Despite the raging pandemic in the country, media attention seems concentrated on a “toolkit”, arm twisting of Twitter India through a letter by the Government of India, a visit by Delhi Police to the closed offices of Twitter India and the rumour of a looming ban of social media companies. Much of this is based on obfuscation, confusion and misuse of power. The current maelstrom has its origin in one tweet by BJP spokesperson Sambit Patra.
On May 18, Patra shared screenshots of an alleged “toolkit” claiming that the Congress party had plans to defame the Union government and its leadership. This was also shared by several other ministers of the Union government. This claim was countered by fact-checking sites Alt News and WebQoof (The Quint’s fact-checking initiative) who found discrepancies and errors in the “toolkit” that Patra had shared.
Congress spokesperson Rajeev Gowda claimed that the alleged “toolkit” was forged by editing a Congress party document related to the Central Vista. The Congress party filed a complaint with the police. Twitter labelled the controversial tweet by Patra as containing manipulated media. This wasn’t the first time Patra’s tweets had been labelled. In January this year, Twitter had labelled another tweet sharing a video on Arvind Kejriwal by Patra as manipulated media. The matter should have ended here or at the most by a complaint by Patra to Twitter appealing this labelling. But the Union government decided to get involved in a matter between a private platform company and its user.
Subsequently, it was reported by various news agencies that the government has objected to the use of manipulated media tag by Twitter and has asked them to remove the tag. The government reportedly took the view that the action of labelling diluted the credibility of Twitter and puts a question mark on its status as an intermediary. This claim has no legal basis and the reasoning is baffling. Twitter, so far, has not removed the label.
Fighting Misinformation
The spread of misinformation is a growing menace on social media platforms. The issue is compounded when accounts with a large number of followers post misleading information. Social media platforms now employ various content moderation methods, including removal and labelling to minimise the harm caused by such posts.
World over, demands to do more have been steadily increasing. When in the spring of 2020, Twitter first labelled content by the then US president Donald Trump, it provoked a massive response in the form of an executive order targeting social media companies. Before permanently banning Trump from its platform in January this year, Twitter had labelled a third of his tweets.
Labelling content as manipulated by Twitter is not a new phenomenon in India either. In December 2020, the company had labelled a tweet by BJP leader and its IT cell head Amit Malviya relating to farmers’ protests as manipulated media. Whether these labels are effective or not, we don’t know yet but they are a start to addressing this problem.
Social media platforms and the law
In most jurisdictions across the world, social media platforms like Twitter and Facebook enjoy safe harbour protection from liability arising out of user-generated content. That means, the companies are not responsible for what you and I may post on their platforms.
Mark Zuckerberg, the co-founder and CEO of Facebook, cannot be sent to jail if I say defamatory things about anyone on Facebook. This allows their businesses to exist and not spend all their resources fighting cases about user-generated content.
India follows a conditional safe harbour regime where Twitter, Facebook (called “intermediaries”) get protection, provided they follow conditions laid out under the Information Technology Act and the Intermediaries Guidelines Rules. The Ministry of Electronics and Information Technology (MeitY) claiming that the problem of misinformation on social media needs better laws, notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to govern the conduct of intermediaries on February 25, 2021.
These rules have also created a new classification of intermediaries called Significant Social Media Intermediaries, which are defined as social media intermediaries that have more than 50 lakh registered users in India. Twitter, obviously falls under this category. A part of these rules requiring the appointment of a ‘compliance officer’ applicable to Twitter comes into force on May 26. Failure to comply with these rules does not result in any ban but more legal headaches for Twitter and its ilk as they lose the safe harbour protections.
The rules specifically require such companies to inform users not to publish or share any information that is patently false and untrue with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person. According to the rules, if a user violates the terms of service, their account can be removed. The labelling of a tweet as “manipulated media” does not take away the Intermediary status of Twitter as threatened by the government.
Users of Twitter are bound by the terms of service of the platform which says that the user may not deceptively share synthetic or manipulated media that are likely to cause harm. The rules also provide that Twitter may label Tweets that contain synthetic and manipulated media. This policy of Twitter explains how the determination is made about the authenticity of the content and whether it needs to be removed or labelled.
Now, for the government to turn around and punish Twitter for doing exactly what its rules require when a BJP functionary is involved reeks of partisanship and hypocrisy. What is sauce for the goose must also be sauce for the gander.
Government’s power to regulate content
The power of the government to regulate content on social media platforms or any other intermediary flows from Section 69A of the Information Technology Act, 2000.
The government can issue orders to block access to any content in the interest of the 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 related to these.
Such a power to regulate content cannot be extended to interfere and ask an intermediary to remove a label or flagging of any content. The argument that the matter is under investigation by law enforcement does not hold water as Twitter’s action cannot pose any hindrance to that.
This arbitrary exercise of power not only raises serious concerns about censorship by proxy but also threatens any serious investments in India. No investor wants to put their money where the law is unpredictable and used to serve political motives.
The Central government’s uncalled for interference to shift focus from the pandemic to a non-issue involving the Opposition flouts democratic values. Instead of using the law to threaten businesses, the ruling party should discipline its functionaries and school them in honestly dealing with legitimate criticism.
(Prasanth Sugathan is a Technology Lawyer and Legal Director, SFLC.in)
(Mishi Choudhary is Legal Director, Software Freedom Law Center and Founder, SFLC.in)
Disclaimer: The views expressed above are the author’s own. They do not necessarily reflect the views of DH.