Twitter row: Do new IT rules have power for grant or revocation of intermediary status

New Delhi, June 16: Defending the removal of legal protection of Twitter in India Union Minister for Information and Technology said that the company did not deliberately comply with the new IT rules.

"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. Further, it was given multiple opportunities to comply with the same, however it has deliberately chosen the path of non-compliance," said on Koo.

Indian companies be it pharma, IT or others that go to do business in USA or in other foreign countries, voluntarily follow the local laws. Then why are platforms like Twitter showing reluctance in following Indian laws designed to give voice to the victims of abuse and misuse, Prasad wrote.

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.

— Ravi Shankar Prasad (@rsprasad) June 16, 2021

Further, Twitter was given multiple opportunities to comply with the same, however it has deliberately chosen the path of non compliance.

— Ravi Shankar Prasad (@rsprasad) June 16, 2021

The rule of law is the bedrock of Indian society. India’s commitment to the constitutional guarantee of freedom of speech was yet again reaffirmed at the G7 summit.

— Ravi Shankar Prasad (@rsprasad) June 16, 2021

However, if any foreign entity believes that they can portray itself as the flag bearer of free speech in India to excuse itself from complying with the law of the land, such attempts are misplaced, Prasad also said.

Internet Freedom Foundation, a digital advocacy group said that the the "intermediary status" is not a registration that is granted by the Government. The present concerns arise from Rule 7 of the IT Rules, but Rule 7 only says that the provisions of Section 79 of the IT Act won't apply to intermediaries that fail to observe the IT Rules."

The so-called "intermediary status" is actually a technical qualification as per criteria under the Section 2(1)(ua)(w) of the IT Act. As per Section 79, intermediaries are immune from liability/penalty if they comply with legal takedown requests of user posts from courts & public authorities. As we explain, this is threatened by the IT Rules, 2021, IFF also said.

1/ Fact check: We would like to caution against news reports of any social media entity (a significant entity) losing the “protective shield” of an “intermediary status”. This emerges from an incorrect reading of the law. #TwitterBanInIndia https://t.co/r3QNIHDx80

— Internet Freedom Foundation (IFF) (@internetfreedom) June 16, 2021

The new IT Rules, as per several digital rights organisations, are unconstitutional. In fact, they have been challenged in several state High Courts. 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., IFF also said.

The stories citing a loss of intermediary status do not refer to any government order or gazette notification rooted in a legal provision. Hence it is not a legal determination. Even an official press statement is not publicly available yet, the digital advocacy group further added.

We clearly state. The IT Act or IT Rules do not contain any power or process for grant or revocation of an intermediary status. There is no immediate penalty which flows from non-compliance beyond loss of immunity determined by Courts on evidence and legal submissions, IFF further added.