In an affidavit to the Delhi High Court, the Centre has informed that Twitter has lost its “safe harbour immunity” under the Information Technology Act due to non-compliance of the new social media rules, Live Law reported on Monday. This is the first occasion that the Centre has gone on record to state the development.

Twitter will be stripped of the protection social media websites have against legal proceedings for unlawful content posted by users if the court accepts the Centre’s submission.

In its affidavit to the court, the Ministry of Electronics and Information Technology said that Twitter failed to comply fully with Rules 3 and 4 of the new regulations introduced by the Centre in February. The Rules 3 and 4 deal with grievance redressal mechanism and other compliance measures. Social media websites are not eligible for immunity as intermediaries without complying with these rules, the Centre said.

It added that the social media websites were given a “sufficient period of three months” for complying with the rules, which came into effect on May 26.

The Centre filed the affidavit in relation to a petition by a social media user, who had alleged that he found certain “defamatory and false” posts while scrolling through the platform on May 26. The petitioner, Amit Acharya, said that when he tried to file a complaint, he could not find the resident grievance redressal officer’s details on Twitter’s website.

Appointment of a resident grievance redressal officer is one of the regulations under Rule 4 of the new social media rules. Citing this provision, the plea sought action against Twitter.

In response to the petition, Twitter told the Delhi High Court last week that it will soon appoint an interim resident grievance officer in India.

In an affidavit, the company said that it had appointed an officer to the post but he “withdrew his candidature” on June 21. After this, the company appointed its Global Legal Policy Director Jeremy Kessel as a grievance officer for India. However, this is not in line with the new IT rules, which mandate that all nodal officials should be based in India.

The social media giant also mentioned that as an intermediary, the tweets were not something that it could “be arbiter of”.

What does losing immunity mean?

Experts dealing with laws related to the Internet have suggested that the new rules do not contain any power or process for grant or revocation of an intermediary status of social media platforms or other websites.

In a series of tweets last month, digital advocacy group Internet Freedom Foundation said that the concerns about the “intermediary status” arise from Rule 7 of the new regulations which states that Section 79 of the Information Technology Act, 2000, will not be applicable to intermediaries who fail to comply with the rules.

Section 79, in turn, mandates that intermediaries like Twitter are immune from liability for punishment if they comply with requests from the courts and public authorities to take down posts from users.

The Internet rights body also pointed out that the new IT rules have been challenged in the courts. Further, even if the rules are upheld as legal and constitutional, it will be up to the courts, and not the government, to decide whether companies like Twitter are intermediaries, the Internet Freedom Foundation said.

“There is no immediate penalty which flows from non-compliance beyond loss of immunity determined by courts on evidence and legal submissions,” it added.

Twitter vs Centre on new IT rules

The new information technology rules are a sweeping set of regulations – which were announced in February and became effective in May – framed to regulate social media companies, streaming and digital news content, virtually bringing them, for the first time, under the ambit of government supervision.

The rules require these platforms to appoint chief compliance officers, in order to make sure the rules are followed, nodal officers, to coordinate with law enforcement agencies, and grievance officers. It also requires social media platforms with over 50 lakh users to help in identifying the “originator” of messages upon the government’s request.

On June 5, the Centre had sent a final notice to Twitter to comply with the rules. It asked the company to appoint India-based nodal officers, warning that the failure to do so will lead to “unintended consequences”.

Twitter was last month named in a case related to tweets about the assault of an elderly Muslim man in Uttar Pradesh’s Ghaziabad district. Union Information Technology Minister Ravi Shankar Prasad had said that the social media platform was named in the First Information Report because it failed to comply with the new rules.