The TLDR: When the government rolled out its new digital media rules in February, Google and Facebook made all the right noises. WhatsApp just went directly to court. But Twitter decided to take the path of passive-aggressive resistance—which has since driven the government into full-fledged rage. We look at the latest battle in this ongoing war.

Remind me about these new rules…

There is a new set of regulations for all kinds of digital content—including streaming platforms and online news sites (explained here). But let’s stick with just social media for the purpose of this big story. 

The ‘safe harbour’ rule: According to section 79 of the Information Technology Act, “an intermediary shall not be liable for any third party information, data, or communication link made available or hosted” on its platform. Basically, Twitter, Facebook, Instagram etc are treated like bookstore owners who cannot be responsible for content within books on their shelves. And this ‘safe harbour’ protects social media companies around the world—and is necessary to safeguard their free speech policies. 

The safe harbour exceptions: But in February, the government attached a string of requirements for ‘significant social media intermediaries’—with 5 million-plus users—which these companies must obey in order to still enjoy ‘safe harbour’. 

And these requirements are?

Here’s a full list, but these are the big ones most onerous to companies:

One: They must hire three key employees to address user grievances about any content posted on their platform. These include:

• A resident grievance officer who will acknowledge all complaints within 24 hours, and resolve them within 15 days.
• A nodal person of contact for “24x7 coordination” with law enforcement agencies.
• A Chief Compliance Officer who is responsible for ensuring that the company is fully compliant with the IT Act.
• All of them must reside in India and their addresses must be prominently published on the platform.

Point to note: The employees will be held personally liable for lack of compliance:

“This, legal experts said, means that if a tweet, a Facebook post or a post on Instagram violates the local laws, the law enforcement agency would be well within its rights to book not only the person sharing the content, but the executives of these companies as well. ‘Reading the provisions… suggests that this liability can even be criminal in nature where the CCO can be made to serve a prison term of up to 7 years,’ said Kazim Rizvi, founder of public policy think-tank The Dialogue.”

Two: The companies will have to send regular reminders to each one of us not to publish anything that is: (i) invasive of another's bodily privacy or harassing on the basis of gender; (ii) patently false or misleading but appearing as a fact; or (iii) false, with the intention of causing injury or to profit. Failure to comply with these rules—crafted by the government not the company—will result in the termination of your account. 

Point to note: The language used is so vague that it will be difficult to figure out what kind of content crosses the line. But that’s exactly the point.

Three: All information that has been deleted or disabled has to be stored up to 180 days—and it includes the records of users who have cancelled their account.

Four: Companies have to immediately obey any request from a court or government agency to block an account or takedown a post within 36 hours. The grounds for such a request include protecting the interest of the sovereignty or security of the state, decency, morality—and preventing anyone from inciting a crime that threatens the above.

Point to note: The language is again fuzzy and can be broadly interpreted—as it already was during the farmer protests. And platforms are expected to proactively track and take down such content using artificial intelligence-based content tools—which is hardly reassuring given how well tech algorithms have performed.

Ok, and Twitter is just saying ‘no’?

Hahaha, that would have been more straightforward. Twitter appears to be instead dragging its feet. When the rules were announced in February, everyone was given three months to comply—and that deadline ran out on May 26. Before that, all the big tech companies submitted information to indicate their compliance. Here’s what Twitter offered up:

• The company claims to have appointed a grievance officer—but he is a partner at a law firm that represented Twitter at the High Court. So, he’s not a company employee as per the new rules.
• According to the latest enraged statement issued by the government, neither is the nodal officer—who serves as a contact with law enforcement. 
• And the address provided for these two is not Twitter India’s office address, but that of a law firm.
• Also: Twitter has not submitted any information about a Chief Compliance Officer.

The fallout: The government has issued “one last notice” telling Twitter to get in line or lose its safe harbour status—although there is no deadline specified. If it fails to comply with the new rules, all the penalties—including criminal—will apply. 

Not helping matters: Over the weekend, Twitter revoked the ‘blue tick’ for a number of BJP-associated luminaries including one of the accounts of the vice president of India  Venkaiah Naidu and RSS chief Mohan Bhagwat. The reason: They had not logged into their account within the past six months—which is cause to remove the verification tag as per company policy. After all the hue and cry, the blue ticks have been restored, but according to NDTV:

“The Ministry of Electronics and IT is likely to issue notice to Twitter asking why this was done without ‘prior intimation’. ‘This is contempt of a constitutional post. Twitter wants to test India's patience,’ government sources said.” 

FYI: This comes after Twitter slapped a ‘manipulated media’ tag on BJP spokesperson Sambit Patra’s tweet—which earned the company a visit from the Delhi police. 

What does Twitter say?

The platform has not commented on the ‘last notice’ issued by the government. The last time it issued a statement—after the police raid—Twitter made clear the gist of its objections:

“Twitter said it was ‘particularly concerned about the requirement to make an individual (the compliance officer) criminally liable for content on the platform, the requirements for proactive monitoring, and the blanket authority to seek information about our customers’. This, the company said, represented ‘dangerous overreach that is inconsistent with open, democratic principles’.”

The consequences: Will India follow the cue of Nigeria—which just suspended Twitter for deleting a tweet by its president inciting ethnic violence? Unlikely, since none of the penalties for non-compliance include an outright ban. But the government can remove the ‘safe harbour’ protection—will put company employees in jeopardy, making them criminally liable for any tweet that violates the law. FYI: This may explain why Twitter hasn’t named a Chief Compliance Officer. 

The bottomline: Over the weekend, Twitter informed cartoonist Manjul that it has received a request from Indian law enforcement to take action against his account—but noted: “We have not taken any action on the reported content at this time as a result of this request.” OTOH, at the height of the second wave, the company took down 52 tweets that criticised the government on its request. In sum, Twitter wants to reserve the right to block users or delete tweets according to its own policies—without any transparency or recourse. The government wants the right to block users and delete according to its own needs—without transparency or recourse.

Reading list

IndusLaw and the Internet Freedom Foundation have the most detailed breakdown of the new rules. Scroll has more on the latest case involving cartoonist Manjul. Indian Express has more on the safe harbour rule. Quartz looks at the likely consequences of defying the government. We did a detailed overview of all aspects of the new digital media rules—including the impact on news sites.