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Legal protection of Twitter as intermediary is not absolute, it is compliance-oriented

Instead of resorting to police action, it will be best if India resolves these tech issues through an effective legal framework and regulator

There is an ongoing debate on whether Twitter has lost its intermediary status or the protection granted to intermediaries under the Indian law. To answer either of the two questions, it is necessary to examine what is an intermediary, and how and why certain protection is granted to intermediaries.

Social media platforms like Facebook and Twitter, instant messaging service like WhatsApp and search engine giant Google are called intermediaries, as per the definition provided under Section 2 (1)( w) of the Information Technology Act.

According to the IT Act: “Intermediary” means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and 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.

Section 79 of the Information Technology Act grants certain protections to intermediaries on the condition that they fulfil certain obligations and due diligence mandated as per rules. When these intermediaries do not comply with the court or government order, they become responsible for the content as the publisher, and may be criminally prosecuted along with the originator of the content.

High court order of 2013 for grievance officer

Not so long ago, the government was extremely reluctant in enforcing the 2011 Intermediary Rules. In contrast, there is fair amount of enthusiasm regarding enforcement of the 2021 Rules. This could well be an extreme step for technology companies and may prove counterproductive.

Social media companies’ reluctance in following the local laws first emerged in the KN Govindacharya matter before the Delhi High Court. Following the court’s order in August 2013, tech giants appointed grievance officers for India, but they were located outside India.

Other tech giant may also lose protection

The Government of India notified the present Intermediary Guidelines on 25 February, 2021, in which certain provisions regarding “significant social media intermediary” came into effect three months later, i.e. 26 May, 2021. Rule 7 of the 2021 Intermediary Rules states that protection under Section 79 of the IT Act will not be available to intermediaries that violate the rules.

On 5 June, the Government of India had issued a final notice to Twitter stating that non-compliance with the rules will result in withdrawal of protection under Section 79 of the Information Technology Act.

As intermediary protection is a result of the law, for which no separate notification is issued, similarly, no separate notification is required for withdrawal of such status. Apart from non-compliance by Twitter, Facebook and Google have also not disclosed details of their compliance officer and nodal officer.

Non-compliance can lead to these entities losing protection; as a result, they can be prosecuted under Indian penal laws.

Criminal actions in civil matters

An FIR has been lodged against Twitter for an objectionable tweet. To sustain this matter before the courts, the government will have to establish three things. First, there was objectionable content. Second, Twitter was duly directed to remove such content as per a court order or through a government order. Third, Twitter’s refusal to comply with government’s direction within the prescribed time limit.

If criminality of the platform is criteria, then Facebook and WhatsApp can also be prosecuted. WhatsApp through its new privacy policy is compromising the privacy of crores of Indians, which, according to the government, is wrong. Earlier, Facebook-owned WhatsApp was said to be involved in the Pegasus episode.

These actions show that these entities are more than an intermediary. It remains to be seen whether or not action will also be taken against all such entities, in line with Twitter.

Disclosure of designated officers

Earlier, the government had tried putting in place some control over social media through different methods, one being parliamentary committees summoning them. Lodging an FIR and the police taking the matter in their hands violate Article 19 of the Constitution as well as several judgments of the Supreme Court, which state that mere sharing and retweeting are not criminal offenses.

The government in an affidavit before the Delhi High Court has said that there are already rules in place for removal of illegal content, through designated officers of internet companies. Even as non-compliance of 2021 Rules has become a hot potato, we are not even certain if the 2011 Rules are being complied with or not.

Regulation of tech giants in India

Singling out Twitter may not be in the spirit of the rules and the government must look at broader regulation for technology companies. Here, data protection laws are a necessity. It will ensure the Right to Privacy of Indians who constitute the biggest tech market in the world. It will also enable the government to earn taxes from such companies, which are said to be earning over Rs 20 lakh crore (approximately) from the Indian market.

Challenges to Intermediary Rules 2021 are pending before several high courts. If the government pushes too hard, it may result in the rules being done away with, which were anyway notified after more than two years. Law and order and police fall under state jurisdiction. Cyber Laws, IT and laws related to social media companies fall under the jurisdiction of the Central Government.

Instead of resorting to police action, it will be best if India resolves these tech issues through an effective legal framework and regulator. It will ensure the credibility of India in the ease of doing business rankings, as well as enable a proper ecosystem for regulation of tech companies in India.

The author is a columnist and advocate. He can be followed @viraggupta. Views expressed are personal.

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