The last few weeks have seen some heightened tension between the Government of India on the one hand and social media intermediaries in general on the other hand. Amongst all social media intermediaries, Twitter and WhatsApp have hogged a majority of the limelight. The crux of the entire issue in the Twitter controversy pertains to Twitter’s obligations and the Government of India’s role to control activities of intermediaries.
It all started when information about a particular toolkit was tweeted, which was flagged of by Twitter as “manipulated media”. This toolkit tweet had been retweeted by number of political personalities. Hence, marking of the said toolkit information as “manipulated media” started generating lot of heat. Consequently, as reported, the Indian government has expressed strong objection to Twitter for classifying tweets by Indian politicians as “manipulated media”.
Meanwhile, on the complaint being investigated, Delhi Police reached the office of Twitter simultaneously in Delhi and also in Gurugram to serve them a notice seeking more details. Twitter responded back saying that the action of the Government tantamounted to intimidating Twitter India employees and also violation of people’s right to freedom of speech and expression. The heart of this entire issue pertains around the obligation of Twitter as an intermediary and the role of the sovereign Government in this regard.
At the very outset, it needs to be appreciated that India is a sovereign country. Further, as a sovereign country, the Indian Government has complete rights to exercise its sovereign functions to protect India’s sovereignty, security and also integrity.
It is pertinent to note that intermediaries are governed by the Indian mother legislation on electronic format being the Indian Cyberlaw i.e. the Information Technology Act, 2000. Intermediaries have been granted exemption from legal liability under Section 79 of the Information Technology Act, 2000. The Indian Cyberlaw has mandated all intermediaries to comply with the Indian Cyberlaw and rules and regulations made thereunder, exercise due diligence while discharging their obligations under the law and that they do not conspire or abet in the commission of any offence or contravention.
On 25th February 2021, the Government of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The purpose of the said Rules clearly was to elaborate various parameters of due diligence by intermediaries to reestablish, reiterate and reemphasize not just Indian cyber sovereignty but also powers of the sovereign Government to regulate the affairs of the intermediaries.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are a special secondary legislation inasmuch these Rules have been enacted by the Central Government under powers conferred to it under Section 87 of the Information Technology Act, 2000. It is pertinent to note that the Information Technology Act, 2000 is a special legislation and by virtue of Section 81 of the said legislation, the provisions of the same shall prevail over anything inconsistent therewith contained in any other law for the time being in force.
Further, all intermediaries including Twitter have been mandated that once they receive actual knowledge in the form of the court order or being notified by an appropriate government agency, they shall not host, store or publish any unlawful information, which is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality etc.
Further, under Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, significant social media intermediaries having more than 50 lakhs users, have to enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed by the competent authority under Section 69 of the Information Technology Act, 2000.
Such order can only be passed for the purposes of prevention, detection, investigation and prosecution or punishment of any offence related to related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material.
Further, under Rule 6 thereof, the concerned Ministry has been given the power to direct all intermediaries, who are not a significant social media intermediary, to comply with all or any of the obligations mentioned under rule 4, if the services of that intermediary permits the publication or transmission of information in a manner that may create a material risk of harm to the sovereignty and integrity of India, security of the State, friendly relations with foreign States or public order.
Thus, a cumulative reading of the aforesaid provisions makes it amply clear that the relevant entity which decides about India’s security, sovereignty and also integrity of India is the Government of India, who is the sovereign Government of a sovereign nation in this regard.
Intermediaries have no role to guide about the matters concerning the security or sovereignty of India. Further, an intermediary has no role per se to decide any elements pertaining to India’s security.
On the other hand, if intermediaries do not comply with the mandatory obligations given under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, they would be stripped of their statutory exemption from legal liability. Further, they and their top managements would be liable to be punished for offences under the Information Technology Act, 2000 and also the Indian Penal Code, 1860, as stipulated under Rule 7 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Hence, the Government of India alone is the sole and sovereign judge to determine all aspects pertaining to India’s security. All orders passed by the Government of India and its authorities as per existing parameters of law have to be complied with by intermediaries if they do not want to face criminal prosecution.
Intermediaries, over the years, have been pretty reluctant in complying with the Indian Cyberlaw. Some Public Interest Litigations have also been filed challenging the constitutional validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. However, till such time, these Rules are not set aside or repealed, intermediaries have to comply with the directions given by the Government of India in the interest of sovereignty, security and also integrity of India and friendly relations with other nations.
The writing on the wall is very clear. Compliance with Indian Cyberlaw is a condition precedent for intermediaries to operate in and do commercial businesses in India. Intermediaries have to start recognizing the significance of this fundamental legal principle of Cyberlaw jurisprudence and have to ensure compliances with the parameters of the applicable cyber legal frameworks.
Dr Pavan Duggal is a well-known advocate in Supreme Court of India and is an internationally renowned expert on Cyberlaw and Cybersecurity law. He is also the Chairman of International Commission on Cybersecurity Law.
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