In the midst of the pandemic, when Twitter was the go-to place for getting help, a different game was being played out between the platform and the Indian government.

The labelling of a tweet by BJP national spokesperson Sambit Patra involving an alleged “toolkit” as 'manipulated media' led to Twitter India’s offices being visited by the Special Cell of the Delhi Police.

Twitter has had its share of confrontations with leaders and governments, including with the former president of the United States Donald Trump, when various labels were added to his tweets. The narrative soon shaped into a confrontation between the mighty Indian government and Big Tech and the issue taking a different political hue with #BanTwitterIndia trending on the platform.

Safe Harbour and the new IT Rules

Platforms like Twitter and Facebook enjoy protection from liability arising out of user-generated content in most jurisdictions. In India, this protection – granted under Section 79 of the Information Technology Act, 2000 – is conditional upon the intermediary observing due diligence while discharging duties under the Act and observing guidelines prescribed by the Central government.

These guidelines that were first notified in 2011 were substituted by the new rules issued on February 25, 2021. The new rules created a new class of intermediaries called 'Significant Social Media Intermediaries'. A notification issued on February 26 set the threshold for any social media intermediary to be categorised as significant as having 50 lakh registered users in India. These significant social media intermediaries have additional compliance obligations, like having a physical office address in India and having three levels of officers – a chief compliance officer, a grievance officer and a nodal officer, all resident in India. These additional provisions came into force on May 26, 2021.

The major concern for social media companies has been the provision that mandates that the chief compliance officer shall be liable in any proceedings relating to third-party information when the intermediary fails to ensure due diligence. The action of the police in the case of the labelling episode has only fortified these fears.

Targeting Twitter on Twitter

Ravi Shankar Prasad, minister for information and technology, in a series of tweets claimed that Twitter has failed to comply with the intermediary guidelines. He further stated that Twitter was given multiple opportunities to comply with the guidelines and that it has deliberately chosen the path of non-compliance. The back and forth between the government and Twitter has played out in the media and on Twitter itself. It doesn't help anyone’s cause when nuanced policy and legal discussions are made into a public spectacle and converted into a "government vs tech company" feud.

Adding to the fire this week were multiple reports in the media that Twitter has lost its intermediary status. What was lost in the flurry of action was the fact that intermediary is defined in the Information Technology Act based on the nature of service rendered by the provider. Platforms like Facebook and Twitter as well as telecom providers like Airtel fall into this category. The safe harbour protection which is granted by the IT Act is a defence that the intermediary platform can take before a court of law when it is made a party in a legal proceeding related to liability arising from user-generated content.

To give an example, if Twitter is made a party in a post that is alleged to be defamatory, they can claim safe harbour protection under the Act. The prosecution on other hand could counter this by arguing that  Twitter has not complied fully with the intermediary guidelines and hence are not eligible for protection. The court will then have to make a decision on whether there has been substantive compliance with the rules. Before fixing liability on Twitter or any of their employees, many factors including the question of any omission committed on the part of the employee or the platform will have to be weighed in by the Court. Thus, the whole question of safe harbour protection is best left to be adjudicated by a court based on the facts before them.

No role for the government

The government does not have any role in deciding whether an intermediary is eligible for safe harbour protection. This determination will have to be made by the concerned court in appropriate proceedings.

The government, at least as seen from the tweets of Ravi Shankar Prasad, still seems to be focused on the manipulated media episode involving Sambit Patra while the rules itself mandate Twitter to inform users not to post content that is patently false and untrue.

The platform is also expected to inform users that it has the right to terminate access of the users if they do not follow this. The government cannot ask Twitter to follow the rules when it suits them and threaten them when they act as per the rules. After having notified the rules, the government should now leave the interpretation to the courts and desist from playing to the galleries.

Prasanth Sugathan is a technology lawyer and legal director, SFLC.in

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