The Indian government has said that Twitter could lose its “safe harbor” protections — the rules that designate it an intermediary, rather than a publisher — and make it responsible for all of the content that appears on the platform. Writing on Twitter, Ravi Shankar Prasad, the minister of communications, electronics and information technology, accused the company of “deliberately [choosing] the path of noncompliance” with new rules governing social media in the country.
The move is the latest in a series of attacks on Twitter by the government of Narendra Modi, culminating in a widely covered police raid on the company’s offices in May. However, legal experts told Rest of World that the latest threat is essentially hollow, and that it is the courts, not the government, that have the power to decide whether or not Twitter should keep its safe harbor provisions.
“I would like to clearly state: the IT Act, IT Rules do not contain any power for the process for grant[ing] or revocation of an ‘intermediary status’,” said Apar Gupta, executive director of the Internet Freedom Foundation. “When companies like Twitter are prosecuted, they will seek protection before courts. Hence, at that time, courts will decide, not the government if it is an intermediary.”
Narendra Modi’s Bharatiya Janata Party has used Twitter extensively for political communications over the years, and the prime minister has 69 million followers on the platform. However, the relationship between Twitter and the government has deteriorated dramatically over the past year and a half. The government has frequently demanded the platform remove tweets critical of the regime, requests that Twitter has sometimes resisted. In May, the platform marked some political figures’ tweets as “manipulated media.”
In February, the government introduced new rules governing social media platforms, requiring them to appoint an India-based grievance officer, who would be responsible for acknowledging the complaints or requests from the government, or from ordinary users, within 24 hours. Failing to comply could result in criminal prosecution. Digital rights groups and social media companies oppose the regulations, versions of which have been implemented around the world, and which have been dubbed “hostage-taking laws” by critics. Cases have been filed in multiple courts challenging the constitutionality of the rules, while WhatsApp is suing the government over a provision that would require them to trace the originators of messages on their platform.
The three-month deadline to comply with these rules lapsed on May 26. Google, Facebook, and Indian Twitter-clone Koo have all appointed local grievance officers (Koo was the only platform to appoint a grievance officer before the deadline passed), but Twitter hasn’t. The government’s argument is that this means the platform has failed to meet the requirements, and hence has forfeited its status as an intermediary. That would mean it would be treated as a digital publisher, and held responsible for all of the comments posted on the site.
Legal experts told Rest of World that this isn’t something the government can unilaterally declare, and would need to go through the courts. Instead, it’s an attempt to bully the company into compliance.
“It’s basically a political pressure tactic,” said Divij Joshi, a lawyer and researcher studying technology regulation in India. “Twitter is in a situation right now where it has to balance its human rights considerations with the political environment in India. And the government is trying to do its best to make sure the balance falls in its favour.”
In a statement, a Twitter spokesperson said the company is keeping the IT ministry “apprised of the progress” in the process.” The spokesperson also added that an interim chief compliance officer had just been retained and Twitter continues to make every effort to comply with the new guidelines.
The Ministry of Electronics and Information Technology did not respond to requests for comment.
Joshi said that although the government could do something unconstitutional to clip Twitter’s wings — they have previously shut down the internet for large sections of the population multiple times, and last June banned hundreds of Chinese apps, including TikTok — they still depend on the platform for their political reach. An outright ban would be too politically damaging, so the government is likely to keep trying to “nudge Twitter’s behaviour to be more favourable towards [them].”
“I personally think the government for its own good will not ban Twitter, because Twitter is a source of legitimacy. It’s kind of a symbiotic relationship,” he said. “It depends on it for electoral victory, it depends on it for its own political messaging.”