Twitter failed to comply with new IT rules, says Ravi Shankar Prasad

According to rules, significant social media intermediaries have to notify the details of their Indian-based chief compliance officer, nodal contact person and grievance officer

The Minister for Electronics and Information Technology (MeitY) Ravi Shankar Prasad said on Wednesday that Twitter has "failed to comply" with the new Information Technology (IT) Rules that came into effect from May 26. This may mean that the microblogging platform can no longer claim legal defence under the safe harbour provisions of the IT Act, said legal experts.

Responding to reports about Twitter losing its safe harbour provision under its intermediary status in India, Prasad tweeted, "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."

He added that Twitter was given multiple opportunities to comply with the new rules, but has not done so.

"Twitter has not ceased to be an intermediary. It continues to be an intermediary as long as it complies with Section 2(1)(w) of the IT Act. But as of the night of May 26, if Twitter did not comply with the provisions of the IT Rules, 2021, it lost its 'suraksha kavach', which means it will now be exposed to legal liability, of both civil nature and criminal nature. According to Section 7 of the IT Rules, its top management is liable to be punished under the provisions of the IT Act and the Indian Penal Code," said Pavan Duggal, cyberlaw expert and Supreme Court advocate.  

MeitY had said on May 28 that major social media intermediaries have shared details as required under the new IT Rules, 2021, except Twitter, which is yet to send in details about its chief compliance officer (CCO).

The firm, however, said it has appointed an interim CCO, whose details will be shared with the ministry directly.

The ministry had written to all social media firms on May 25 - the deadline for compliance with the new IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

According to the rules, significant social media intermediaries, or those with more than 5 million users, have to notify details of their Indian-based CCO, nodal contact person and grievance officer.

"Non-compliance with the new IT Rules would make Twitter liable to lose its safe harbour status. There is no registration or certification provided by the government, which says safe harbour is lost. Safe harbour is a legal defence platform. It can be used in a court of law if a case is brought against it by a third party. Now, on the one hand, the State has a right to initiate legal action against the intermediary if it feels the platform has lost the safe harbour status, but it is incumbent upon the court to adjudicate whether the intermediary will be liable or not, keeping in mind the safe harbour jurisprudence," said Kazim Rizvi, founder of policy think tank, The Dialogue.

Digital rights organisation Internet Freedom Foundation (IFF) also said the intermediary status, as mentioned in the IT Act, is a “technical qualification” and not a registration granted by the government.

“According to Section 79, intermediaries are immune from liability/penalty if they comply with legal take-down requests of user posts from courts and public authorities,” tweeted IFF.

Essentially, social media firms do not create content on the platform, users do.

According to technology lawyer Mishi Choudhary, “The world over, the  predominant  consensus has been that it would be inequitable to hold them (platforms) strictly accountable for unlawful  user-generated  content.”

Twitter had, the ministry had said earlier, shared details of a lawyer working in a law firm in India as its nodal contact person and grievance officer. The rules require that these designated officers of significant social media companies must be employees of the company and reside in India.

On Tuesday, the Ghaziabad (Uttar Pradesh, or UP) Police registered a first information report against Twitter for failing to take down a viral video that could incite communal hatred.

"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 and indicates its inconsistency in fighting misinformation," said Prasad in his tweets. He further said the company had failed to address the grievances of users by refusing to set up a process as mandated by the law of the land.