Legal experts weigh in on the judgement pronounced yesterday in the matter of Twitter India’s employee Maheshwari’s petition that he filed after UP Police named him in an FIR over the Ghaziabad assault video case.
The Karnataka High Court’s judgement quashing Uttar Pradesh Police’s Sec 41A notice to Twitter India’s Manish Maheshwari and the observations made by Justice G Narender has been termed as ‘monumental’ and of ‘tremendous importance’ by legal experts and researchers. But why?
Why it matters: This decision and the observations made by the Karnataka High Court may have repercussions on other cases that have been registered against Twitter India and Maheshwari, since the court has stated that Twitter India is an independent entity, and has no control over the content on its platform. One of the cases that have been filed against Maheshwari and Twitter India by Madhya Pradesh Police involves an incorrect depiction of the Indian map on the micro-blogging platform.
MediaNama spoke to a number of experts in the legal domain who pointed out that although the judgement will not be binding to other High Courts in the country and that they will be free to give their own directions, the detailed nature of the Karnataka High Court will have some ‘persuasive value’ that may come to the aid of the courts while coming to a decision. Some also opined that UP Police may choose to approach Supreme Court for appealing this order.
Background: However, before we go into any further details, here is a look at what the case was about. Over the last month, the Karnataka High Court was hearing a petition filed by Maheshwari seeking relief from the Uttar Pradesh police which had served two notices to the former over content that was uploaded on Twitter. The content in question is a viral video of an elderly Muslim man who was attacked in Ghaziabad’s Loni district on June 5. While many took to social media to say that the attack was communal in nature, the Ghaziabad Police claimed that it was not, and it urged Twitter to take down such content. Following that, the Loni Border Police registered an FIR against a few people who uploaded the video and also, against Twitter Inc and Twitter India for allegedly failing to take down the content despite a ‘clarification’ issued by Ghaziabad Police. It is in this regard that the police sent two notices to Twitter India’s Manish Maheshwari, under Section 160 of the CRPC and Section 41 A respectively, urging him to appear in person at the police station for investigation purposes.
The order dictated by Justice G Narender said that Sec 41 A cannot be used as “tools of harassment” and maintained that the UP Police did not meet the obligations necessary for them to issue a notice under the same section. Justice Narender added, “It is not in doubt that the very impugned notice itself threatens actions and violation of liberty, which is a fundamental right”. These are the directions and observations made by Narender during the course of the pronouncement of the judgement —
- Invocation of Sec 41A notice to Maheshwari (that gives police powers to arrest him if they deem he is not cooperating) was beyond the jurisdiction as Maheshwari does not meet the provisions necessary for the application of the notice. The judge deemed the notice as mala fide
- The Sec 41 A notice is quashed and is to be treated as Sec 160 CRPC notice, and the order directed UP Police to take Maheshwari’s statements if necessary over video call.
- On UP Police: “It is not only the failure to secure information from public authorities (Twitter master data), but also the ominous silence maintained by the police in regards to the merit of the matter. UP Police attempted to coax the court to reject the petition on grounds of jurisdiction.”
- Justice Narender also observed that Twitter India is an independent entity controlled by Ireland-based Twitter International Company and Twitter Netherlands. He also said that Twitter India has no control over the content on the social media platform. The content, the Court noted, was controlled by Twitter Inc, which is based in the USA.
Direct counter to claims that Twitter has lost its safe harbour
In terms of implication Torsha Sarkar, a lawyer and a policy officer at the Centre for Internet and Society said that this judgement was a “direct counter” to the claims made by the Indian government that Twitter has lost its ‘safe harbour’. Since May 26, which was the last date to comply with the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules, Twitter had been in a tussle with the Indian government regarding the rules.
Beyond the fact that whether or not an intermediary retains or loses its safe harbour is a judicial determination, if we consider that if Twitter India now does not have control over content posted on the platform at all, then can any content-related dereliction of due diligence duties be really counted towards harming its legal immunity? In other words, if Twitter India does not have control over content, then can it be asked subsequently, to do something about that content legally? The immediate answer, as per Karnataka HC’s decision, might be no, but there might also be a chance that future court judgments distinguish this case on its facts — Torsha Sarkar, Policy Officer, Centre for Internet and Society
A brief timeline of the tussle between Twitter and the Indian government —
- May 25, 2021: It is the last date to comply with the IT Rules 2021, Twitter is yet to appoint a grievance redressal officer, chief compliance officer, as is mandated in the Rules.
- May 28, 2021: Twitter’s non-compliance with the Rules is brought up in a petition filed against Twitter by advocate Amit Acharya in the Delhi High Court. During the proceedings, Twitter informs that it has appointed an interim grievance redressal officer, Dharmendra Chatur.
