Twitter has reportedly lost the coveted “safe harbour” immunity in India after failing to appoint statutory officers on time, as mandated by the new Information Technology (IT) Rules, 2021. With this, the social media giant becomes the only American platform to have lost the protective shield – granted under Section 79 of the IT Act, even though rival platforms such as YouTube, Facebook, WhatsApp and remain protected. As reported by The Times of India, the new development could mean that Twitter’s senior executives that include its India managing director, face legal actions under relevant IPC for ‘unlawful’ activities on the platform – even if conducted by users. Earlier this week, Twitter said it appointed an interim Chief Compliance Officer (CCO), and the details of the officer were not yet shared with the government. The company also posted job openings for a Nodal Officer and Resident Grievance Officer – the two key positions mandated by the central government’s IT Rules, 2021.
What is safe harbour protection: Before we dive deep into the consequences that Twitter could face ahead, let’s take a look at what the law states. According to Section 79 of IT Act, 2000, “an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him,” therefore providing Safe Harbour protection. To put it simply, the law notes that intermediaries such as Twitter or your Internet Service Providers (ISPs) are not liable to punishment if third parties (users) misuse the infrastructure, in this case, the platform. However, the protection is guaranteed only when the intermediary does not ‘initiate the transmission,’ ‘select the receiver of the transmission,’ and ‘modify the information contained in the transmission.’ It means that as long as the platform acts just as the medium to carry out messages from users A to user B, that is, without interfering in any manner, it will be safe from any legal prosecution.
The inception of Safe Harbour protection under Section 79, IT Act: In its original form, the IT Act 2000 provided little or no Safe Harbour protection to internet intermediaries as the definition of the intermediary was restricted. However, things began changing in 2004, in a case where a student posted an obscene clip on bazee.com (now a subsidiary of the e-commerce site eBay) for sale. The student and the CEO of the company, Avnish Bajaj, were both held later for letting pornographic material circulate online. Bajaj challenged the proceedings against him, contending that he could not be personally held liable for the listing, and that the MMS was transferred directly between the seller and buyer without the intervention of the website. The executive was acquitted, the case eventually resulted in the addition of Section 79 in the IT Act to provide immunity intermediaries.
Why has Twitter lost the protection: Over the years, social media platforms have evolved and often tend to act as gatekeepers. For instance, Twitter banning Donald Trump and adding “manipulated media” label on select posts have been questioned by excerpts. In other words, an intermediary’s ability to “modify the information contained in the transmission,” opens rooms for revision of the law, experts believe. Hence, the government introduced the IT Rules 2021 in December last year and implemented it in May 2021. As per the new order, all social media platforms with more than 50 lakh (five million) users will need to appoint a Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer from India to smoothen the grievance mechanism for citizens. The officers will need to acknowledge queries with 24 hours and resolve them in 15 days from the date of receipt. Twitter failed to fill in these key positions, and due to this, the company lost precious immunity, sources told The Times of India. The microblogging platform was even at odds with the government over the new rules and expressed the guidelines potentially threaten freedom of expression. The Ministry of Electronics & IT (MeitY) then responded by saying Twitter’s statement is an attempt to defame India to hide their own follies. The relationship between the two soured thereafter, leading the government to issue a “one last notice” to comply with the new IT rules, 2021.
What can happen next: Once a company loses the Safe Harbour protection, technically, officials are liable to punishment if a post even by a third user violates local laws. The new IT Rules 2021 do not mention any ban for non-compliance. But with an estimated 1.75 crore users in India, Twitter would likely fill key positions soon to comply with the new norms laid by the government. As mentioned, the company already appointed an interim Chief Compliance Officer earlier this week.