With IT Minister Ravi Shankar Prasad slamming Twitter once again, ironically in a series of tweets, leading experts to debate whether the micro-blogging platform has actually lost its "legal shield" in the country from prosecution over posts. To give more muscle to the Minister’s charges the UP police filed an FIR against Twitter and others after a video of an elderly man alleging assault in Uttar Pradesh’s Ghaziabad went viral on social media. The police booked Twitter, several Congress leaders and journalists (all Muslims) in connection with tweets on the case. The complainant in the case is sub-inspector at the Loni Border police station, Naresh Singh.
There is no doubt that India needs to ensure that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 do not become a mere paper tiger and are effectively implemented.
However, can the country stipulate stringent liabilities against social media firms like Twitter for failing to comply with its directions?
By virtue of Rule 7 of the IT (Intermediary Guidelines) rules 2021, the moment any intermediary including any significant social media intermediary does not comply with the IT rules, they automatically lose their statutory exemption from legal liability.
“Further, they become liable for being punished for various offences under the Information Technology Act, 2000 and the Indian Penal Code, 1860. In this case, Twitter by not complying with the IT rules 2021 has lost its statutory immunity after the expiry of 90 days from February 25,” leading cyberlaw expert Pavan Duggal said.
According to him, Twitter no longer has the “suraksha kavach” or statutory exemption from legal liability.
“This effectively means that they are liable to be sued in civil and criminal actions across the country and they are liable to defend each one of them for third party data or information made available by them,” Duggal added.
However, according to non-profit Internet Freedom Foundation, the “intermediary status” is not a registration that is granted by the government.
“The present concerns arise from Rule 7 of the IT Rules, but Rule 7 only says that the provisions of Section 79 of the IT Act won’t apply to intermediaries that fail to observe the IT Rules,” the foundation said in a series of tweets.
“The new IT Rules, as per several digital rights organisations, are unconstitutional. In fact, they have been challenged in several state High Courts (like by TM Krishna, a prominent Carnatic music vocalist and cultural critic in Madras HC),” the foundation added.
According to Virag Gupta, the lawyer of former RSS ideologue K.N. Govindacharya, who is arguing the social media Designated Officers’ matter before the Delhi High Court, there are three aspects of new IT Rules.
“However, there is debate only on one aspect of Grievance Officer. Facebook, Google, WhatsApp and other tech giants including Twitter have yet not fully complied with rules related to Nodal Officer and Compliance Officer,” Gupta said.
Article 14 of the Constitution mandates equality, but the government is “singling out Twitter and not taking action against other social media companies which are not compliant with the law”, Gupta argued.
According to Minister Prasad, Twitter was given multiple opportunities to comply with the same, but has “deliberately chosen” the path of non-compliance.
“In certain scenarios, with the amplification of social media, even a small spark can cause a fire, especially with the menace of fake news. This was one of the objectives of bringing the Intermediary Guidelines,” he said in a series of tweets.
“Further, what is perplexing is that Twitter fails to address the grievances of users by refusing to set up process as mandated by the law of the land. Additionally, it chooses a policy of flagging manipulated media, only when it suits, its likes and dislikes,” the IT Minister added.
Twitter was yet to react to the latest tweets by IT Minister.
Experts argued that India needs to come up with effective legal provisions stipulating the consequences to be faced by social media companies in case they do not take effective steps to fight the menace of fake news/misinformation on their platforms.
The options for the government are now to start legal proceedings against Twitter for third-party data and information.
“Further, all affected persons who have been affected by the inactions of the service provider, can sue the service provider, both for legal action and also for criminal liability,” said Duggal.
Since Twitter, as a service provider, has not complied with the new IT rules, the government can also start initiating action to prevent them from offering their service in “a seamless manner in the Indian context”, the experts noted.
“There are numerous queries arising as to whether Twitter is entitled to safe harbour provision. However, the simple fact of the matter is that Twitter has failed to comply with the Intermediary Guidelines that came into effect from the 26th of May,” Prasad said.
Observing that the culture of India varies like its large geography, he said in another tweet: “In certain scenarios, with the amplification of social media, even a small spark can cause a fire, especially with the menace of fake news. This was one of the objectives of bringing the Intermediary Guidelines.”
“What happened in UP was illustrative of Twitter’s arbitrariness in fighting fake news. While Twitter has been over enthusiastic about its fact checking mechanism, it’s failure to act in multiple cases like UP is perplexing & indicates its inconsistency in fighting misinformation,” he said.
Prasad said that it is astounding that Twitter which portrays itself as the flag bearer of free speech, chooses the path of deliberate defiance when it comes to the intermediary guidelines.
“Further, what is perplexing is that Twitter fails to address the grievances of users by refusing to set up process as mandated by the law of the land. Additionally, it chooses a policy of flagging manipulates media, only when it suits, its likes and dislikes,” he said.
Further, in another development, official sources have said that Twitter has lost its status as intermediary platform in India as it has not complied with new guidelines.
Meanwhile, after a video of an elderly man alleging assault in Uttar Pradesh’s Ghaziabad went viral on social media, the police booked Twitter, several Congress leaders and journalists in connection with tweets on the case. The complainant in the case is sub-inspector at the Loni Border police station, Naresh Singh.
The FIR, filed at 11:20 pm has named AltNews journalist Mohammad Zubair, journalist Rana Ayub, media organisation The Wire, Congress’s Salman Nizami, Maskoor Usmani and Shama Mohamed, writer Saba Naqvi and social media giant Twitter INC and Twitter Communications India PVT.
The sections invoked are IPC Section 153 (provocation for rioting), 153A (promoting enmity between different groups), 295A (acts intended to outrage religious feelings), 505 (mischief), 120B (criminal conspiracy) and 34 (common intention) against them.
On Tuesday, The Wire had reported that an elderly Muslim man was attacked in Loni, in Uttar Pradesh’s Ghaziabad district, on June 5 while on his way to offer prayers at a mosque based on several other news reports, linked to the report.
Abdul Samad, a 72-year-old man, had alleged that he had been assaulted on June 5. The attackers also cut off his beard, as seen in the viral video. Samad lodged an FIR against unidentified persons on June 7. In his viral video, the man alleged that he was forced to chant Jai Shri Ram by the assailants, and that he was attacked because of his religion.
Three accused in the case – Parvesh Gujjar, Kallu Gujjar and Aadil – have already been arrested in the case for allegedly assaulting Samad, a resident of Bulandshahr who had come to visit Loni. As The Wire has reported, Aadil claimed that he had gone to the attack site to try and rescue Samad.
Samade had, in the viral video, alleged that some men took him to an isolated place after offering him an auto ride and beat him up while forcing him to chant Jai Shri Ram.
However, the police later in their clarification said that it was an interpersonal matter and the accused had beaten him up because he had given them a taveez (amulet) that they believe caused their family member’s miscarriage.
In the FIR, it is stated that despite this clarification by Ghaziabad Police, the accused did not delete their tweets, nor did Twitter make any efforts to delete them.
It reads, “It is expected that members with positions of influence in the society will try to establish the truth and use their discretion while giving out information. They [accused] have a duty towards society. In this case, the tweets were not verified which gave a communal angle of the incident despite being untrue.”
Further, it states, “These tweets were done with the intent of disturbing peace in the society. The tweets not only created tension but also invoked fear among a particular community in Uttar Pradesh.”
Station house officer at Loni Border police station said that the elderly man had not been forced to chant “Jai Shri Ram” slogans and that it was not a crime done by “random strangers” but his “upset” customers. He added that there were Muslims too among the accused men in the case.