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Is Twitter India capable of taking down content from platform? Karnataka High Court asks UP Police

Earlier, the court had passed an interim order restraining UP Police from initiating any coercive action against Twitter India’s Maheshwari over the Ghaziabad viral video case.

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, said Twitter India Managing Director Manish Maheshwari’s counsel at a Karnataka High Court hearing.

In the same hearing, the Karnataka High Court criticised Uttar Pradesh Police for not affirming the ‘basic facts’ in the Ghaziabad assault video case wherein both Twitter Inc and Twitter India have been named as accused. The UP Police has been insisting on Maheshwari’s appearance at the police station as part of its investigation of posts on the Ghaziabad assault case.

The single-judge bench of Justice G Narender took cognisance that Twitter Inc and Twitter India were different entities, and questioned whether the latter was ‘capable of taking down the content’. The bench also noted that Maheshwari had stated that Twitter India has no control over the content on the platform.

UP Police issued notice under Sec 160 CrPC; he (Maheshwari) has responded saying he has no control over the content and pleaded inability. Have you even ascertained whether Twitter India is capable of controlling the content? — Justice G Narender

Justice Narender criticised the UP Police’s counsel Prasanna Kumar for unsatisfactory responses when questioned in this regard. “Unless you can show Maheshwari was the one who uploaded the content or did not take it down, he is nobody,” the judge said.

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Background: 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 150 of the CRPC and Section 41 A respectively, urging him to appear in person for investigation purposes.

During Tuesday’s hearing, Justice G Narender asked, “What is the allegation against Twitter India? There must be substance to say Twitter India is capable of removing it? How does the complainant connect Twitter India?”

“Have you made prima facie determination that Twitter India is responsible or is in control to stop the act (deletion of the content)? Whether Twitter even claims to be an intermediary? Basic affirmation of facts even has not been done here.

Who says Twitter India is an intermediary? For them to comply with IT Act and Rules, they have to be an intermediary. You cannot affirm this basic fact. First notice was issued on June 17, where are you now?” – Justice Narender asked UP Police counsel Prasanna Kumar,

Justice Narender then asked, Twitter India employee Maheshwari’s counsel CV Nagesh, whether the company came under Section 79 of the IT Act. Nagesh replied, “I am not an intermediary.”

What is Section 79 of the Information Technology Act, 2000?

  • The section details provisions for an intermediary to be exempted from liability in cases where third party information, data, or communication link is hosted by a platform
  • It shall also apply if an intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted, temporarily stored, or hosted
  • The provision does not apply if the intermediary has conspired, abetted, aided, or induced, whether by threats, promise, or otherwise in the commission of the unlawful act.
  • It will also not apply if upon receiving information that any content on the platform is being used to commit the unlawful act, the intermediary fails to remove or disable access to that material

UP police have ulterior motive: Maheshwari’s counsel

On June 24, when Maheshwari’s petition was first heard by the Karnataka High Court, Nagesh had pointed out that one of the notices served by the Loni Border Police Station, made under Section 41 A, gives provision to the police to arrest Maheshwari. He had questioned the applicability of such notice being served to his client when there was no reasonable complaint or suspicion on Maheshwari. Section 41 A states that a notice under the provision can be served only when the police have a reasonable complaint or suspicion against a person.

Based on these representations, the High Court had provided interim relief to Maheshwari from any coercive action against him by UP Police, but also insisted that UP Police continue with their investigation, and carry out the interview with Maheswari that they have been demanding all along, virtually.

On Tuesday, Maheshwari’s counsel CV Nagesh pointed out that the interview had still not been conducted by UP Police. “I am willing to cooperate over video conferencing. But they still do not want me to appear over video — probably because of some ulterior motive. In the next 24 hours, I am ready to appear on video or physically. But they (UP Police) must give an undertaking before this court that they will not lay a hand on me,” he said.

These are the other important submissions made by Nagesh —

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  • Uttar Pradesh did not have any jurisdiction to issue a notice under Sec 160 of the CrPC in Mumbai, Delhi, or Bengaluru, as he claimed that the said section infringed on his client’s fundamental rights.
  • Despite Twitter India not being in control of any data of the users of Twitter, Maheshwari is willing to cooperate with Loni Border Police.
  • Citing 305 (2) of the CrPC, Nagesh said that it is the company that is empowered to nominate representatives of a company in an inquiry or a trial, not the police.
  • The names of the three directors of Twitter India is easily available with the Registrar of Companies. Why has the notice been sent to him?
  • When UP Police’s counsel argued that Twitter India was liable under IT Rules, Nagesh pointed out that in the FIR registered at Loni Border PS, IT Rules 2021 was not invoked.

FIR is regarding non-compliance with IT Rules: UP Police’s counsel

This is probably the first time that a representative of a public authority has 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. The Union government has repeatedly said that a significant social media intermediary (SSMI) which does not comply with the rules will lose exemption from liability under the IT Act 2000. Since the deadline for compliance has passed, several cases have been booked against Twitter and Twitter India’s Manish Maheshwari for various alleged offences related to content posted on the platform.

“The whole FIR is regarding non-compliance with the IT Rules 2021 by Twitter in India. All we want is cooperation from them. The company has a responsibility towards the country,” Prasanna Kumar said. He also assured that “there is no threat to the liberty of petitioner” in response to previous submissions made by Nagesh regarding the applicability of the notice under Section 41 A.

“All UP Police wants to know is who is in charge of Twitter in India. If they had disclosed this, none of this would have happened,” UP Police counsel Kumar said.

Apart from this, Kumar also brought up the issue of territorial jurisdiction of the case and said that the FIR was registered in Ghaziabad, and the notice was issued on an address in New Delhi. He also cited several judgements that showed that the residence of the petitioner did not matter when it came to adjudging the jurisdiction of a plea.

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Among other subjects, I cover the increasing usage of emerging technologies, especially for surveillance in India

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