Twitter Has Lost Safe Harbour, Is Now Exposed To Legal Consequences: Senior Advocate Dr. Pavan Duggal

Senior advocate Dr. Pavan Duggal who has been acknowledged as one of the top four cyber lawyers around the world, in a conversation with Outlook’s Astha Savyasachi, talks about the whole conflict between the Indian government and the micro-blogging site Twitter.

Is Twitter in India not operating within the new IT laws, as the government has charged?

When one looks at the information in the public domain, one does not get to know how Twitter complies with the IT Rules 2021. The IT rules 2021 have provided a new set of compliances to be followed by all intermediaries. However, additional sets of compliances have been stipulated for significant social media intermediaries like Twitter.

Twitter's documented stance is that they are committed to India’s IT Rules and are ‘taking steps in that direction. But under Indian Law, there is no such legal argument as ‘taking steps towards compliance’. You are either compliant with the law or non-compliant with the law.

By the virtue of rules in the IT Rules 2021, Twitter’s statutory exemption from legal liability has been stripped off. So, it has lost that privileged position of protection, of the safe harbour, which effectively means Twitter is going to be exposed to all kinds of legal consequences for all third-party data or information that Twitter is going to make available.

Is there a chance that Twitter may be banned from India? Can Twitter afford to miss the Indian market?

Just because it's not complying with the new IT Rules, is no ground for it to be banned from India. However, it might have to face legal consequences. The banning is something that has not been envisaged under the new IT Rules 2021. But the government can create roadblocks in the smooth and effective running of any service provider who does not comply with the IT Rules. A hostile ecosystem could evolve because of which it does not remain commercially viable for Twitter to operate in India.

What is Twitter accused of in the Congress 'toolkit' case? Has it broken any Indian law?

It's still very early to say what kind of intervention had happened in the toolkit case. The police are investigating. But if an intermediary under IT Rules takes proactive action in mapping or marking certain content as ‘manipulative media’, it cannot be termed as a violation of IT Rules 2021. The rules themselves, encourage service providers to take proactive measures to identify content that violates the law.

Twitter did it in its capacity as an intermediary under the IT Act 2000. If it did not do so, it could have been accused of having conspired or abetted in the publication of such unwarranted content.

If we look at the provisions of Section 79, Section 85 of IT Act 2000, and Rule 3, 4, 5 of IT Rules 2021, a lot of discretion that has been given to service providers and marking any content as manipulative could be seen as an exercise of due diligence.

Does Delhi Police’s raid on Twitter offices amount to an infringement on freedom of speech?

I don't think that when a police officer comes to serve a summon to a particular provider, it can be considered a violation of freedom of speech and expression. It is a normal practice of law.

Technically, the police have the power to ask for any information from the service provider upon the matter that they are investigating. Further, the service provider is duty-bound to provide information to such law enforcement agencies.

Has Twitter ever locked horns with any other country’s government?

Twitter already locked horns with the US government and they opposed tooth and nail all the policies of then-President Donald Trump. Twitter is known to be a company that had gone ahead and suspended not only the tweets but the Twitter account of the sitting US president. And they managed to get away with it without any legal action. This incident appears to be a turning point in the mindset evolution of Twitter. It started to believe that it was special and was over and above the law and could experiment with the legal regimes in other countries.

What Twitter forgot was that India has got a very distinctive legal framework. It might appear to be very slow but once it starts moving, it doesn’t spare anyone.

For the first time, the Indian government has demonstrated its political will to go ahead and implement the IT Rules in letter and spirit and ensure that they don’t become a mere paper tiger.