On Wednesday, 16 June, news agency ANI reported that the Union government has taken away the “legal protection” provided to Twitter under the Information Technology Act due to its “failure to comply with the new IT Rules”. Union Minister for Information Technology Ravi Shankar Prasad also posted a series of statements on Twitter explaining the government's rationale behind taking away micro-blogging website’s “safe harbour”.
Prasad’s statement comes hours after Twitter, in a first such case against it, was named in an FIR by the Ghaziabad Police, which accused the social media platform of not deleting tweets with regard to an incident involving a 72-year-old Muslim man, Abdul Samad Saifi, being brutally thrashed in Loni.
However, is the central government legally empowered to take such a decision unilaterally? The Information Technology Act, the IT Rules, and global practices, suggest otherwise.
Understanding 'Safe Harbour'
Section 79 of the Information Technology Act provides legal protection or “safe harbour” to intermediaries from any liability that may arise from the content posted by a user on their platforms.
The legal protection under Section 79 also mandates intermediaries to observe due diligence and guidelines issued by the central government and the courts.
The right to “safe harbour” is also subject to certain restrictions. The intermediary shall "expeditiously" remove or disable access to content posted on its platform upon receiving "actual knowledge” of its illegality. In Shreya Singhal v. Union of India (2015) the Supreme Court explained the meaning of "actual knowledge” and observed that actual knowledge can only come from an executive order or a court notice.
Twitter Is an Intermediary
The term intermediary is defined under Section 2(w) of the Information Technology Act. Moreover, Rule 2(1)(v) of the IT Rules defines a “significant social media intermediary” ("SSMI”) as a “social media intermediary having a number of registered users in India above such threshold as notified by the central government”.
As per the Union government’s own notification issued on 26 February 2021, Twitter easily meets the threshold set for an intermediary to qualify as a SSMI.
As per the IT Rules 2021, SSMIs like Twitter shall have a physical office in India and shall appoint a Chief Compliance Officer, Nodal Officer, and Grievance Redressal Officer, all residing in India.
Rule 4 of these IT Rules makes the Chief Compliance Officer (CCO) responsible for ensuring that the SSMI follows due diligence and complies with the IT Act and the Rules. The Rule further provides that the said CCO will be held liable in court proceedings, if she fails to ensure that the SSMI observes due diligence while discharging duties under the IT Act.
Software Freedom Law Centre, a tech law and policy think tank, told The Quint that Rule 4 has raised concerns from all quarters as it may lead to imposition of criminal liability on the employees of social media giants operating in India.
Can Centre Strip Twitter off Its 'Safe Harbour'?
Rule 7 of the IT Rules states that if any intermediary fails to comply with the due diligence requirements, it will lose its legal protection from liability as provided under Section 79. This provision allows the government to initiate legal proceedings against an intermediary, whether under the IT Act or the Indian Penal Code, if it feels that the intermediary failed to comply with due diligence requirements.
However, initiation of legal proceedings doesn’t mean that the entity automatically loses its intermediary status under Section 79 of the IT Act. Rather, an intermediary always has an option to take the “shield of safe harbour” in any court proceedings.
“’Safe harbour’ is not a certificate or a stamp that is issued by the government. It is an inherent protection available to intermediaries.”SFLC
Therefore, the Union government can only initiate legal proceedings against Twitter for alleged non-observance of due diligence. It cannot unilaterally revoke the intermediary status or the “safe harbour” protection of Twitter.
Kazim Rizvi, a tech law expert and the founding director of The Dialogue, believes that whether Twitter has lost its "safe harbour" is a question that can be answered solely by the judiciary taking into consideration the pleas of both the parties, that is, Twitter and the government.
“Even if it is presumed that the court decides in favour of Twitter not being entitled to the ‘safe harbour’ status (this is a mere presumption), then also it would not amount to the platform losing its identity of being an intermediary.”Kazim Rizvi
Can the Government Prosecute Twitter?
As per Rule 7 of the IT Rules, an intermediary loses its 'safe harbour' and can be prosecuted if it fails to observe due diligence.
However, whether an intermediary has lost its “safe harbour” or not shall be decided by a court of law and not by the government. Additionally, what should be the liability of the intermediary after losing “safe harbour” and whether it should be prosecuted or not, is also decided by the court and not by the government.
Rizvi believes that the opinion of the court on the legality and constitutionality of certain provisions of the IT Rules, 2021 (which is already pending before various high courts) will also have an impact on the extent of liability of Twitter.
“The exact question on which the court will deliberate would be running into hypotheticals but what is important to appreciate is that any determination of the ‘liability’ of the intermediary is the job of the court, and the court alone will decide if Twitter can enjoy the protection of ‘safe harbour’ or not.”Kazim Rizvi