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Twitter loses safe harbour protections over non compliance with IT Rules: Govt sources

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Microblogging platform Twitter has lost its safe harbour protection in India after failing to adhere to India’s new social media rules, according to two senior government officials. 

This means that Twitter can now be held liable for the content posted by users on its India, which opens it to increased litigation. Ever since the social media rules came into force on May 26, a tussle ensued between Twitter and the government which said that Twitter was yet to appoint key officials mandated by the rules. 

“Twitter is the only mainstream social media platform which is yet to comply with the rules and despite multiple notices and extra time given to the company the situation hasn’t changed,” a government official told Entrackr on the condition of anonymity.

“As a result, Twitter has lost its safe harbour protection and is now responsible for the content users post on its platform and to court cases for any illegal content. No company is above the law of the land,” a second government official said on the condition of anonymity.

Twitter neither confirmed nor denied the development.

“We are keeping the MeitY [IT Ministry] apprised of the progress at every step of the process. An interim Chief Compliance Officer has been retained and details will be shared with the Ministry directly soon. Twitter continues to make every effort to comply with the new Guidelines,” a Twitter spokesperson said in response to Entrackr’s queries.

“There are numerous queries arising as to whether Twitter is entitled to safe harbour provision. However, the simple fact of the matter is that Twitter has failed to comply with the Intermediary Guidelines that came into effect from the 26th of May,” IT Minister Ravi Shankar Prasad said in a tweet on Wednesday.

This is a major development since conditional safe harbour protections, as afforded to social media platforms under India’s social media rules, are essential to the functioning of social media companies in any country as it guarantees them immunity from content posted on their platforms. 

“Twitter’s alleged non-compliance with the rules means that they would lose automatic immunity for third-party content that they host. This is not a general condition, but specific to each electronic message that is transmitted over Twitter. It does not automatically carry any liability, but Twitter will not be able to claim the protection under Section 79 [social media rules] as a shield against any legal claims that arise against them in their function as an intermediary,” Divij Joshi, an independent lawyer, and researcher told Entrackr.

“As per Section 79, intermediaries are immune from liability/penalty if they comply with legal takedown requests of user posts from courts & public authorities,” the Delhi-based digital rights group Internet Freedom Foundation clarified in a Twitter thread.

“Even if we presume that the IT Rules are legal and constitutional, where alleged non-compliance is for appointment of officers etc., when companies like Twitter are prosecuted, courts will decide if it is an intermediary and not the government,” it added

Under rule 7 of the new social media rules, non-compliance would mean that platforms lose their intermediary status — meaning that they would be liable for content and posts from users, just like publishers are. 

To illustrate, consider any news publisher and the idea is that they are responsible for the content posted on their platforms since they have full control over the content and can modify it. Publishers however have legal protection from comments posted in their comments box in case they have opened this feature since they can’t control what users post there.

However, unlike publishers, social media platforms are offered legal immunity against the content a user posts there. The idea there is that these social media platforms have no control over the content posted on their sites and can not alter or modify it. 

And now, a case filed by the UP Police over a viral video on Twitter could be the company’s first test in India after losing safe harbour. An FIR was filed on Tuesday naming Twitter and other individuals over a video where an elderly Muslim man was being assaulted. The FIR claimed that there was no communal angle to the video and Twitter made no effort to stop the video from going viral.

Twitter declined to comment on our queries about being made party to this particular case.

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