Micro-blogging site Twitter has indicated that it will comply with all existing Section 69A orders issued to it, by the Ministry of Electronics and Information Technology (MeitY), after the latter sent it a ‘final notice’ to comply with the orders or risk penalties applicable under the Information Technology (IT) Act. According to reports by the Times of India and the Economic Times, the ministry had sent the platform a notice on June 27th to comply with orders MeitY had, particularly on June 6th and 9th, or risk facing consequences.
Under the IT Act, an intermediary can lose its intermediary status (which includes immunity from legal action on unlawful content posted on platforms by third-parties) and face criminal action particularly against its Chief Compliance Officer, for not removing certain unlawful content.
However, ministry officials quoted in the report have said that Twitter has not responded to multiple such notices of non-compliance, including those served to its Chief Compliance Officer. “Despite repeated notices and chances being given to them to act, Twitter continues to remain in violation. Therefore, appropriate action is being taken against (it),” an Economic Times report quotes a senior official as saying.
Why it matters? Twitter, which touts itself as a defender of free speech with CEO Parag Agarwal backing a statement in April which said that Twitter’s legal team aggressively fights court battles protect the free speech rights of its users, has been in the government’s crosshairs on this front before. The platform also maintains a low 3.5% compliance rate with government’s requests for information on certain content, users, etc. The ministry’s notice comes on the back the government serving multiple recent takedown orders issued against tweets by certain journalists, activists, non-governmental organisations, etc. some of which the platform refused to comply with. Thus Twitter’s agreement to comply with all the pending Section 69A orders could mean increased censorship on the platform.
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Recent controversial notices issued to Twitter
Tweets by Rana Ayyub, Freedom House, Farmer bodies:
On June 26th, the government served Twitter notices to remove 80 tweets, including most significantly those made by:
- Journalist Rana Ayyub: Tweet containing commentary on a lower court allowing a survey of the Gyanvapi Mosque in Varanasi.
- American Think-Tank Freedom House: Tweets promoting its “Freedom in the World 2021” report which accused the Modi government and the BJP of “continuing to crack down on critics during the year” and of “tragically driving India itself toward authoritarianism.”
- Farmers body Kisan Ekta Morcha: The entire account was briefly locked, although the reasons for the blocking as well as subsequent restoration are not known.
Tweets by Mohammed Zubair:
On June 22nd, Mohammed Zubair , Co-Founder of Fact-checking site AltNews tweeted that he had received an email from Twitter saying that his account had violated Indian laws, according to a request the platform had received from the government. However, the notice added that the platform was not going to take action on the request at the time.
Powers of the government to issue takedowns
Under Section 69A of the IT Act, the government can to order the takedown of any content online. The grounds for such a takedown should be “in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above,” according to the Act. As aforementioned, failure to comply with such an order could lead to an intermediary losing its indemnity against unlawful third party content i.e., safe harbour protections and thus open it up to several legal battles.
When platforms can choose not to comply with such an order?
In April, MeitY had similarly issued a legal request against a tweet by The Wire which Twitter had refused to comply with. Commenting on the matter then, Tanmay Singh, counsel at Internet Freedom Foundation (IFF) had told MediaNama that it was not very clear how a platform could refuse to comply with such an order. According to him, the answer may lie in how such a ‘request’ – as Twitter’s email to The Wire had put it- from the government was worded.
‘Two kinds of orders that they (intermediaries like Twitter) have to comply with- One is a court order, the other is an order under 2009 Blocking Rules which flows from Section 69 of the IT Act. That will take a certain form, it will have to comply with certain procedural safeguards for example the grounds under Section 69. However, MeitY can still put in a request like a user report. It is possible that the government did not word it as an order, they may have sent in a request saying “please take it down”,’ Singh told MediaNama.
Previous friction between Twitter and the government
While in this case Twitter has agreed to comply with the orders sent by the government, previously such non-compliance had not served it well.
For instance, in February 2021, Twitter was asked to suspend several accounts in a legal requests from the government which it reversed after a day. Subsequently, MeitY sent it an 18-page notice for not complying and a list of another 1,178 accounts to be blocked of which Twitter blocks 500 accounts but refuses to block others on grounds of ‘free expression’. Subsequently, on February 10, MeitY held a meeting with Twitter VP for Global Public Policy Monique Meche, and Legal VP and Deputy General Counsel Jim Baker, both US-based executives, as per a press release. In this meeting, MeitY urged Twitter to follow Indian laws (which includes, complying with takedown requests).
Later in June, Twitter again faced multiple legal battles as it had not complied with provisions of the then newly-enacted Information Technology (Intermediary guidelines and Digital Media Ethics Code) Rules, 2021. As per the Rules, Twitter had to instate a Nodal Officer, Resident Grievance Officer, and a Chief Compliance Officer- all of which the company had not done leading the Indian government to file an affidavit in court that the platform had lost its safe harbour protection.
However, in August, once the company had made the necessary appointments, the government submitted to the Delhi High Court that the platform was in compliance with the Rules.
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