Twitter loses Immunity under IT Rules, 2021

The Ministry of Electronics and Information Technology, Government of India filed an affidavit in the High Court of Delhi stating that Twitter hasn’t complied with the regulations under IT Rules, 2021 and would thereby lose the conditional immunity given under it.The Government implemented the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules 2021 on 25th February 2021 in the Official Gazette of India. Under the new rules all Significant Social Media Intermediary (SSMI) have to comply with the provisions of the IT Rules 2021.

According to the new Rules, all the SSMIs would not be liable for anything published on their platform unless they ‘initiate the transmission,’ or ‘select the receiver of the transmission,’ or ‘modify the information contained in the transmission’. Section 79 of IT Act states, “An intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him”. This is subject to conditions listed under Section 79(2) and Section 79(3) of the IT Rules.Rule 3 provides for various due diligence obligations to be followed by all intermediaries to avail exemptions from liabilities mandated under section 79(1) of the Information Technology Act, 2000. Rule 4 provides for additional due diligence to be complied with by SSMIs.According to the Ministry, Twitter qualifies as an intermediary and an SSMI under Section 2(1)(w) of the IT Act 2000 and IT Rules, 2021 respectively. Thus, it was obligated to comply with the additional due diligence set out under Rule 4 of the IT Rules, 2021. A time period of 3 months was given to the SSMIs to comply with the IT Rules, 2021 which are mandatory.Under Rule 4, the SSMIs are mandated to appoint a Chief Compliance Officer, Nodal Contact Person, Resident Grievance Officer for various purposes, all of whom have to be resident of India.Under Rule 7, the provisions of section 79 (1) will not be available to the the intermediary if it fails to observe these Rules and it shall be liable for any punishment in respect of the offending content.

According to the Ministry, Twitter has failed to comply with the IT Rules, 2021 as on 1st July, 2021 for the following reasons:a. Chief Compliance Officer has not been appointed;b. The position of the Resident Grievance Officer is vacant;c. The position of Nodal Contact Person, (even on an interim basis), is vacant.d. The physical contact address, which was shown to be there on 29th May, 2021 is once not again available on Twitter’s website.Thus, the Ministry stripped Twitter of the Safe Harbour Immunity (Section 79) for non-compliance with the IT Rules, 2021.

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