple petitions challenging the constitutional validity of the new IT rules. Last week Carnatic Singer TM Krishna filed a petition in the Madras High Court challenging the new IT rules. The court has asked the government to respond in four weeks. Facebook-owned messaging platform WhatsApp has filed a case against the government stating that enabling traceability mandated under new IT rules will break end to end encryption and result in breach of privacy under.

Will this result in self-censorship?

According to experts, this is Twitter’s call. Sood said, “Twitter's business model is based on free speech and privacy. Therefore now it depends on Twitter.”

A public policy expert working for a social media firm and did not want to be named, pointed out that if the instances of criminal proceedings increase, where an intermediary like Twitter is going to be named as a party, platforms might resort to self-censorship in a bit to protect themselves. This will impact an individual's freedom of speech, which is guaranteed in the constitution.

For instance, if a social media platform thinks that a particular content could cause trouble however remote, it might take it down before it was being reported. This could result in restricting freedom of expression that the very platforms facilitated.

What are the options available for Twitter?

Twitter can take a legal recourse. Sood said that Twitter can file a writ petition in the Supreme or High Court. There are many such petitions filed in the Indian courts related ,“So you will have another one in the pool of litigation,” he said.

What is Twitter’s response?

While Twitter declined to comment on the FIR filed in Ghaziabad, in response to losing the intermediary status and legal recourse, Twitter spokesperson said, "We are keeping the Ministry of Electronics and Information Technology (MeitY) 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 soon. Twitter continues to make every effort to comply with the new Guidelines."

How did the government respond?

There was no clarity from the government on the exact point of whether Twitter loses its intermediary status or not.

In a tweet on June 16 Ravi Shankar Prasad, Union IT Minister, said, “There are numerous queries arising as to whether Twitter is entitled to safe harbour provision. However, the simple fact of the matter is that Twitter has failed to comply with the Intermediary Guidelines that came into effect from May 26.” Safe harbour provision refers to the Section 79 of the IT act that protects intermediaries from liabilities.

Prasad further added that what happened in UP was illustrative of Twitter’s arbitrariness in fighting fake news. “While Twitter has been over enthusiastic about its fact checking mechanism, its failure to act in multiple cases like UP is perplexing & indicates its inconsistency in fighting misinformation,” he said in the tweet.

“However, if any foreign entity believes that they can portray itself as the flag bearer of free speech in India to excuse itself from complying with the law of the land, such attempts are misplaced,” he added.