- June 5, 2021: Indian government soon criticises Twitter for this appointment and points out that Chatur is not a direct employee of Twitter but an advocate. The government also points out that the address of the nodal contact person (the details of which have to be furnished under the IT Rules 2021) is that of a legal firm and not of Twitter.
- June 16, 2021: Multiple reports citing unnamed government sources say that Twitter has lost its status as an intermediary for failing to comply with the IT Rules.
- June 28, 2021: Chatur, the interim grievance redressal officer, resigns from his position. Reports of Twitter losing safe harbour provisions are confirmed by the Indian government in an affidavit filed before the Delhi High Court.
- July 11, 2021: Twitter appoints an interim grievance redressal officer and interim chief compliance officer. It also publishes a periodic compliance report as mandated by the IT Rules 2021.
Judgement may prove to be check and balance to powers of law enforcement
“This ruling of the Karnataka High Court, can be of tremendous importance, as it might, for the times to come, determine the course of procedure to be followed by law enforcement bodies in dealing with cases related to illegal or allegedly illegal content on social media. If this goes on to decide the course of procedural law to be adhered to, it would be a fair check and balance on the powers of law enforcement bodies to issue a notice to persons such as Managing Directors of social media platform’s Indian subsidiary companies,” said Amay Jain, Associate at Victoriam Legalis. (emphasis supplied)
Throughout the course of the proceedings, Maheshwari’s counsel CV Nagesh had argued that the UP Police did not fulfil the requirements necessary for issuing a Sec 41A notice. The requirements are “against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists”. Justice G Narender too had questioned UP Police’s counsel Prasanna Kumar in this regard while passing an interim order restraining the UP Police from initiating any coercive actions against Maheshwari on June 24. As mentioned before, the HC maintained in its order that Sec 41A notice which was ultimately quashed was malafide, and observed that it should be used as an ‘arm twisting’ technique.
These are the other police proceedings against Maheshwari —
- Madhya Pradesh police booked a case against Twitter India’s Manish Maheshwari after the social media platform posted an inaccurate depiction of India’s map on their website, confirmed an MP Police official to MediaNama.
- The Uttar Pradesh Police named Twitter India head Manish Maheshwari in a first information report (FIR) over a map on Twitter’s website showing Jammu, Kashmir, and Ladakh as a separate country.
- Ghaziabad Police sent two legal notices to Maheshwari in connection with a viral video of an elderly man in the Loni area of UP being assaulted.
- Delhi Police had served a notice to Maheshwari in connection with the ‘manipulated media’ tag on a few posts made by BJP politicians.
What are the options that remain for UP Police?
Siddharth Jain, partner at PSL Advocates and Solicitors while stating that the particular judgement may come in aid of other High Courts while deciding similar cases, said that the UP government may challenge it in the Supreme Court. “Given the stakes involved, the government of Uttar Pradesh amongst others, would definitely challenge the judgement before the Supreme Court and the law would finally be settled only by the Apex Court,” Jain added.
Similarly Rishi Anand, partner at DSK Legal pointed out, “It is pertinent to note that Information Technology Act, 2000 confers extra-territorial jurisdiction on law enforcement agencies and courts, by empowering them to take cognizance of offences involving a computer, computer resource or computer network in India, and thus a possibility of summons to Twitter Inc. may not be ignored.”
During the course of the court hearings, Maheshwari’s counsel had said that Twitter India is not an intermediary under Section 79 of the IT Act and thus, is not liable to comply with the IT Act 2000 and Information Technology Rules 2021. This answer had come in response to a query by Judge Narender if Twitter India, like Twitter Inc, was “capable of taking down content” from the platform. In that same hearing, UP Police’s counsel Prasanna Kumar had claimed that the FIR that was registered against Twitter India and Twitter Inc for not allegedly removing the video from the platform, was related to the IT Rules 2021. This was probably the first time that a representative of a public authority had correlated the action sought against Twitter India and Twitter Inc, with the social media company’s non-compliance with the IT Rules 2021; the last date to comply with the IT Rules was May 26.
- Karnataka HC quashes UP Police’s Sec 41A notice to Twitter India employee, calls it ‘arm twisting’
- Karnataka HC restrains UP Police from taking any ‘coercive action’ against Twitter India’s Manish Maheshwari
- Ghaziabad Police sends notice to Twitter MD over Loni assault video: Reports
- UP Police lodges FIR against Twitter and others for posts on Ghaziabad attack
Update, July 24, 06.38 pm: The firm PSL Advocates and Solicitors was wrongly named at PSL Advocates and Sailors