Twitter has reportedly lost the coveted “safe harbour” immunity in India after failing to appoint statutory officers on time, as mandated by the new Information Technology (IT) Rules, 2021.

What is the news?

• With this, the social media giant becomes the only American platform to have lost the protective shield – granted under Section 79 of the IT Act.
• Its rival platforms such as YouTube, Facebook and WhatsApp remain protected.
• The new development could mean that Twitter’s senior executives that include its India managing director, face legal actions under relevant IPC for ‘unlawful’ activities on the platform – even if conducted by users.

Why such a move?

• Earlier this week, Twitter said it appointed an interim Chief Compliance Officer (CCO), and the details of the officer were not yet shared with the government.
• The company also posted job openings for a Nodal Officer and Resident Grievance Officer – the two key positions mandated by the central government’s IT Rules, 2021.

What is safe harbour protection?

• According to Section 79 of IT Act, 2000, “an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him,” therefore providing Safe Harbour protection.
• To put it simply, the law notes that intermediaries such as Twitter or your Internet Service Providers (ISPs) are not liable to punishment if third parties (users) misuse the infrastructure, in this case, the platform.
• However, the protection is guaranteed only when the intermediary does not ‘initiate the transmission,’ ‘select the receiver of the transmission,’ and ‘modify the information contained in the transmission.’
• It means that as long as the platform acts just as the medium to carry out messages from users A to user B, that is, without interfering in any manner, it will be safe from any legal prosecution.

Inception of the concept

• In its original form, the IT Act 2000 provided little or no Safe Harbour protection to internet intermediaries as the definition of the intermediary was restricted.
• However, things began changing in 2004, in a case where a student posted an obscene clip for sale.
• The student and the CEO of that company were both held later for letting pornographic material circulate online.
• The CEO challenged the proceedings against him, contending that he could not be personally held liable for the listing and that the MMS was transferred directly between the seller and buyer without the intervention of the website.
• The executive was acquitted, the case eventually resulted in the addition of Section 79 in the IT Act to provide immunity to intermediaries.

Why has Twitter lost the protection?

• Over the years, social media platforms have evolved and often tend to act as gatekeepers.
• For instance, Twitter banning Donald Trump and adding “manipulated media” label on select posts have been questioned by excerpts.
• In other words, an intermediary’s ability to “modify the information contained in the transmission,” opens rooms for revision of the law, experts believe.
• Hence, the government introduced the IT Rules 2021 in December last year and implemented it in May 2021.
• As per the new order, all social media platforms with more than 50 lakh (five million) users will need to appoint a Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer from India to smoothen the grievance mechanism for citizens.
• The officers will need to acknowledge queries with 24 hours and resolve them in 15 days from the date of receipt.

What can happen next?

• Once a company loses the Safe Harbour protection, technically, officials are liable to punishment if a post even by a third user violates local laws.
• The new IT Rules 2021 do not mention any ban for non-compliance.
• But with an estimated 1.75 crore users in India, Twitter would likely fill key positions soon to comply with the new norms laid by the government.
• As mentioned, the company already appointed an interim Chief Compliance Officer earlier.
• This, according to the government, means that the protection under Section 79 of the Information Technology (IT) Act, accorded to Twitter for being a social media intermediary, now stands withdrawn.

How does this impact Twitter?

• If someone puts out any content on Twitter that leads to some form of violence, or violates any Indian law with respect to content, not only the person that has put out the tweet will be held responsible.
• Even Twitter will be legally liable for the content as it no longer has the protection.

Is there something else that can happen subsequently?

• In the longer run, there is also the theoretical possibility that Twitter might be subjected to the 26 per cent cap of direct foreign investment in media and publishing.
• This in turn means that the platform may be forced to look for an Indian buyer for the remaining 74 per cent stake.

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