Twitter Vs. India: Company Loses Legal Immunity; Criminally Liable For 'Misleading' Content

Twitter has lost its legal shield against prosecution in India for not conforming to new rules on appointing key compliance officers based in the country, making it the only Big Tech company that could face criminal liability for unlawful content posted by third parties.

As if on cue, a case was filed against Twitter in the northern Indian state of Uttar Pradesh on Tuesday night over tweets about an assault, which authorities described as provoking "communal sentiments." With its legal protections gone, Twitter's top executives now face arrest and even jail.

India's Information Technology Minister Ravi Shankar Prasad addressed the issue in a series of tweets Wednesday morning. He said "Twitter was given multiple opportunities to comply with the same, however it has deliberately chosen the path of non compliance."

He further said: "If any foreign entity believes that they can portray itself as the flag bearer of free speech in India to excuse itself from complying with the law of the land, such attempts are misplaced."

Twitter has been locked in a tense stand-off with Prime Minister Narendra Modi's government over compliance with new rules to continue enjoy legal protections over third-party posts. India's government has sought to compare how quickly Twitter de-platformed President Trump after the Jan. 6 riots in Washington, D.C., and how it follows strict EU rules for digital content.

Asia's third-largest economy is key to Twitter's growth but the company's reluctance to accede to government requests to block content that it deems inflammatory or critical have led to charges of "digital colonialism" from the ruling Bharatiya Janata Party. That is a particularly sensitive topic for India, which was under British colonial rule before independence in 1947, and pillaged by a western corporation — the East India Company — before that.

The case in Uttar Pradesh is connected to an alleged assault of an elderly Muslim man on June 5. The victim claimed he was targeted because of his religion, and his tormenters were shouting "Jai Shri Ram," a chant used by far-right Hindu activists. But the police said their investigation found the abductors also included Muslims and the assault stemmed from a business dispute. At least one journalist who was named in the police case for tweeting a video of the victim's version, deleted it and said he was wrong.

Muhammad Zubair, co-founder of fact-checking website Alt News tweeted: "I've deleted the videos that I had posted. The victim's version of him being forced to chant "Jai Shri Ram" at this point in time do not seem to add up based on my conversations with police authorities and other journalists reporting on this issue."

Twitter was accused in a First Information Report (FIR) for not removing "misleading" content about the incident. Police said that Twitter had done nothing to prevent the video from getting viral, and named Twitter and Twitter Communications India Pvt, among others, in the FIR.

Indian law grants social media companies protection against criminal liability for posts by third parties under Section 79 of the IT act. Facebook, Whatsapp, Instagram, Youtube and Google remain protected under the law.

Under the new rules, Big Tech companies were given a deadline until May 25 to appoint statutory officers but lockdowns and closures delayed compliance. While other companies largely complied, Twitter failed to.

The government gave Twitter "one last notice" on June 5 urging it to comply with the rules.

“The company had been given extra time to comply with the guidelines, but it has failed to fall in line with the new IT Rules despite our repeated indulgence, including an extension. With this, Twitter has lost its safe harbor protection, and stands exposed to action under the (Indian Penal Code) for any third-party unlawful content,” a government source cited by the Times of India said.

On Tuesday, Twitter said it has appointed an interim chief compliance officer although it has not yet shared details of the appointment with the IT Ministry.

A company spokesperson told NDTV that Twitter “continues to make every effort” to comply with the guidelines and that they are keeping the IT Ministry informed about their progress. Twitter had earlier expressed concern over the new IT rules which it described as “the potential threat to freedom of expression," according to NDTV.