The question of regulating Twitter and other tech giants has been discussed in the India for years, and experts often argue over what should be subject to regulation. Should guidelines look at content moderation? Should parliament push for more security and data transparency? It seems that over the years there are several complexities that have emerged in the regulatory debate. With users being heavily dependent these tech giants have gained a clout in determining almost all the quarters of our life which explains our hesitance in letting tech firms do whatever they like and regulate themselves.
The Information and Technology Act, 2000 under section 2(w) defines Intermediary as
2(w). “with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”
The definition under 2(w) is vaguely drafted as it limits the role of intermediary as someone who merely receives, store or transmit data. The act further gives immunity to the Intermediary under Section 79 only in the event where the Intermediary does not (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission;
79. Exemption from liability of intermediary in certain cases. – (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him. (2) The provisions of sub-section (1) shall apply if– (a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or (b) the intermediary does not– (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission; (c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf. (3) The provisions of sub-section (1) shall not apply if– (a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
However, twitter more than often end up amplifying inflammatory political rhetoric, misinformation, conspiracy theories, and flat out lies to its users by routinely using data algorithms by studying user preferences. The Act further where does not gives any leeway to intermediaries to block or suspend users and censor their freedom of speech and expression without government over sight as provided under section 69A of the Act.
69A. Power to issue directions for blocking for public access of any information through any computer resource.–(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, 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, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource. (2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed. (3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.
Twitter guidelines to block or permanently suspend the user ultra- vires the Constitution and IT Act. There guidelines have unbridled power to censor or suspend the contents merely on their own whims and fancies thereby infringing the fundamental rights of free speech and expression as guaranteed by the Constitution of India. It becomes important to remind the tech giants that the Universal Declaration of Human Rights provides for the right to free speech and expression under Article 19. It provides that each and every person has a fundamental right to hold opinions and views without any intervention. The International Covenant on Civil and Political Rights also safeguards the right to express freely under Article 19 of it. It states that “everyone shall have the right to freedom of expressions; this right shall include freedom to seek, receive and impart information’s and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
Traditionally, social media platforms have enjoyed immunity. The prevailing argument is that social media firms cannot be held accountable as they do not publish content, nor do they have editorial control over the content that they host. Big Tech platforms do not play a completely neutral role. Twitter and other tech giants design algorithms that define the order in which search results are served by selecting the receiver of the transmission. Complete legal exemption from responsibility is therefore no longer sustainable. Social media platforms should be treated as publishers. This would involve the kind of regulatory approaches that are used for legacy media, such as print, radio or television. In addition, social media platforms would be expected to comply with the standards for ethics in journalism.
It may be argued that the Twitter is a private entity; which is true; what is also true is that they have become a primary platform for communication both for citizens and government functionaries including heads of the states thereby effectively performing public function and broadly comes under the definition of ‘Other Authorities’ under Article 12 of the constitution which will make it subject to the constitutional discipline of the fundamental rights.
Unregulated social media pose a threat to Indian democracy. These challenges can be addressed by issuing new guidelines for the Intermediaries or to define the term ‘social media’ under the IT Act in order to regulate the policies of tech giants efficiently.
Author is Advocate- Lucknow Bench of Allahabad High Court
