On February 25, 2021, the Government of India notified the new rules for the Intermediaries under Section 79. The new intermediary guidelines were discussed in detail in this website . Naavi.org also suggested that a “Digital Media Compliance Guidance Center” would be activated to help the digital media comply with the requirements of the “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021” .
This notification had two parts. The first part was related to the due diligence to be practiced by intermediaries to be able to invoke the safe harbor provisions of Section 79 of ITA 2000. The second part consisted of the ethical guidelines that the digital media were expected to follow as a self regulation.
Non Compliance of the guidelines had the effect of disallowing the safe harbor provisions under Section 79 of ITA 2000 and make any digital publication liable for any offence committed with the use of a message posted in the platform.
A time has come now for the Government to show if the notification was only a paper tiger.
On the one hand, no digital media organization has come up with either a self regulatory guideline as suggested or created a self regulatory body at the industry level. The Meity/I & B ministry also has also not specifically announced the formation of the Inter departmental committee or an “Authorized officer” for issuing the directions.
The industry has completely ignored the joint press meeting of Mr Ravi Shankar Prasad and Prakash Javdekar as if they are a no body.
Twitter has now gone a step further to declare that the tweets published by some BJP leaders are “Manipulated”. In other words, when there is an FIR registered for a similar charge, Twitter has come to a conclusion that the allegations made in the FIR are true.
It was therefore natural for the Police to summon Twitter and share with it the evidence that Twitter may have to come to a conclusion that the “Tool Kit” referred to by the tweets were “Manipulated news”. This actually is a charge of “Forgery” for which the verified tweeters can be prosecuted.
When the Police issued the summons to Twitter, it appears that they have re-directed the Police to their US office and washed their hands off the responsibility to explain the process behind the tag “Manipulated” assigned to some of the tweets.
Twitter has also challenged the Government of India and has refused to follow the directions issued by the Government. They have not been in compliance with the February 25 guideline which require that there has to be a “Chief Compliance Officer”, “Grievance redressal officer” and a “Nodal officer ” all of whom have to be located in India. They should be able to redress the grievance within 15 days. These were expected to be done within a period of 3 months from the date of notification, which expires today. (Please refer para 4 in page 5 of the notification available here)
Since we donot see any announcement from Twitter which is classified as a “Significant Data Fiduciary”, Twitter is not in compliance of this guideline.
Further, by resisting the notification of the Government to remove the “Manipulated” tag, Twitter has declared itself to be out of the safe harbor provision of Section 79 which states that the provisions that “intermediary shall not be liable for any third party information” in respect of any law applies only if
-the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored; and
-the intermediary upon being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary expeditiously removes or disables access to that material on that resource without vitiating the evidence in any manner.
Twitter is placing its faith in the support of the opposition parties in India and trying to project itself as the “Champion of Freedom of Speech”. It fancies itself as a media that will bring about a regime change in India.
The Government on the other hand is behaving cowardly as if it has no powers under the law of the land and trying to be sub servient to the corporate entity of Twitter which has proved to be a manipulator of political systems in different countries including USA itself.
In the given context the action of Delhi Police who were investigating the FIR against Mr Sambit Patra summoning Twitter to provide evidence in its hands was absolutely justified.
However, since Twitter is likely to manipulate any evidence which may be lying within the systems in its office in India including the personal laptops of the key officials, it is necessary for the police to seize all the computers used by the key persons in Twitter India responsible for deciding whether the “Toolkit Document” was forensically examined and found to be “Manipulated” and whether there was any other process involved in tagging the tool kit as “manipulated”.
It may be necessary to even temporarily close the Twitter office and bring in forensic investigators to do their investigations. Merely roaming around Twitter office and issuing a summons is not sufficient.
At the same time, since Twitter is not fulfilling the February 25 guidelines, it has no protection as an “Intermediary” and hence if there is any complaint from BJP that Twitter is indulging in a conspiracy to destabilize the political system in India, it has to be investigated under the appropriate sections of IPC. If there is any evidence of tampering of evidence, then they should also be charged under the relevant provisions of IPC.
In this “Conspiracy”, the earlier tweets of “Greta Thunberg” to fuel the farmer’s unrest should also be investigated.
There is no doubt that by the time you read this article, you may find that our honourable Supreme Court might have been moved and a stay might have been obtained by Twitter for any further enquiry by the Delhi Police. Hence the issue of whether Twitter is behaving like an extra judicial authority more powerful than a Government body will be decided by the Court. Given the TRP value of this case, the Judiciary is likely to be soft on Twitter and the Government of India does not have a reasonable chance of a fair trial.
Hence Government should also think of other measures to discipline Twitter and establish the “Rule of Law” in India.
This requires that all Government agencies including Mr Modi , the PMO and ministries and ministers should immediately delete their accounts and also ask for “Porting of the data” back to them. The Government/Police have every right to ask the registration details of all relevant Twitter accounts which have posted messages in support of the “Manipulated” tag as they could be fake accounts.
If the Indian Data Protection Act was in place, Government could have asked for exercising the “Right to Forget” for all tweets of individuals connected with the Government and imposed a fine upto 4% of global turnover if they had failed to do so.
If the Government of India and its ministers etc take a stand to withdraw from Twitter, even the millions of fake accounts of the trolls of the opposition also have to withdraw since there will be no audience for their trolls. This should be a significant enough blow to Twitter.
But it does not appear that the Government has the courage to go anywhere beyond issuing a summon. Probably they will be too happy if the Supreme Court obliges Twitter by issuing a stay on the proceedings since there will be an excuse for inaction.
We the people of India are used to colonial powers calling shots on our lives and therefore are not uncomfortable with Twitter branding supporters of our Government as “Manipulators” and placing faith on the views of opposition members. We will therefore be comfortable to absorb this insult and our Courts would also be too happy to tag themselves “Champions of Freedom of Expression” and let Twitter kind of organizations dictate the law enforcement in India.
The question therefore is “Was the February 25 notification meant to be only a paper tiger? or was the Government serious?”. Let us hope we will get an answer today.
Naavi
Also refer:
Should we revisit Safe harbor principle?..rssr.in
Facebook, Twitter to be blocked in India?… Deccan Herald
Well said. You have very well expressed your concerns. Keep up the good work. Best wishes.