On May 25, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 took effect in India, which was legislation aimed at altering liability laws for intermediaries such as social media companies.
Speculation arose about if Big Tech companies including Facebook and Twitter would be banned for failing to comply with the requirements, which turned out not to be the case. The rules have been criticized for being “overbroad” and “withering away digital freedoms.”
The new guidelines were announced on February 25 by the government with a deadline of three months for social media companies to comply. Companies that did not follow the law lost benefits they enjoyed under Section 79 of India’s Information Technology Act, including protections from being sued for comments, text messages, or posts made by users on their platforms. Noncompliance means that companies are now liable for user-posted content.
The new rules require companies to keep records of the originators of texts, tweets, and posts in India so that the government can readily identify individuals who post offensive content. Social media publishers are required to appoint a Grievance Redressal Officer in India.
“The Grievance Officer shall – (i) acknowledge the complaint within twenty-four hours and dispose off such complaint within a period of fifteen days from the date of its receipt; (ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction,” states an official government document.
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The companies must also hire a Chief Compliance Officer and Nodal Contact Person in India to deal with submitted complaints. In addition, platforms need to have a physical contact address in India, a rule that will have significant implications for foreign social media websites in terms of taxes, infrastructure costs, deployment logistics, and resources. The platforms must remove offensive content within 36 hours of receiving a court order or being notified by authorities.
In India, Twitter has 17.5 million users, Facebook has 410 million users, Whatsapp has 530 million users, YouTube has 448 million users, and Instagram has 210 million users. The new rules apply to platforms with at least 5 million users. According to a May 28 report by The Tribune, Facebook, Koo, Sharechat, LinkedIn, WhatsApp, Google, and Telegram have now complied with the new rules and have registered compliance officer details with the ministry.
WhatsApp goes to court
On May 25, WhatsApp filed a complaint in the Delhi High Court challenging the Indian government’s new rules, reported India Today. “Requiring messaging apps to “trace” chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy,” said a WhatsApp spokesperson.
The Indian government replied in a press release that it respects the right to privacy and has “no intention to violate” it. Disclosing user identities is only “required for prevention, investigation, or punishment of very serious offences,” and the rules have a “global precedence.”
The document stated that the governments of the United States, United Kingdom, Canada, Australia, and New Zealand issued a communiqué in July 2019 asking for tech companies to “include mechanisms in the design of their encrypted products and services whereby governments, acting with appropriate legal authority, can gain access to data in a readable and usable format.”
Twitter defiant
Twitter has said that it needs three more months to comply with the new mandates. In a series of tweets, the company cited concerns of a “potential threat to freedom of expression” in the country and criticized “intimidation tactics by the police in response to enforcement of our global Terms of Service.”
Delhi police had recently visited the Twitter office to serve notice after the platform tagged a post by BJP (Bharatiya Janata Party) National spokesperson Sambit Patra as “manipulated media.” His post exposed a toolkit from the opposition Congress Party containing instructions for how its members could malign the ruling BJP government and Prime Minister Narendra Modi.
An OpIndia report stated that the “manipulated media” tag was added to the post “in absence of credible evidence that conclusively proves that the toolkit document was indeed fabricated.” The Delhi police reasoned that since Twitter designated the post as manipulated media, it “clearly demonstrates that Twitter Inc. was acquainted with the facts of the case.”
The police thereby asked the company to provide all relevant information, according to The Hindu. Twitter’s statements “are devised to seek dubious sympathy when they themselves not only refuse to comply with the law of the land,” the police said.
The government of India has also lashed out at Twitter for not complying with the new rules, and has expressed concerns about free speech in India. In a statement, the government said that the country has a “glorious tradition” of free speech dating back centuries and that protecting free speech is “not the prerogative of only a private, for-profit, foreign entity like Twitter.”
The statement also alleged that the only instance of “scuttling free speech on Twitter is Twitter itself.” Due to the company’s “opaque policies,” people’s tweets are deleted and accounts are suspended “arbitrarily without recourse.”
“Twitter needs to stop beating around the bush and comply with Indian law. Lawmaking and policy formulations are the sole prerogatives of the sovereign and Twitter is just a social media platform. It will have no locus in dictating what India’s legal policy framework should be,” the statement said.
The government also highlighted Twitter’s hypocrisy after taking action against users “considered as perpetrators” of the Jan. 6 Capitol breach. A few days later, when the Indian government asked Twitter to take action against accounts that the administration believed “sought to incite violence on the pretext of a fake genocide plan,” Twitter refused to do so.
Additionally, on Feb. 4, the Indian government gave Twitter a list of 1,178 accounts related to the ongoing farmers protests and asked the company to remove or delete the accounts. Twitter defied the government’s request. A petition was then filed against the company in Delhi High Court, arguing that Twitter must perform its statutory and executive duties as a “significant social media intermediary,” Hindustan Times reported.
In a recent interview with India Today, Minister of Electronics and Information Technology Ravi Shankar Prasad stated that some Twitter’s fact-checkers “have one agenda, Hate Modi.” He asked why Twitter “could not find any neutral fact-checkers in such a big country.”
“We welcome criticism. Our Prime Minister has been receiving criticism from across the globe since 2001. But social media companies cannot promote only one side,” he said.
Twitter has also been facing legal challenges in other countries. In Russia, a court fined the company 19 million roubles ($259,000) for failing to delete content considered illegal by the government.
