India’s mainstream media recently reported that Twitter apparently lost its intermediary status because of its alleged failure to ‘comply’ with the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”).
Ravi Shankar Prasad, the minister for IT, has also tweeted that Twitter has failed to comply with the new Intermediary Guidelines, thereby opening itself up to joint criminal liability for the material published by third parties. As if to make a point, the Uttar Pradesh government has filed a case against Twitter over the circulation of a video on its platform, alleging that it was meant to provoke communal tensions between different communities.
The reality of the matter is a bit more complicated.
Whether or not Twitter will continue to enjoy immunity is a question of law for the courts to decide. The government has no powers to decide which company enjoys immunity under the present rules.
The actual question that we should be asking, therefore, is this – what is the the likelihood of a court of law agreeing with the government’s interpretation of Section 79 and the Intermediary Guidelines that have been drafted under that provision? As I have written earlier on The Wire, Section 79 has a complicated history which makes it possible to argue that only the judiciary can determine the requirements of “due diligence” under Section 79 and that the Centre has over-stepped its brief by defining “due diligence” through the Intermediary Guidelines. That is reason enough to set aside the rules. If the rules are set aside on the aforementioned grounds, Twitter and other platforms can try convincing a court of law that they exercised the requisite degree of due diligence and can hence enjoy the immunity offered by Section 79 from liability for third party content.
Even presuming the Intermediary Guidelines are upheld as legal and presuming that Twitter has lost its shield from prosecution, the Indian state will find it quite difficult to actually hold Twitter liable under Indian criminal law.
To begin with Twitter Inc. does not have an office or staff in India. Twitter’s subsidiary, which is Twitter Communications India Pvt. Ltd. which does have an office in India is a separate legal entity from its parent company. This legal fiction makes it legally impermissible to hold the staff of Twitter Communications India Pvt. Ltd. responsible for any decision by Twitter Inc. unless a court is willing to pierce the corporate veil. That almost never happens in Indian courts. In other words, even if a FIR is registered in India, the Indian state cannot really exercise any coercive power against Twitter Inc. without which it will be difficult, if not impossible, to punish Twitter’s management which currently sits in the United States. This is one of the reasons that the government is insisting on the appointment of a grievance redressal officer who is on the payroll of the global headquarters of Twitter as one of the conditions for Twitter to continue enjoying immunity under Section 79.
Also read: The Power Politics Behind Twitter versus Government of India
Even presuming that Twitter does eventually create a physical presence in India, it will still be difficult for the Indian state to successfully prosecute Twitter, under current laws, for any content published on its platform by its users. To enable a successful prosecution under most Indian criminal laws that apply to dissemination of information, it is necessary to prove some kind of mens rea or active criminal intent on part of the Twitter management in disseminating obscene material or communally divisive material. Meeting this evidentiary threshold will be almost impossible in case of user-generated content where users post content without prior approval of Twitter. Hence criminal prosecutions are unlikely to succeed under most penal provisions in India. This could change if the law is amended to attach a presumption of criminal liability to the management of all these platforms for all content generated by the users of these platforms. For example, under The Press and Registration of Books Act, 1867 the ‘editor’ of a publication is presumed to have selected all the material published in the publication. If a similar law is enacted making management of social media platform automatically liable for user-generated content, it may easier to prosecute these companies in criminal court.
It may be easier to proceed against Twitter under civil law. For example, in the case of defamatory content, it may be possible to hold Twitter liable for defamatory content published by its users, provided there is prior knowledge but the remedy under civil law is limited to injunctions and monetary damages not prison time. There are however no substantive remedies under civil law to stop the publication of obscene or communally divisive content. Again, this could change under a new law that gives the government the power to impose substantive monetary fines on social media platforms for their failure to police certain content that is in violation of Indian laws. Other countries like Germany have enacted special laws to police speech on the internet, especially social media platforms.
The government’s policy on intermediary liability is at a crucial juncture at the moment. Its bureaucrats are about to learn that they may have used the wrong policy lever to bring Silicon Valley to heel. Once Indian policymakers come to terms with the fact that they lack the legal ammunition to punish Twitter they may speed up the enactment and enforcement of a new data protection law because data localisation theoretically increases the sovereignty of the Indian state over companies like Twitter. Except, what will the Indian state do if Twitter fails to comply with even data localisation rules? There are simply no good answers to this question because all of them will involve some kind of new regulation that will increase governmental control over the Internet. In the battle between national sovereignty and multinational corporations, history has shown that as citizens we must back the state which at the very least is accountable to its citizens. And demand, as the price for that consent, that this accountability be real and effective, and not just on paper.
Prashant Reddy is a lawyer.