Twitter is in the news once again for its skirmishes with the law. In a notice sent on 27 June to Twitter, MeitY (Ministry of Electronics and Information Technology) has reportedly asked Twitter to either comply with its previous notices till 4 July, or forgo its ‘intermediary status’. Although there is lack of clarity of the content of these notices and differing reports of the scope of non-compliance, it is clear that the government is not in the mood to take the same lying down.
This stance of the government fits into its current proactive regulatory approach that has developed over the course of the last year. Although the platform reportedly complied with the orders on the last day so as to not lose its “intermediary status”, it simultaneously filed for judicial review of some of these orders.
Why is ‘intermediary status’ so important to Twitter?
Social media intermediaries like Twitter essentially provide a service that allows users to generate, post and share content online. And this content may not always be lawful. Just like in the offline world, speech online is also hemmed in by the reasonable restrictions “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States” under Article 19(2) of the Constitution of India.
But unlike the offline world where the publisher and the author both are liable for their speech, in the online world social media intermediaries that “publish” this speech by hosting it on their servers and displaying it on their platform are given far more leeway. Their treatment is different from a typical offline publisher for a number of reasons.
First, theoretically social media intermediaries argue that they are only providing a service that allows users to express and exchange their views without endorsing or condemning them. Second, on a practical level, social media intermediaries argue that given the sheer amount of content posted by users among them, it is not feasible for them to monitor the content hosted to an extent that can be considered that they are in an editorial capacity over the content they host. Third, from a rights-based perspective, given the crucial role social media intermediaries play in the citizens’ right to freedom of speech and expression, it is considered undesirable for private entities to censor the content they host.
But most importantly, this immunity is integral for social media intermediaries to attain the scale they have achieved today. Losing this immunity would inundate them with legal actions with respect to the content they host thereby making their operation impossible.
Therefore, social media intermediaries are not held liable for the content they host, except in certain limited circumstances.
Procedure for removal of content
In India, this “safe harbour” is given to social media intermediaries under Section 79 of the Information Technology Act, 2000 (IT Act, 2000). However, to avail of this safe harbour, a social media intermediary has to ensure that when it is notified by the government, under Section 69 of the IT Act, 2000 that the content it is hosting is unlawful, it will expeditiously remove such content or take actions against the user accounts that host them.
The detailed procedure for removal of such content is provided for in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (IT Rules, 2009). In nutshell, the IT Rules, 2009 provide that if the government (three-member committee) is of the opinion that if access to the content needs to be blocked, it should make “all reasonable efforts to identify the person or intermediary who has hosted such information” so that they can submit their “reply and clarifications”. After considering these submissions, the government decides whether to block the content or not.
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It is well established that governments act well within their powers in requiring SMIs to block access to online content within their jurisdictions. In 2016, the Supreme Court in Shreya Singhal categorically held the IT Rules, 2009 in their current avatar to be constitutional.
Recently, the EU's Digital Services Act which was approved this week by the European Parliament requires SMIs to remove illegal content identified by the government in its orders. In many European jurisdictions, considering the nature of virality of content online and its indiscriminate duplication, timelines for compliance are far stricter than those in India.
However, it is the manner in which this content is to be removed that has come under criticism. The main reason for this has been the lack of transparency imbibed in these procedures. Even though the social media intermediary and the user who has posted the account is required to be given notice, the final order is not made public. Neither the social media intermediary nor the user has visibility over why their content was taken down or why the user account was suspended. This makes it difficult for the affected parties to submit the order for judicial review. In fact, in the case of Twitter, one comes to know of its actions taken pursuant to the government only through its disclosures to third-party databases such as Lumen.
Non-compliance with government orders
That said, the legal bases for Twitter’s non-compliance with these orders are unclear. Social media intermediaries have cited their obligations under foreign laws to avoid complying with Indian law. This is an untenable argument. As jingoistic as this argument is branded to be often being reductively couched as “foreign versus Indian”, legally a social media intermediary that is making its service available in India is required to carry out these operations in India in compliance with the IT Act, 2000. In case an affected party has a grievance with the law itself or the particular order, it is always open to them to challenge the law or contravening order. But in its absence, just sitting on the orders and not complying with them for more than a year and a half or briefly complying and then restoring accounts would constitute cause of action to be held liable for non-compliance.
Another argument of social media intermediaries resisting the orders is that the social media intermediary wants to protect the rights of its users. This seems somewhat dubious given the selective manner in which this cause is championed by social media intermediaries. It has been reported that social media intermediaries moderate and amplify content on their platform to increase user engagement, in complete disregard of what is healthy for users to consume and often knowing the harm amplification of negative content can cause.
Moreover, suo motu actions taken by social media intermediaries against violation of their policies often lack safeguards such as notice to the user, reasoned orders for decisions taken, human moderation of content and adequate grievance redressal mechanisms to challenge these orders. The recent acquisition bid of Twitter from Elon Musk has highlighted several free speech concerns with the platform.
It would not detract from Twitter’s cause if we were to understand its motives to stem from wanting to maintain all kinds of user traffic on its platform. Blocking of user accounts with considerable following would definitely impact this. A social media platform is a business that benefits from maximising user engagement. And this user engagement is fuelled with creation of echo chambers and radical views across the political spectrum.
Twitter’s challenge to the government orders
In this context, Twitter’s challenge to the orders of the government in the Karnataka High Court provides a concrete step forward on the issue. It will help in resolving the current stalemate between Twitter and the government. Notably, it is probably the first time when the government’s orders will be subject to judicial review. The challenge is being made on three grounds. First, that the orders are not in compliance with the IT Rules, 2009 in so far as they fail to provide notice to the originators of the content. Second, that the content to be blocked does not have proximate relation to the grounds mentioned in section 69A. Third, that some of the orders require blocking of speech that is political in nature and therefore, violates freedom of speech and expression of its users.
Importantly, what the writ petition does not do is to challenge the constitutionality of the IT Rules, 2009 themselves. Such a challenge before the High Court would not be maintainable when the Supreme Court has already held the IT Rules, 2009 to be constitutional.
The outcome of this challenge will have significant implications for other SMIs such as Meta platforms — Facebook, Instagram — Google that are other major recipients of blocking orders. It will give a sense of how much they can push back on these orders. More importantly, it might facilitate the creation of a mechanism that allows for the government and platforms to talk to each other.
Way forward
The outcome of this challenge will also have significant implications on the way in which power is exercised under the IT Rules, 2009. Since the rules themselves are constitutional, the government should also ensure that it exercises its power in accordance with them. An important step in doing so would be to demonstrably take “reasonable measures” to give notice to the originators of the content.
Additionally, the reasons for blocking should be recorded in writing. This was one of the specific reasons why the Supreme Court held Section 69A to be different from Section 66A while upholding the former’s constitutionality.
Moreover, the government should consider including a judicial member in the Committee under the IT Rules, 2009 which would help in ensuring that they are not implemented in a disproportionate and overbroad manner.
Lastly, there is a need to reconsider criminal liability for functionaries of SMIs, especially in the context of content-related issues. Speech is highly contextual in nature. The fear of being subject to criminal liability on functionaries takes away from the scope of due evaluation of the order and may lead to overcompliance concerns.
The author is a research fellow at the Centre for Applied Law and Technology Research, Vidhi Centre for Legal Policy. The views expressed in this article are those of the author and do not represent the stand of this publication.
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