Courts, not govt to decide intermediary status: law experts on Twitter row

Reports on Wednesday suggested Twitter may have lost its intermediary status under the Information Technology Act for not complying with the newly notified Information Technology Rules, 2021.

It is the courts, not the government, who will decide on whether Twitter or other social media intermediaries can lose this status under law, legal experts have said in response to reports that Twitter May have lost its intermediary status in India.

Reports on Wednesday suggested Twitter may have lost its intermediary status under the Information Technology Act for not complying with the newly notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The intermediary liability under Indian law,  according to technology lawyer Mishi Choudhary, “refers to the extent  of  liability  that  an  intermediary  stands  to  incur  due  to  the  non-permissibility  under  law  of  content  they deal  in. Twitter or any other "Intermediary" is defined by IT Act S(ection) 2(1)(w).”

“GoI (Government of India) does not decide about their legal shield/safe harbor/liability. It's not like Trademarks or some other"registration" status. Courts  decide if and when a matter comes up,” she tweeted.

As per the new IT Rules, significant social media intermediaries, or those with more than 50 lakh users, have to notify details of their Indian-based Chief Compliance Officer, Nodal Contact Person and Grievance Officer, in addition to several other compliance requirements.

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

“As per Section 79, intermediaries are immune from liability/penalty if they comply with legal takedown requests of user posts from courts & public authorities,” IFF tweeted.

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

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

While legal experts have questioned the Constitutionality of the new IT Rules on earlier occasions, the standoff between Twitter and the government has been ongoing for a while now.

Beginning with some content takedown requests that Twitter refused to take down in January related to the farmers’ protests, the government has time and again singled out the microblogging platform, alleging non compliance with India law.

More recently, Twitter was questioned on why some content shared by Bharatiya Janata Party leaders was tagged as “manipulated media”.

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

"We are keeping the Ministry of Electronics and Information Technolgy apprised of the progress at every step of the process. An interim Chief Compliance Officer has been retained and details will be shared with the Ministry directly. Twitter continues to make every effort to comply with the new Guidelines," a Twitter spokesperson said Wednesday.

Independent lawyer and legal researcher Divij Joshi also tweeted saying that the determination of whether a firm is an intermediary or not is a factual, case by case determination. 

"However, safe harbour *is* tied to compliance with IT Guidelines and Section 79. What that implies is that, for the entire period of non-compliance with the new rules, *all* intermediaries are unable to claim safe harbour status for *all* third party content hosted by them," he added.

Twitter vs Indian govt- The timeline:

Jan 30/31: #ModiPlanningFarmerGenocide starts trending on Twitter, govt says "genocide" could disrupt public law and order

Feb 1: Twitter blocks a few hundred accounts after legal request from govt under Section 69(A) of IT Act

Feb 1: Twitter restores many accounts after withholding them for a while, says content does not violate Twitter policy

Feb 3: Govt said Twitter may face penal action for non-compliance of legal orders under Section 69A(3)

Feb 3: International celebrities pop star Rihanna and climate change activist Greta Thunberg tweet in support of farmer protests

Feb 9: Ministers, govt departments call for moving from Twitter to Koo

Feb 10: Twitter puts out blog explaining issues, meets with MeitY. MeitY says Twitter should respect law of land

May 21- MeitY objects to Twitter using the tag ‘manipulated media’ on some tweets by Indian political leaders

May 21- Delhi Police Special Cell serves notice on senior Twitter India MD in relation to Toolkit issue

May 24- Two teams of Delhi Police Special Cell  land up at Twitter's Delhi and Gurugram offices, in relation to toolkit issue

May 28- MeitY says most cos have complied with new IT Rules, except Twitter, yet to send in details about its chief compliance officer

June 5- MeitY gives Twitter one last chance to comply with the new rules

June 8-  Twitter writes to MeitY, asks for a week more for compliance with IT Rules