The Ministry of Electronics and Information Technology has written a letter (No. 16(4)2020-CLeS) dated 5th June, 2021 to Twitter Inc. with the subject line ‘Compliance of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The letter states that the Ministry is disappointed with Twitter Inc’s response to the clarifications sought by the government. The new rules came into effect on 26th May, 2021 and it has been more than a week but Twitter hasn’t not complied with the rules. The government has expressed the following objections relating to non-compliance:
- Twitter Inc has not informed the government regarding the Chief Compliance Officer which is required under the rules.
- The Resident Grievance Officer and Nodal Contact Person nominated by Twitter is not an employee of the company.
- Office Address of Twitter Inc is of a law firm in India, which is not as per the rules.
Since this letter was made public the #BanTwitterInIndia has been trending on twitter. But does the letter by the government talk about any kind of ban at all? Let us analyse.
The government letter states that non-compliance with the rules will lead to Twitter losing exemption from liability as an intermediary available under Section 79 of the IT Act, 2000 which has clearly been provided under Rule 7 of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Let us see what Section 79 of IT Act, 2000 says
- Exemption from liability of intermediary in certain cases.—(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or (b) the intermediary does not—
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation.—For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.]
Text of Rule 7 of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 states that
7. Non-observance of Rules.—Where an intermediary fails to observe these rules, the provisions of sub-section (1) of Section 79 of the Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.
After reading the bare provisions it is quite clear that there is no mention of ban anywhere in Section 79. If Twitter fails to comply with the Rules of 2021, it loses protection from liability. Therefore, the intermediary shall be liable for any third party information, data, or communication link made available or hosted by him.
Therefore we can safely say that the letter by the Government of India to Twitter Inc is being wrongly interpreted by many Twitter users. The letter does not talk of any ban as a consequence of not complying with the rules. The consequences of losing protection under Section 79, IT Act, 2000 means that the intermediary (in this case Twitter) can now be taken to court for any content that is posted on its website by any user.
The letter goes on to say that refusal to comply demonstrates Twitter’s lack of commitment and effort towards providing a safe experience for the people of India. The letter further states that Indian people who are abused on the platform or harassed, subjected to sexual abuse, defamed etc should get redressal mechanism created through due process of law. The letter ends with the Government of India giving Twitter ‘one last notice’ as a ‘gesture of goodwill’ failing which exemption granted under Section 79 would be withdrawn.