“Hostage-taking laws” seem to be fueling a Twitter crackdown in India

A new wave of online censorship is currently unfolding in India.

In recent weeks, Twitter took down posts from several journalists and at least one human rights organization following orders from the Narendra Modi government. Among these tweets were several by Mohammed Zubair, the co-founder of Indian fact-checking organization Alt-News, and at least one from Rana Ayyub, an investigative journalist who has published stories critical of the Modi government. (On June 27, Zubair was arrested for a 2018 tweet that the police believe was provocative and intended to outrage religious feelings.) The platform also censored a 2021 tweet by human rights organization Freedom House.

Twitter’s decisions appear to be a departure from its past statements in India.

In early 2021, when the Indian government had ordered the removal of independent journalism outlet The Caravan and some activist voices, Twitter initially complied with the request. But subsequently, Twitter reversed some of the takedowns and reinstated The Caravan. In a public statement in February 2021, Twitter wrote, “[we] have not taken any action on accounts consisting of news media entities, journalists, activists, and politicians. To do so, we believe, would violate their fundamental right to free expression under Indian law.”

Observers say that the current crackdown is in part driven by a series of social media laws that have taken effect since then — namely, India’s adoption of so-called “hostage-taking laws.” Less than a month after Twitter chose not to comply with the 2021 order, the Indian government issued the Information Technology (IT) Rules, 2021, which require all social media platforms to appoint a chief compliance officer. That officer must be a resident of India, and would be criminally liable if the company does not comply with official orders.

On July 5, Twitter sued the Indian government over the takedown orders. Reporting from the Hindustan Times newspaper, quoting unidentified sources, suggested that the Indian Ministry of Electronics and Information Technology had sent Twitter a letter “detailing serious consequences of non-compliance,” which included criminal proceedings against the chief compliance officer.

Increasingly popular around the world, “hostage-taking laws,” are government mandates that require social media companies to have physical offices and employees in the countries where they operate. In addition to India, these laws have been put in place in Nigeria, Turkey, and Vietnam. Observers say that Twitter’s recent takedowns in India highlight how governments leverage these laws and create a regulatory environment with higher-stakes penalties, which makes it easier to demand companies to censor the speech of journalists and dissidents.

“You have to realize that the rules of the game have changed,” Nikhil Pahwa, a digital rights activist and founder of tech policy publication MediaNama, told Rest of World. “Whatever Twitter may have blocked last year…the Indian government has since given itself the power to jail someone from Twitter if it does not comply with government orders. And that’s a risk very few companies, maybe no company, will be willing to take.” Twitter did not respond to Rest of World’s request to comment.

“Not only Twitter, but other companies have obviously shifted in their stance about how they’re going to address matters of blocking and content takedown in India,” Mishi Choudhary, an online civil liberties activist and legal director of the Software Freedom Law Center, told Rest of World. She also pointed to related concerns about the personal safety of Twitter employees and executives following the raid of Twitter’s India office in May 2021. “Obviously their posture is going to be different now,” she said.

Choudhary is quick to point out that while the IT Rules, 2021 can be characterized as including a “hostage-taking law,” it also includes language that forces the creation of grievance officers to field individual user requests to remove material. The legislation also puts a 36-hour clock on removal of content deemed harmful or illegal by a government ministry. Together, these rules have put new pressures on platforms like Twitter. “It is a great petri dish we are watching,” Choudhary said. “The executive is really workshopping how they can use the [social media] companies in their censorship by proxy.”

Even as Twitter took down several posts over recent weeks, the company chose not to comply with all government requests, and resisted taking down another tweet by journalist Zubair.

The lack of clarity around why some orders are fulfilled and others are not is part of the opaqueness built into the censorship process, according to Choudhary. Section 69a of the Information Technology Act, the legislation that is cited in most social media censorship cases, includes a secrecy statute that allows social media censorship orders to be sent by the government without notifying the person whose speech is being censored, and without explaining their grounds to the user.

That leaves little recourse for private citizens looking to challenge censorship orders in court, according to Choudhary, who has represented clients targeted under Section 69a. “The individuals and the users are always left out and don’t have a seat at the table as the negotiation of their rights is happening,” she said.