On June 16 (Wednesday), sources from the Union government circulated a statement with the media, saying that Twitter has lost its legal protection for third-party content, for failing to adhere to the new IT rules. Government sources said that Twitter has “lost its status as an intermediary platform” in India due to non-compliance with new IT rules. This means that, instead of being considered just a platform hosting content from various users, Twitter will be directly and editorially responsible for any posts published on its platform. This effectively implies that if there is any charge against Twitter for alleged unlawful content it would be treated as a publisher – not an intermediary – and be liable for punishment under any law, including the Information Technology (IT) Act, as also the penal laws of the country, the sources added.
The statement from government sources came shortly after the Uttar Pradesh police named Twitter in an FIR along with seven others including journalists, for ‘spreading misinformation on the attack on a 70-year-old Muslim man in Ghaziabad. Twitter has had several faceoffs with the Indian government over the past few months, including during the farmers' protest and later when it tagged political posts of several leaders of the ruling party BJP as "manipulated media", triggering a sharp rebuke from the Union government.
However, responding to reports that Twitter may lose its legal protection, experts have said that it is not up to the government to take away Twitter’s status as an intermediary. In a series of tweets, the Internet Freedom Foundation (IFF), a group of digital experts who focuses on technology and fundamental rights, explained that the “intermediary status” is not a registration that is granted by the government but is a “technical qualification” under the IT Act.
Twitter is granted protection from legal action under Section 79 of the Information Technology (IT) Act, which states that an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by them. Under the Act, an intermediary refers to any person who, on behalf of another person, receives, stores or transmits that record or provides any service concerning 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-marketplaces and cyber cafes.
“Intermediaries are immune from liability/penalty if they comply with legal takedown requests of user posts from courts and public authorities,” IFF explained.
5/ As per Section 79, intermediaries are immune from liability/penalty if they comply with legal takedown requests of user posts from courts & public authorities. As we explain, this is threatened by the IT Rules, 2021. https://t.co/LXdbvRP2uY
— Internet Freedom Foundation (IFF) (@internetfreedom) June 16, 2021
The Internet Freedom Foundation also pointed out that the IT Act or IT Rules do not contain any power or process for granting or revoking the intermediary status. “There is no immediate penalty that flows from non-compliance beyond the loss of immunity determined by Courts on evidence and legal submissions,” IFF said.
“When companies like Twitter are prosecuted, they will seek protection before courts, which will decide if it is an intermediary, not the government. The IT Act and Rules do not contain the power for any registration, grant or revocation process or notification of an intermediary status,” IFF said.
8/ The stories citing a loss of intermediary status do not refer to any government order or gazette notification rooted in a legal provision. Hence it is not a legal determination. Even an official press statement is not publicly available yet.
— Internet Freedom Foundation (IFF) (@internetfreedom) June 16, 2021
RT this. #TwitterBanInIndia pic.twitter.com/LrS2hgEZfQ
The Union government had given ‘one last chance’ to Twitter to comply with the new IT rules, as the microblogging platform had not made immediate appointments of key personnel, mandated under the new guidelines that came into effect on May 26. On June 15, Twitter said it has appointed an interim Chief Compliance Officer. A Twitter spokesperson said the company continues to make every effort to comply with the new guidelines and is keeping the IT Ministry apprised of progress at every step of the process.
The IT rules brought in by the Union government have been contested right from when they were released to the public in a draft form. Many experts have voiced concerns over several factors, including the privacy of users on social media and censorship of digital news media, which will ultimately affect citizens’ rights in India. The main concern is the Union government’s requirement of traceability of the originator of a message, update, forward, or any information, which would mean platforms like Whatsapp, Signal etc would have to break end-to-end encryption, which would lead to a privacy breach for users.
The IT rules have been challenged in multiple high courts as well. The High Courts in Delhi, Chennai, Karnataka and Kerala hearing petitions against the rules. WhatsApp has also challenged the IT rules in the Delhi High Court, calling them unconstitutional and against human rights.