Conditional protection

When in early 2017, the National Commission of Scheduled Tribes decided to direct that all videos on YouTube pertaining to the protected (as per the Government of India Jarawa policy, 2004 that has been sanctified right up to the Supreme Court) should be taken down, they faced an uphill task. Classified technically as a Particularly Vulnerable Tribal Group, there are fewer than 500 of these hunter-gather Jarawas left, occupying the western coast of the Middle and South Andaman Islands. The Jarawas had been the subject of salacious videos in which they appear semi-naked, hankering for hand-outs of food from foreigners and tourists – portraying them as vulnerable and exploitable. "This amounted to outraging their modesty without their knowledge," recalls Raghav Chandra, the former Secretary of the NCST who initiated this decision." However, it was impossible to get across to YouTube because they did not have a credible presence in India. This is perhaps one of the glaring examples of how social media intermediaries pass the buck across entities and geographies and manage to dodge government scrutiny even in matters that infringe government policy. The requirement of having resident Chief Compliance Officers and Nodal Officers in India assumes pertinence against this backdrop.

The Information Technology Act defines the term 'intermediary' and Section 79 of the IT Act protects intermediaries from 'third party information, data or communication link made available or hosted by him'. It is crucial to note that while the Safe Harbour Protection provided in Section 79 (1) has a 'notwithstanding' clause i.e. the right is absolute and is not subject to any other Act, however, the legislators in their wisdom, as a carve-out, have made the protection subject to provisions of S.79(2) and S.79(3). Section 79(2)(c) reads as follows:

" Sub-Section (1) shall apply if-

….(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."

Therefore, from the above, it is clear that while Twitter may continue to be an intermediary under the IT Act but the Safe Harbour Protection is clearly and unequivocally contingent on it: a) observing due-diligence while discharging it's duties under the IT Act; and b) abiding by Guidelines issued by the Central Government. In other words, the law of the land. It may be noted that that the heading of S.79 itself reads 'Exemption from liability of intermediary in certain cases'. Further, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("Intermediary Guidelines") which were notified on February 25, 2021, have neither been stayed or struck down by a court of law. Clause 7 of the Intermediary Guidelines too states that if social media intermediaries do not comply with the law of the land in terms of the IT Act and IT Rules, Safe Harbour Protection would not be available to them. The issue to be considered is whether the withdrawal of protection be automatic or by virtue of an executive order?

The Intermediary Guidelines have introduced two sub-categories of intermediaries i.e. social media intermediaries and significant social media intermediaries. Twitter comes under the classification of significant social media intermediary on account of having more than 50 lakh registered users in India. Clause 4 of the Intermediary Guidelines provide due-diligence measures to be taken by significant social media intermediaries and this includes the appointment of: 1) a Chief Compliance Officer; 2) Nodal Contact Person; and 3) a Resident Grievance Officer, who are all required to be resident in India.

The failure of Twitter to comply with MEITY directions viz appointment of a Chief Compliance Officer and Resident Grievance Officer in terms of Clause 4 of the Intermediary Guidelines (which were required to be implemented within 3 months from the introduction of the Intermediary Guidelines i.e. by May 26, 2021) is puzzling. Twitter was given a final warning on June 5 and thereafter, on June 16 it was reported widely in the media that Twitter has lost its safe harbour protection. Curiously, no formal communication or speaking order from MeitY is readily available in the public domain. It appears that MeitY has taken the view that since Safe Harbour Protection is contingent on abiding by the Intermediary Guidelines once there is non-compliance there is no protection. Clearly, non-compliance with the relevant rules and regulations is a violation of the safe-harbour shield in Section 79(1) because compliance with the rules become a necessary condition precedent for that protection. However, having issued a final warning perhaps MeitY should also issue a specific order to leave no scope for doubt. Undoubtedly, the issue the courts of law will be called upon to adjudicate is whether a speaking order was required from MeitY for taking away the safe harbour protection. In fact, the Delhi High Court has already issued notice to Twitter in a petition calling upon it to respond as to why it has not complied with the Intermediary Guidelines. One thing is clear that the language of Section 79 is not vague, unlike the erstwhile Section 66A which was struck down by the Supreme Court.

Twitter will likely take the plea that they are caught in the crosshairs of political one-upmanship when a post by a BJP Leader was tagged as 'Manipulated Media'. However, that plea would be specious because as the government would have many other grounds when Twitter has partially exercised its discretionary editorial rights. The Minister of MeitY has rightfully clarified on June 16, "The culture of India varies like its large geography. In certain scenarios, with the amplification of social media, even a small spark can cause a fire, especially with the menace of fake news. This was one of the objectives of bringing the Intermediary Guidelines."

The Central Government envisages that on various aspects like determining 'first originator' of hate messages etc. the prompt input of Significant Social Media Intermediaries is necessary. The defiance of Twitter to comply with the law of the land — at the heart of its recent standoff with MeitY is inexplicable. There are aspects of the Intermediary Guidelines which are particularly germane for the citizens of the country too. For instance, in cases where the first originator of a message (fake/hate) is outside the territory of India, the originator of that message in India would be deemed to be the first originator of such message. In cases of objectionable content depicting a person in a sexual act or action or depicting partial or full nudity, the intermediary is expected to take suitable action within 24 hours of receiving such complaint.

Twitter was clearly ill-advised to defy the due diligence requirements for significant social media intermediaries in the first instance. It would have been better for Twitter to first comply with the law of the land and then take appropriate legal recourse available to it. Decisions and actions of intermediating intermediaries need to be 'owned' and owned up to.

Views expressed are personal