The Government of India, on 5th of June, 2021, issued a notice to Twitter and gave it one last chance to comply with the new IT rules. It also warned that failure to comply with the norms will result in the platform losing exemption from the liability of intermediary under the IT Act.
NEW IT RULES
The new IT rules for social media companies came into force on 26th of May, 2021. These rules make it mandatory for large social media platforms like Facebook and Twitter to undertake greater due diligence and ensure that these platforms become more responsible and accountable for the content hosted by them.
The rules also direct major social media intermediaries, which provide their services mainly in nature of messaging, to enable identification of the "first originator" of any fake information that can undermine the sovereignty of India, the security of the state, or public peace and order. The rules require social media intermediaries with more than 50 lacs users to appoint a grievance officer, nodal officer and a chief compliance officer. These personnel should be the residents of India.
As per the new IT rules, social media companies will have to remove flagged content within 36 hours. If the content is flagged for nudity, pornography, etc., it should be taken down within 24 hours. The Centre had said the new rules are formulated to prevent abuse and misuse of such platforms. These rules also provide the users a robust mechanism for grievance redressal.
The Ministry of Electronics and Information Technology under the Government of India said in the letter that Twitter's refusal to adhere to the rules demonstrates its "lack of commitment and efforts towards providing a safe experience for the people of India on its platform".
The notice further read that Twitter, despite being operational in India for more than a decade, it is difficult to belief that Twitter Inc has doggedly refused to create a mechanism that will enable the people of India to resolve their issues that they face on the platform in a timely and transparent manner and through fair processes.
The IT ministry, in its notice, stated that India had been one of the first countries of the world, besides the parent country of Twitter Inc, which enthusiastically adopted the micro blogging platform Twitter.
The notice asserted that the users who are abused or harassed on the platform or are subject to defamation, sexual abuse or become victims or a whole range of other abusive content shall get a redressal mechanism that can provide them timely justice through a due process of law. The people of India, who are active on Twitter, demand and deserve a fair mechanism to address their grievances and also to resolve their disputes.
However, the response of twitter to the earlier notices of the Ministry neither address the clarifications sought by the Government nor it indicates Twitter’s intention to comply with the rules. Twitter has taken no steps for the appointment of Chief Compliance Officer that is mandated under new IT rules.
Also, the Resident Grievance Officer and the Nodal Contact Person appointed by Twitter are not the employees of Twitter Inc in India as prescribed by the rules. The IT ministry also added that office address mentioned by Twitter is that of a law firm in India, which is not in accordance with the rules.
The ministry said that the new IT Rules came into effect from May 26, 2021, and non-compliance of Twitter with new rules will lead to unintended consequences including Twitter losing exemption from liability as an intermediary under the Information and Technology Act.
However, as a gesture of goodwill, the Government has given one last notice to immediately comply with the rules. If it fails to do so with immediate effect, the exemption from liability available to it under section 79 of the Information and technology Act, 2000 shall stand withdrawn. Also, Twitter shall be liable for consequences in accordance with the IT Act and other penal laws of India. The notice, although, did not mention any specific date to comply with the rules.
SECTION 79 OF THE IT ACT, 2000
Section 79 of the Information and Technology Act, 2000 provides for the exemption to digital platforms from the liability of intermediary in certain cases. It states that an intermediary shall not be liable for any third party data, information, or communication link made available or hosted by it[i]. This immunity will be granted only when the intermediary has merely provided access or temporarily stored the third party information and has not initiated the transmission or modified the information contained in the transmission[ii].
If the intermediary has abetted, aided or conspired the commission of the unlawful act or upon receiving its knowledge, has not informed concerned authorities, in such case, the immunity from trial stands dissolved. The intermediary can be moved against for criminal action in the court.
As per data recently released by the Government, there are estimated 1.75 crore Twitter users in India. Twitter has not affirmed to the new IT Rules. The IT Ministry has served last and final notice to Twitter for complying with the rules. Non-compliance would lead to the platform losing its intermediary status that grants it the immunity from liabilities over any third-party data hosted by it. It can be inferred that in case of non- compliance, they can be held liable for criminal action under IT Act and other penal laws in India.