The Centre on Monday informed the Delhi High Court that Twitter is no longer eligible for safe harbour immunity available to social media intermediaries under Section 79(1) of the Information Technology Act, 2000 because it has failed to comply with the IT (Intermediary Guidelines and Digital Ethics Code) Rules, 2021.

In an affidavit, the Centre urged the High Court to pass an order after stressing that Twitter is in breach of the IT Rules, which “are the law of the land and the Respondent No 2 (Twitter) is mandatorily required to comply with the same”. The affidavit affirms the prayer of the petitioner, Amit Acharya, who has raised issues about Twitter not appointing a resident grievance redress officer to hear complaints against “defamatory, false and untrue” tweets by verified users.

“I state that the immunity conferred on intermediaries under Section 79(1) is a conditional immunity subject to the intermediary satisfying the conditions under Sections 79(2) and 79(3). As provided in Rule 7, failure to observe the IT Rules, 2021 results in provisions of Section 79(1) of the IT Act, 2000 not being applicable to such an intermediary,” said the affidavit filed on behalf of the Union of India by N Samaya Balan of the Ministry of Electronics and Information Technology.

The Centre maintained that Twitter has violated the IT Rules, 2021 by not appointing a Chief Compliance Officer, a Resident Grievance Officer or any Nodal Contact Person even on an interim basis. Its physical contact address, which was shown to be available on May 29, is once again not available on the Twitter website. The government maintained that Twitter Inc had initially appointed the Nodal Contact and Grievance Officer but subsequently maintained that theyhave resigned from their positions. “In the interim, the grievances from India are being handled by personnel of Respondent No. 2 situated in the United State of America which amounts to non-compliance with the IT Rules 2021,” the Centre’s affidavit said.

‘Not complied with Rules’

The Government said that since Twitter is acting as an intermediary and, as such, it should comply with the IT Rules, 2021. And despite three months having lapsed, it has not complied with the Rules.

“I state that the Respondent No.2 (Twitter Inc) is admittedly ‘intermediary’ within the meaning of Section 2(1)(w) of the IT Act, 2000 and an SSMI under the IT Rules, 2021. In spite of the three months’ time granted to all SSMIs to comply with the IT Rules, 2021 having expired on 26.05.2021, Respondent No. 2 has failed to fully comply with the same,” the Centre’s affidavit said.

The immunity of safe harbour is provided under Section 79(1) of the IT Act that states, “an intermediary shall not be liable for any third party information, data or communication link made available or hosted by him”. This implies that intermediaries such as Twitter or Internet Service Providers (ISPs) are not liable if third parties misuse the platform. However, the protection is guaranteed only when the intermediary does not “initiate the transmission”, “select the receiver of the transmission” and “modify the information contained in the transmission”.

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