Thursday Brief

Twiiter is adopting a confrontation attitude with the IT ministry, as repeatedly they have failed to comply with the guidelines issued by the ministry. Twitter will be considered an intermediary once it follows the new Information Technology guidelines and it will no longer be protected from penal action under the IT Act, which absolves social media firms of liability for third-party content if it did not do so. Now if there is a court case, Twitter can not seek safe harbour under the IT Act. In any case, filed after 26^th May, Twitter can not say it is an intermediary and claim exception. Govt gave Twitter extra time to comply with the rules, but Twitter failed to meet even its own deadline of a week to make the appointments as per the new rules.

Twitter and the govt have had disagreements over content takedown orders and the company’s actions against prominent people linked to the ruling BJP for violation of its terms of use.

The main issue is Twitter failing to adhere to norms while appointing executives in the toles of Resident Grievance Officer, Nodal Officer, and Chief Compliance Officer.

The IT Minister said yesterday and flogged Twitter for having deliberately chosen the path of non-compliance. The minister further added that “It is astounding that Twitter which portrays itself as the flag bearer of free speech, chooses the path of deliberate defiance when it comes to the Intermediary Guidelines. Further, what is perplexing is that Twitter fails to address the grievances of users by refusing to set up a process as mandated by the law of the land. Additionally, it chooses a policy of flagging manipulates media, only when it suits, its likes and dislikes,”

In the short run, since the protection accorded to Twitter under Section 79 of the IT Act is now gone, it opens up the platform to the possibility of any and all penal action that is likely to be taken against it as a publisher of content.

This means that if someone puts out any content on Twitter that leads to some form of violence, or violates any Indian law with respect to content, not only the person that has put out the tweet will be held responsible, even Twitter will be legally liable for the content as it no longer has the protection.

Now UP Police has filed an FIR against Twitter Inc, its India unit, and seven others in connection with a video of an attack on an elderly person. Police said  Twitter failed to flag posts related even after they issued clarifications negating the alleged communal nature of the crime. This is the first FIR lodged against Twitter in India.

Top industry groups have sought the withdrawal of a specific clause in India’s new IT rules, which imposes personal criminal liability on the Chief Compliance Officer of significant special media companies such as Twitter and Facebook.

Experts are of the view that the personal criminal liability of the compliance officer is one of the main reasons why companies are hesitating to name local officers for this role. Experts and groups have requested the ministry concerned to finalise and publish the standard operating procedures (SOP) for relevant provisions. Apart from waiver on personal criminal liability of employees, they had also requested that only a few central govt agencies be authorised to seek content takedowns as well as specific information from social media platforms.

Legal experts are of the view that world over, govts are trying to address the issue of misinformation and disinformation. No govt is threatening private employees with criminal liability for user-generated content. This goes against the intent of the IT Act itself and the safe harbour provisions provided to the platforms.

This criminal liability provision will act as a deterrent, as employees will hesitate to take the post of Chief Compliance officer as fear of criminal action will always be troubling the employee.

WhatsApp is the only company to have challenged the IT rules on its mandate to trace the first originator of the message citing freedom of expression.

Looks like it is going to be difficult for govt to enforced criminal action on the employees, as how he can be held responsible , if company’s policy is different than what is required by local law. Most of the social media group companies have their headquarters in the USA, and their management thinks they are above the law anywhere if something is permitted in the USA and not allowed in the other countries. But they are forgetting one thing, if they have to operate here they have to follow the law. If they do not agree with something they are at liberty to discuss the same with the ministry, but having a confronting attitude is not going to serve the purpose, because minister can always say these are our laws and if you can not follow then discontinue your business in our country. I still remember the case of Coca-Cola in the year 1977, when they were not ready to accept the law of the land, they had to shut down their Indian operation.

Let us see how this impasse will end.

Waiting for your views and comments.

Anil Malik

Mumbai, India

17^th June 2021