Criminal action can be initiated against the company for unlawful content
Twitter has lost its intermediary status in India for not complying with the new Information Technology Rules which came into force from May 26. Government sources told FE that the implication of this development is that if tomorrow there’s any charge against the microblogging site for alleged unlawful content it would be treated as a publisher – not an intermediary – and be liable for punishment under any law, including the IT Act, as also the penal laws of the country.
Twitter has, thus, become the first firm amongst the likes of Facebook, Google, Instagram, WhatsApp, LinkenIn, etc, to have lost its intermediary status. Other such firms have submitted their compliance report to the government.
“It is evident that in spite of repeated indulgence granted, including a last notice on June 5 as a goodwill gesture, Twitter has not complied with the Intermediary Guideline Rules under the IT Act having statutory force as they have been framed in exercise of powers under Section 87 of the IT Act. Rule 7 of the Rules very clearly enjoin that where an intermediary fails to observe these rules the provisions of sub section (1) of section 79 of the IT Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law including the IT Act as also the penal laws of India with respect to unlawful content published on that platform,” government sources said, adding, “In view of the above, the Rule 7 and the course suggested therein appears to have come into effect”.
Section 79 of the IT Act provides social media companies intermediary status, which provides them exemptions and certain immunity from liabilities for any third-party content and data hosted by them.
“What action could be taken against an intermediary if it failed to comply with the rules was a grey area in the earlier law. Now it has been made crystal clear that criminal action can be initiated,” Pavan Duggal, cyber law expert and advocate in Supreme Court, told FE. “Social media firms should be proactive in complying with the new intermediary rules as the provision for criminal liability, which is a new feature in the law, can have serious consequences for them,” Duggal added, stating that mere challenging the law in the court will not be of use unless the court stays the law.
Sources said that Twitter being a significant social media intermediary was legally required to comply with the new Intermediary Rules by May 25, 2021, after the expiry of three months’ time given to all intermediary after notification of Rules by the government, but it did not comply.
Officials said that in the first communication that came from Twitter on May 28, their only contention was that they were in the process of recruiting a nodal contact person (NCP) and resident grievance officer (RGO) along with undertaking the process of providing a physical contact address in India.
Twitter subsequently sent an email on June 2 to the government stating that a lawyer working in a law firm – Dharmendra Chatur – has been appointed as an interim nodal contact person and resident grievance officer. Government sources said that Chatur was not an employee of Twitter as required by the guidelines.
The government sent Twitter a communication on June 5 wherein as a goodwill gesture the company was provided one last chance to immediately comply with the Rules.
According to government officials, on June 6, Twitter replied that they had appointed a nodal contact person and resident grievance officer on contractual basis as an interim measure.
Regarding chief compliance officer (CCO), Twitter assured the government of finalising the appointment and providing details latest within a week. However, in their latest communication on June 13, the company has only said that it has posted a job description to hire CCO, NCP and RGO and that it will endeavour to fill these roles as quickly as possible.
“The relevant point is that contrary to their promise no chief compliance officer even as per their promise is yet appointed even on interim basis,” government sources said.
Sources also pointed out that in its latest communication Twitter has conveyed a “purported advice of a purported consultant” that establishing India office of Twitter Inc is necessary for hiring chief compliance officer on a permanent basis. “No one prevented Twitter from appointing a CCO as an interim arrangement,” officials said.
Twitter could not be contacted for comments till the time of going to the press.