Thursday, December 9, 2021

Twitter loses its immunity: Tweets by Mahua Moitra, Swati Chaturvedi are flashpoint

The Ministry of Electronics and Information Technology, (MeITY) Government of India has informed the Delhi High Court in an affidavit that the Safe Harbour Immunity under the Information Technology Act, 2000 (IT Act) is no longer available to Twitter, as it hasn’t “fully” complied with the IT Rules 2021.

Section 79 of IT Act states, “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.

This implies that intermediaries such asTwitter or 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.’

This 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.

MeITY has stated that Twitter is a Significant Social Media Intermediary (SSMI) as defined under Rule 2 (1) (v) of the IT Rules 2021. Hence it is obligated to comply with the provisions of the Rules 2021, as due diligence obligations u/R3 and R4 are to be followed by all intermediaries to avail exemptions from liability under S79 (1) of the Information Technology Act 2000. 

The government has said that a “sufficient period of three months was granted to all SSMIs to comply with the additional due diligence set out under Rule 4 of the IT Rules. Thus, from 26.05.21 onwards, compliances with the R4 obligations are mandatory. 

Further  that, Rule 7 provides that when an intermediary fails to observe these Rules, the provisions of S79 (1) will not be available and the intermediary shall be liable for any punishment under any law for the time being in force in respect of the offending content. 

The Centre says that as in spite of three months’ time granted to all SSMIs to comply with the IT Rules 2021, Twitter has failed to fully comply with the same, the non-compliance is leading to Twitter “losing its immunity conferred under S 79 (1) of the IT Act 2000. 

In its reply to a petition filed against Twitter Inc for failure to take action on allegedly derogatory tweets by Trinamool Congress MP Mahua Moitra and journalist Swati Chaturvedi, Twitter had earlier told the Delhi High Court that, “The tweets are not of a category for which Twitter takes action under our policies, rules and terms of service. We note that you have indicated in your complaint that the tweets are false, illegal and defamatory.”

The tweets in questions were as follows:

Mahua Moitra (@MahuaMoitra): Welcome to our Susu Potty Republic! Drink Gaumutra, smear cowdung & flush the rule of law down the toilet @DelhiPolice issue notice to Twitter & land up in their offices for rightly calling out @BJP’s fake document as manipulated media. Go figure.

Swati Chaturvedi (@bainjal): If Bobde had been Chief Justice of the Supreme Court Modi would have been able to appoint his favourite Gujarat IPS, official Rakesh Asthana. What a huge difference a CJI who follows the law makes.

The plea had also sought action against Twitter Inc for its failure to appoint a Resident Grievance Officer as directed under Rule 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) and stated that as per a Government of India circular the same were to be complied with by May 25. 

(The story is courtesy LiveLaw.In). 

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