Twitter may have lost protection, but not tag

There appears to be a degree of misperception that the government has, on political whim, removed the tag of “intermediary” for Twitter — or more accurately, taken away the protections enjoyed by Twitter under Section 79 of the Information Technology (IT) Act, 2000 (as amended) for noncompliance with the Intermediary Guidelines of 2021. This has sparked concerns of “executive overreach”.

The basis of these concerns is incorrect. First, intermediaries are those covered under S.2(1)(w) of the IT Act. Twitter was and continues to be covered under this definition. While intermediary has a broad definition, some under this category enjoy comprehensive protection from any form of liability under S.79 of the IT Act. This protection ensures that they will not be held liable for third-party information, data, or communication link shared on their platforms, which they have no personal knowledge of or control over. This protection is what Twitter has lost due to noncompliance with the 2021 guidelines. Not its tag as an intermediary.

A Parliament-enacted law i.e., the IT Act mandates that the protection from liability given to intermediaries applies, provided they comply with conditions laid down therein. When an intermediary fails to comply, it automatically loses the protection or “safe harbour”.

Herein lies the basis for Twitter losing its protective shield: When the 2021 guidelines were notified, Twitter was aware it had to comply with them. It was open to Twitter to raise its contentions before a court of law, if it believed any of the provisions to violate its rights or entitlements. This was not done. Hence as of May 25, Twitter lost its protective shield (not its tag as an intermediary), when it failed to comply with the 2021 guidelines.

Not just Twitter, any social media platform which does not comply would stand on the same footing. This occurred with no further action from the government or executive branch. Any statements by the government are at best rhetorical that reiterates the automatic outcomes that law dictates. No more. No less.

A standoff between the Union government and Twitter is not new. Nor is it only under the new 2021 guidelines. Every noncompliance of a takedown notice resulted in the loss of protection to Twitter under S.79 of the IT Act. It then had to face investigations or inquiries to prove its non-complicity. The difference is that when Twitter refused takedowns, it lost the immunity with respect to the specific post. Due to its wilful failure to comply with the 2021 guidelines, it has lost the protection under S.79 of the IT Act in its entirety, and opened itself out for probable prosecution for all posts on its platform.

Therefore, losing safe harbour status was not due to an act of executive whim, but under parliamentary law and rules drafted within this framework.

Externalising the problem and holding a government liable for the company’s inaction, for no less than three months, is untenable. The company ought to have complied with the extant laws or contested the same in court. It cannot take advantage of its own wrongs.

That, however, does not mean that it could be culpable for each post. Each case will have to be evaluated on the basis of the facts of the case, including with respect to whether the company and/or persons in charge thereof are liable. Again, given the scale of posts and data on its platform, the real concern for Twitter or any other social media platform in this situation would be the unenviable task of having to meet the due process for litigation that may arise.

This was a risk that all were aware of well before the deadline. Given the risks involved, it was incumbent on all social media platforms to either comply or contest within timeframes given. Blatant refusal to comply with rule of law is not tenable.

When an intermediary fails to comply [with the law], it automatically loses the “safe harbour”