The debate over social media has been vociferous, but the discourse on the tussle between Twitter, in particular, and India’s government over the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, has been defined by two parallel narratives. One focuses on Indian sovereignty and the arrogance of a foreign company that ignores our laws. The other sees a nefarious attempt to subdue dissent and chill free speech. Here are four points to help navigate the two.
First, entities operating in India are required to comply with Indian law. If Twitter thinks that the Intermediary Guidelines are unconstitutional, it must challenge them in a court of law and obtain a stay on their operation. There is no legal option to ignore a law that one does not like.
Second, entities operating in India are entitled to the protection of law. Twitter as a private company is entitled to frame and implement policies and rules for those who wish to use its platform, as long as these rules and regulations don’t violate the law. Twitter has policies dealing with the labelling of tweets, approving blue ticks and excluding the accounts of persons who egregiously violate its terms. No Indian law deals with the labelling of tweets. Accordingly, Twitter has the right to implement its policy, the rationale for which was simply to avoid the avalanche of fake news, deep fakes and misinformation that has plagued social media for at least five years and which culminated in the Washington DC insurrection of 6 January 2021.
All users are required to follow a code of conduct. Violations of it can result in a person’s account being blocked. This is no different from restaurants or hotels stating that they reserve the right to entry. Blue ticks are a voluntary mechanism for verification. It is logical and indeed imperative for Twitter to use artificial intelligence (AI) and remove such ticks from vacant or dormant accounts, perhaps like bank lockers being sealed if unused for a few years. Twitter violates no laws in enforcing these policies.
If any of these policies are wrongly applied, the person has the right to complain and have that grievance redressed. Since Twitter is a private platform, if one objects in principle to such powers, one can delete one’s accounts. There can be no right to use the platform but not follow its policies.
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Third, Twitter has complied with the spirit of the Intermediary Guidelines by appointing a resident grievance officer, but is dithering over appointing permanent employees as resident grievance and nodal officers, which is the literal requirement. A resident grievance officer will ensure that complaints from India will be dealt with as per law, regardless of whether s/he is a permanent employee or on a contract. Why does Twitter not appoint an employee as the guidelines demand? Perhaps because of a message that it received when its offices were raided by the police to “submit” a letter in a matter involving labelling of a tweet by a member of India’s ruling party. Similarly, airlines may now be reluctant to fly over Belarus after it used its air force to enforce a plane’s landing to arrest a Belarusian dissident. These kind of actions make foreign investors queasy.
But how should the government react to partial compliance and a request for more time? One response would be to insist on full compliance immediately at the cost of losing ‘intermediary’ status, as the guidelines prescribe. Without intermediary protection, Twitter will almost certainly exit India—much in the way that The Coca-Cola Company exited when it was asked to reveal its secret formula. Should this happen, it will be akin to another episode of ‘retrospective taxation’ for foreign investors, which had caused a widespread outcry. India’s ties with the US will also be impacted. Since Twitter is in the business of free speech, such an act will further reduce our rankings on global democratic and freedom indices, taking them closer to those of Nigeria, or Russia, or China, which have reacted in ‘strong’ ways to these social media companies. In addition, Twitter plays a rather large role in our political dialogue. Losing it overnight will hurt citizens who find it useful to obtain medical supplies, and will damage political parties that use ‘cyber cells’ for mass communication.
An alternative response would be more measured: No coercive action, but a dialogue held to arrive at some via-media solution.
How did the US react when its then President Donald Trump was de- platformed by Twitter? Apart from Congressional hearings, nothing. Having power, as the government does, is not the same as exercising it. Sometimes the prudential choice is to avoid the aggravation of a situation.
Fourth, consider both framings. By one, Twitter violated Indian sovereignty by refusing to follow the dictates of the government on banning the account of Caravan magazine. By another, Twitter defended constitutionally-guaranteed free speech in India by refusing to muzzle it. Both are true, and which one is more appealing depends on your own views. Twitter and other social media companies have business models that depend on protecting the free-speech rights of people. Should the government have the power to ban handles? Of course, but such powers ought not to be exercised to stifle inconvenient speech that is constitutionally protected. Courts have not had a final say on the Guidelines and there is an arguable case that they are excessively broad and possibly unconstitutional.
In short, Twitter must comply with Indian law, while the law and Indian government must comply with India’s Constitution and act with caution. Narratives do have a role, but we must resist the temptation to completely outsource our judgement to them.
Rahul Narayan is an advocate on record at the Supreme Court of India who works on technology law, digital rights and privacy.
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