Indian government moves to hold Twitter liable for user-generated content

Twitter is facing a move by the government of India to potentially hold it liable for user-generated content, with Indian officials claiming that the social media company has failed to adhere to the country's new technology laws. 

The Indian Ministry of Electronics and Information Technology said in a court filing on Monday that Twitter has failed to comply with New Delhi's IT Rules 2021 law, which seeks in part to "empower ordinary users of social media platforms and [over-the-top] platforms with a mechanism for redressal and timely resolution of their grievance."

The Indian government argued in a filing that Twitter has failed to follow those rules and that "failure to observe the IT Rules 2021 results in provisions of Section 79(1) of the IT Act, 2000 not being applicable to such an intermediary." 

Section 79(1) of the IT Act, 2000 directs that "no person providing any service as a network service provider shall be liable ... for any third party information or data made available by him," so long as the provider "poves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention."

The company did not respond to an inquiry seeking comment on the Indian government's move, which is pending approval by the High Court of Delhi.

The loss of liability protection in India — the world's second-largest Internet market by user base — could serve as a major loss for Twitter if the company should suddenly become responsible for the user-generated content posted on its servers there.  

Eric Goldman, a professor at Santa Clara University School of Law and a codirector of the university's High Tech Law Institute, said he doesn't see "how Twitter can function in that environment. It's simply not possible."

"The question is, what does Twitter do?" he said via phone on Tuesday. "I think there's really three main options. One is that Twitter digs in its heels and forces the Indian government to pursue the matter in court, and gambles that the courts will be sympathetic. Two, Twitter says this is intolerable and they're going to exit the market."

"The third is that Twitter could change who has the ability to post in India so that it is sufficiently restrictive to the point that Twitter feels like those people aren't likely to create liability," he continued. "Imagine Twitter gives the power to post only to corporate brands and says, 'Coca Cola, say whatever you want, you're not going to cross the Indian government.'

"Twitter would become the playground for brands and maybe politicians and celebrities, and the rest of us get tossed overboard."

Twitter will be still able to operate in India if the government succeeds, but "the only question is how much it will cost," said Vice Dean of Villanova University's Charles Widger School of Law Michael Risch, whose research focuses in part on Internet law.

"Much will depend on India's background laws — for defamation and the like," said Risch. "The more permissive those laws are, the more likely people will complain. But the bigger issue will be cost of administration."

Social media companies — and Internet content generators more broadly — have generally enjoyed what's known as a liability shield, which exempts them from liability for posts or remarks generated by users on their platforms. 

In the U.S., those protections were thrust to the forefront of the political debate last year when then-President Donald Trump proposed repealing liability shields for social media companies in the U.S.

Those shields have long been enshrined in Section 230 of the Communications Decency Act, a brief provision which holds that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The "benefits of Section 230 are not really the immunity per se, as most platforms would already not be liable or could easily take material down," said Risch. "The benefits are not having to deal with the cost of all the requests to take material down."

Twitter "has tools to do this (which it uses for IP related complaints, not covered by Section 230)," he added, "but verifying non-IP related complaints is much more difficult. What may result is de facto censorship on the platform."

Trump and conservatives argued last year that companies like Facebook, Twitter and others were practicing viewpoint discrimination on their platforms with heavy-handed censorship of right-leaning content, thus crossing the line from mere "providers" into editors and publishers. 

Goldman said it was disappointing that "the U.S. government isn't standing up for Twitter" in India. 

"Maybe they are behind the scenes, but I haven't heard any public declarations of support," he said. "To me this isn't only a matter of free speech and human rights, it's also a matter of foreign governments targeting U.S. companies for differential treatment." 

"Our governments should be standing behind U.S. companies and disciplining countries that treat them unfairly," he added.