In a notice sent out on Twitter recently, the Ministry of Electronics and Information Technology is said to have asked the microblogging site to either comply with the previous notices by July 4, or give up its ‘intermediary status’.
Twitter is in the news again for its run-ins with the law. In a notice sent on June 27 to Twitter, MeitY (Ministry of Electronics and Information Technology) is said to have asked Twitter to either comply with its previous notices by July 4, or give up its ‘intermediary status’ ‘. Although there is lack of clarity on the content of these notices and various reports on the extent of non-compliance, it is clear that the government is not in a mood to take the same extent.
This government stance fits with its current proactive regulatory approach that has been developed over the past year. Although the platform is said to have implemented the orders on the last day in order not to lose its “mediation status”, it simultaneously filed for judicial review of some of these orders.
Why is “broker status” so important to Twitter?
Social media intermediaries such as Twitter essentially provide a service that allows users to generate, post and share content online. And that content may not always be legal. As in the offline world, online speech is also surrounded by reasonable restrictions “in the interest of sovereignty and integrity of India, national security, 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 responsible for their own speech, in the online world social media brokers who “publish” this speech by hosting it on their servers and displaying it on their platform are given much more leeway. Their handling is different from a typical offline publisher for a number of reasons.
First, theoretically, social media brokers argue that they are only providing a service that allows users to express and share their views without endorsing or condemning them. Second, on a practical level, social media intermediaries argue that given the large amount of content posted by users between them, it is not possible for them to monitor the hosted content to an extent that they can be considered to be in an editorial capacity on the content they expect. Third, from a rights-based perspective, given the crucial role social media intermediaries play in citizens’ right to freedom of speech and expression, it is considered undesirable for private entities to censor the content they host.
But more importantly, this immunity is integral for social media intermediaries to reach the scale they have reached today. Losing this immunity would expose them to legal action over the content they host, making it impossible for them to operate.
Therefore, social media intermediaries are not responsible for the content they host, except in certain limited circumstances.
Procedure for removing content
In India, this “safe harbor” is granted to social media intermediaries under section 79 of the Information Technology Act, 2000 (IT Act, 2000). However, to take advantage of this safe harbor, a social media intermediary must ensure that when notified by the government under Section 69 of the IT Act, 2000 that the content it hosts is illegal, it will promptly remove a such content or take action against the user accounts hosting them.
The detailed procedure for removal of such content is provided in the Information Technology (Procedure and Safeguards for Blocking Public Access to Information) Rules, 2009 (IT Rules, 2009). In short, the IT Rules, 2009 provide that if the government (the three-member committee) is of the opinion that if access to the content should be blocked, it must make “all reasonable efforts to identify the person or intermediary who has waiting for such information” so that they can submit their “response and clarifications”. After reviewing these submissions, the government decides whether to block the content or not.
***
Read also
Explained: Why Twitter has moved Karnataka HC over Centre’s orders to remove content
Twitter’s legal protection as an intermediary is not absolute, it is compliance oriented
Twitter has ‘last chance’ to comply with all government orders
***
It is well established that governments act well within their powers by requiring LSIs to block access to online content within their jurisdiction. In 2016, the Supreme Court in Shreya Singhal categorically held the IT Rules, 2009 in their present avatar as constitutional.
Finally, the EU Digital Services Act which was passed this week by the European Parliament requires LSIs to remove illegal content identified by the government in its orders. In many European jurisdictions, given the viral nature of online content and its indiscriminate duplication, the timelines for compliance are much stricter than those in India.
However, it is the manner in which this content will be removed that has been criticized. The main reason for this was the lack of transparency in these procedures. Although the social media broker and the user who posted the account are required to be notified, the final order is not made public. Neither the social media broker nor the user has visibility why their content was removed or why user account suspended. This makes it difficult for affected parties to submit the order for judicial review. In fact, in the case of Twitter, its actions taken in compliance with the government are known only through its disclosures in third-party databases such as Lumen.
Disobeying government orders
That said, the legal basis for Twitter’s non-compliance with these orders is unclear. Social media intermediaries have cited their obligations under foreign laws to avoid complying with Indian law. This is an untenable argument. As frustrating as this argument has often been reductively expressed as “foreigner versus Indian,” legally a social media broker making its service available in India is required to conduct these operations in of India under the IT Act, 2000 In case an affected party has a grievance with the particular law or order itself, it is always open to them to challenge the impugned law or order. But in its absence, only the reduction of the orders and their non-execution for more than a year and a half or for a short time, compliance and restoration of accounts would constitute a cause of action to be held liable for non-compliance.
Another argument of social media brokers resisting injunctions is that the social media broker wants to protect the rights of its users. This seems somewhat dubious given the selective way in which this cause is supported by social media brokers. It has been reported that social media brokers moderate and amplify content on their platform to increase user engagement, completely disregarding what is healthy for users to consume and often knowing the harm that amplifying negative content can cause.
For more, suo motu actions taken by social media intermediaries against violations of their policies often lack safeguards such as notification to users, reasoned orders for decisions taken, human moderation of content, and adequate grievance redressal mechanisms to challenge these orders. Elon Musk’s latest bid to buy Twitter has highlighted some free speech concerns with the platform.
It wouldn’t detract from Twitter’s cause if we understood its motivations stem from a desire to keep all types of user traffic on its platform. Banning accounts of users with significant followings would definitely affect this. A social media platform is a business that benefits from maximizing user engagement. And this user engagement feeds into the creation of echo chambers and radical views across the political spectrum.
Twitter’s challenge to government orders
In this context, Twitter’s challenge to the government’s orders in the Karnataka High Court provides a concrete step forward on this issue. It will help resolve the current impasse between Twitter and the government. Notably, it is perhaps the first time that government orders will be subject to judicial review. The challenge is being made on three grounds. First, that the orders are inconsistent with the IT Rules, 2009 so long as they do not provide notice to content creators. Secondly, that the content to be blocked has no 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 infringes on the freedom of speech and expression of its users.
High Court of Karnataka. ANI
Importantly, what the writ petition does not do is challenge the constitutionality of the IT Rules, 2009 itself. Such a challenge before the Supreme Court would not be sustainable when the Supreme Court has already held that the IT Rules- of 2009 as constitutional.
The outcome of this challenge will have significant implications for other LSIs such as the Meta – Facebook, Instagram – Google platforms that are other major recipients of blocking orders. It will give a sense of how much they can push these orders. More importantly, it can facilitate the creation of a mechanism that allows government and platforms to talk to each other.
Way forward
The outcome of this challenge will also have significant implications on how power is exercised under the IT Rules, 2009. Since the rules themselves are constitutional, the government must also ensure that it exercises its power in accordance with them. An important step in doing this would be visibly take “reasonable steps” to notify the authors of the content.
Also, the reasons for blocking must be recorded in writing. This was one of the specific reasons why the Supreme Court considered that Article 69A was different from Article 66A while upholding the constitutionality of the former.
Additionally, the government should consider including a judicial member in the Committee under the IT Rules, 2009, which would help ensure that they are not applied in a disproportionate and broad manner.
Finally, there is a need to re-examine criminal liability for LSI officials, especially in the context of content-related issues. Speech is highly contextual in nature. Fear of subjecting officials to criminal liability detracts from the purpose of properly evaluating the order and can lead to concerns about overcompliance.
The author is a researcher at the Center for Applied Law and Technology Research, Vidhi Center for Legal Policy. The views expressed in this article are those of the author and do not represent the position of this publication.
Read all latest news, Trending news, Cricket News, Bollywood News,
India news AND Fun news here. Follow us on Facebook, I tweet and Instagram.
