No "Safe Harbour" Protection For Twitter? What Does It Mean?

While government sources cited in a TOI report claim that the platform has lost its intermediary immunity provisions, advocacy group Internet Freedom Foundation claimed that the matter can only be decided by the court.

A recent Times of India report stated that microblogging platform Twitter has lost its 'safe harbour' provisions in India, following its failure to comply with the new IT rules that came into effect on May 26. Citing official sources, the report added that Twitter's representatives in India will now face charges under the Indian Penal Code (IPC) for any third-party 'unlawful content' on the platform.

Ravi Shankar Prasad, the Minister of Electronics and Information Technology published a tweet thread, where he reprimanded the microblogging platform for failing to comply with the new IT rules. While Prasad started off his thread by saying, "There are numerous queries arising as to whether Twitter is entitled to safe harbour provision," he stopped short of responding to whether Twitter did in fact lose the safe harbour immunity that is enjoyed by many tech platforms.

Meanwhile, advocacy group Internet Freedom Foundation (IFF) stated that the government does not have the power to revoke the safe harbour provisions, also known as intermediary liability protection under section 79 of the Information Technology Act, 2000, and that the matter can only be decided by the court.

Tanmay Singh, representing IFF, told BOOM, "Since the Information Technology Act, 2000 is a central legislation passed by an Act of Parliament, it can only be amended by a subsequent Act of Parliament. Amendments to the law cannot be brought in by the executive action of framing Rules under the Act."

Following the latest developments, a Twitter spokesperson mentioned that it has appointed an interim Chief Compliance Officer in India, and that the details will be shared with the government soon.

Also Read: Twitter Vs Indian Government: The Fight For Digital Sovereignty

What Is Safe Harbour Immunity?

Section 79 of the IT Act, 2000, states that an intermediary - in this case platforms such as Twitter and Facebook, that provide its platform for users to generate content - shall not be held responsible for any unlawful content posted by a third-party (users).

This immunity does not apply, if the intermediary is involved in the creation of the content, or has edited the content in anyway, or fails to remove such unlawful content from the platform upon being notified by the Government, or any other government agency.

What Are The Consequences Of Losing Such Immunity?

Without the immunity provided by the Section 79 of the IT Act, the microblogging platform could be held accountable for any "third party information, data, or communication link" made available or hosted by it. Twitter, and its top executives in India, could be open to legal action for any user-generated content that is found unlawful.

Such a consequence has already surfaced - a case has been filed against Twitter in Uttar Pradesh's Ghaziabad, regarding the assault of an elderly Muslim man on June 5.

The man, Sufi Abdul Samad, had alleged that a group of people had assaulted him, and forced him to chant "Jai Shri Ram". Soon, this claim was shared by a number of journalists and activists on Twitter.

Uttar Pradesh Police, however, denied the communal angle to the assault, and stated that the group who assaulted the man consisted of both Hindus and Muslims, who were allegedly upset over a set of amulets sold by the man, which they deemed as fake.

Following this incident, UP Police filed First Information Reports (FIR) against those who were found sharing the claim regarding the communal angle, including the microblogging platform where such claims were shared. Twitter was accused of not removing the tweets, after the authorities claim they informed the company of the misleading nature of the posts.

Can The Government Revoke The Save Harbour Provisions?

While government sources cited by Times of India claim that Twitter's safe harbour immunity has been revoked as a result of non-compliance with the IT Rules, advocacy group Internet Freedom Foundation provided an opposing view.

In a detailed thread, it stated that the intermediary status "is not a registration that is granted by the government", but is "a technical qualification as per criteria under the Section 2(1)(ua)(w) of the IT Act".

IFF stated that it is eventually up to the courts to decide whether Twitter can retain its intermediary states and the safe harbour provisions, and not the government.

IFF also pointed to the fact that an official announcement is yet to be released from the government where it states the loss of intermediary status for Twitter, and that media reports are currently depending on unnamed government sources to make that claim.

Mishi Choudhury, a tech lawyer and online civil liberties activist, agreed with IFF and stated that the intermediary status is not a 'trademark registration' but rather a legal defence claimed by companies in court whenever they are held responsible for third-party content. "Courts decide if and when a matter comes up," she said in a tweet thread.

"Intermediary liability, to put it simply, 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. 2(1)(w)," she added.

How Do The New IT Rules Affect The Intermediary Provisions?

According to Singh, who is an Associate Litigation Counsel at IFF, the Intermediary Guidelines introduced earlier this year can threaten the safe harbour provisions.

"S. 79(3) of the IT Act, only stipulates that intermediary protections may be lost only if the intermediary actually abets the hosting of unlawful content or fails to comply with a takedown order. The IT Act did not, for example, contemplate the loss of intermediary protection for the failure to appoint the correct officers, as the IT Rules do," Singh said.

"The IT Rules have also considerably shortened the timelines within which the intermediaries must comply with government orders for taking down unlawful content," he added.

While it is yet unsure whether the microblogging giant, with over 1.75 crore users in India, has lost its safe harbour provisions in India, it has recently appointed an interim Chief Compliance Officer in the country.

"An interim Chief Compliance Officer has been retained and details will be shared with the ministry directly soon. Twitter continues to make every effort to comply with the new guidelines," said a company spokesperson.

Updated On: 2021-07-16T11:31:31+05:30
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