About ‘last notice’ & Twitter failing to comply with the intermediary rules
The Ministry of Electronics and Information Technology (MeitY) has sent ‘one last notice’ to Twitter to comply with the new intermediary rules last Saturday. The letter was addressed to Jim Baker, Deputy General Counsel to Twitter. The Ministry had previously sent letters on 26th May, and 28th May, 2021. It must be noted that the new intermediary rules came into effect on 25th May for significant social media intermediaries.
Twitter’s Recent Troubles
At the core of conflict is the issue of Twitter labelling/ flagging tweets on its own. Twitter issued a press release and said that the present regulations hinder free and open public conversations. It also expressed concerns about the safety of its employees in India. However, MeitY also issued a press release and said that it’s about time Twitter complies with the laws of India.
Twitter is also facing legal proceedings in which the Delhi High Court stated that Twitter must comply with the rules, unless they have obtained a stay. The High Court has asked Twitter to submit compliance details before it within three weeks.
What do the rules say?
The new rules have additional due diligence requirements for significant social media intermediaries- basically social media intermediaries who have more than 50 lakh users registered in India.
These additional requirements include the appointment of a Chief Compliance Officer who shall be responsible for ensuring compliance with the rules. Any social media intermediary will also have to appoint a nodal officer for contact, and a resident grievance officer. Such an officer must be an employee of the intermediary in question.
Apart from appointments, a significant social media intermediary also must allow voluntary user verification, identify the first originator of a message, implement a mechanism to receive complaints and remove content, publish compliance reports, and endeavor to proactively identify and remove sexually explicit content.
Where is Twitter at fault?
In its previous notices, the government had asked Twitter to confirm if it had achieved compliance with the new rules. However, the government says that Twitter’s responses ‘neither address the clarifications sought by this Ministry nor indicate full compliance with the Rules’.
Although Twitter has appointed a grievance officer and published his details on its website, it has not informed about the Chief Compliance Officer. Further, the Nodal Contact Person and Resident Grievance Officer is not an employee of Twitter Inc. in India.
Problems with the letter
Although the letter addresses the right problems, it also threatens Twitter of consequences- in a wrong way. The letter says:
Though with effect from 26th May 2021, in view of Twitter Inc’s non-compliance with the Rules as noted above, consequences follow. However, as gesture of goodwill, Twitter Inc. is hereby given one last notice to immediately comply with the Rules, failing which the exemption from liability available under Section 79 of the IT Act, 2000 shall stand withdrawn and Twitter shall be liable for consequences as per the IT Act and other penal laws of India.
Firstly, the government does not have any power to ‘withdraw liability’ as per the Information Technology Act or the Information Technology Rules.
Secondly, if any intermediary doesn’t comply with the laws, or rules, the government once again has no power to show any ‘gesture of goodwill’. The immunity from any criminal liability will automatically cease to exist.
So what happens if Twitter doesn’t comply?
No. There is no ban.
Section 79 of the Information Technology Act provides that any intermediary has immunity from liability if it performs the required due diligence. However, if it doesn’t perform the due diligence, it’s immunity will be stripped.
Once the exemption from liability is not available, Twitter will become an abettor to any crime. How? Let’s take an example to understand.
Let’s say Mohit tweets a morphed photograph of Anjali. Naturally, Mohit is at fault here. But Twitter is also at fault here, since it is hosting illegal content.
Section 67 of the Information Technology Act uses the terms ‘whoever publishes or transmits or causes to be published or transmitted’. And Twitter here ’caused publication’ of Anjali’s morphed images. Hence, Twitter would be equally liable for the offence as Mohit, unless intermediary exemption protects Twitter.
In such circumstances however, even without a ban, if Twitter doesn’t wish to comply with the local laws, folding its Indian business would be a sensible decision.
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