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The Strange Case of Invocation of “Due Process” in Defense of a Tweet

Updated: Dec 18, 2021

Authored by Ayush Mishra, an alumnus of NALSAR University of Law and practicing Advocate at the Allahabad High Court.

The labelling of a tweet as “manipulated media” by Twitter has garnered excessive attention in the political domain. However, the incident, underneath all the political quagmire, poses a few fundamental questions that may sensitively alter our understanding of due process, free speech and horizontal applicability of fundamental rights.

On May 18, BJP Chief Spokesperson tweeted screenshots of a purported “toolkit” that, in his opinion, was being employed by the opposition to malign the image of the government. In retaliation, the Congress party formally complained to twitter about the fake toolkit and filed a FIR against numerous BJP leaders for fraud and forgery. Subsequently, Twitter, in line with its synthetic and manipulated media policy, labelled the original tweet as “manipulated media” after conducting its internal inquiries. Curiously enough, the Union government responded to this action of twitter by communicating its objection stating, as per PTI report, that such actions by twitter amount to “a clear overreach, which is totally unwarranted” and that “such a tag by twitter appears to be pre-judged, prejudiced and a deliberate attempt to color the investigation by local law enforcement agency”. On this pretext, the government asked Twitter to remove the “manipulated media” tag from the spokesperson’s tweet.

The primary objection of the Union Government appears to be stemming from the fact that while a domestic enquiry by law enforcement agency in underway, how can Twitter “unilaterally” draw a conclusion in this matter and “arbitrarily” tag the tweet as ‘manipulated media”. This is the first time we are witnessing a scenario in which the Union government is using lack of “due process” as a defense against actions on a tweet. Prima facie, it has two important implications, Firstly, on previous occasions it has been witnessed that the Union government, through notifications issued under the Information Technology Act, 2000, has asked twitter to take down tweets in connection with agitation against farm laws and criticisms of the government on its covid-19 handling. However, even in those cases, there were instances of filing of FIRs and initiation of domestic inquiries by law enforcement agencies. Therefore, the government, in asking twitter to take down tweets before the completion of inquiries by enforcement agencies, itself acted in flagrant violation of “due process” of law. The freedom of speech and expression is a fundamental right and the duty to follow due process while curtailing a fundamental right is far more on the elected government compared to a private corporation. Consequently, this action of the government in asking Twitter to follow “due process” begs the question that, is the Centre hinting towards a more stringent horizontal enforcement (enforcement against a private entity) of fundamental rights compared to the traditionally allowed vertical enforcement (enforcement against the elected government) of fundamental rights? If it is indeed the intention, can a new legislative bill can be expected soon that would empower the citizens to seek enforcement of fundamental rights against corporation? The answers to these questions, if the negative, would only suggest that the present actions of the government, in congruence with its tendency of executive highhandedness, is just an attempt at establishing executive supremacy and settling political scores through it, rather than empowering the citizens against the supposed “arbitrary” actions of private corporations.

Secondly, the Information Technology Act, 2000 bestows upon the government the power to direct the intermediary (in this case Twitter) to block access by the public to the online posts to which the Central Government objects to. However, no act of the parliament, empowers the Government to be able to stop an intermediary from conducting internal inquiries or force them to unblock a post that it has, after its internal scrutiny, deemed violative of the platform’s guidelines and policies. The internal rules of twitter coexist with the laws of this country and whereas the former cannot overshadow the latter, the vice-versa also cannot be constitutionally sustained. Therefore, the act of the government, seems to be rooted more in political desperation rather than constitutional legislative enactments.

Furthermore, the stated objections of the government also reportedly flagged the issue that such a labelling act by Twitter dilutes its credibility and may bring in question the “intermediary” status of the platform. Interestingly, the IT Act, 2000 exempts the intermediaries from liability arising out of third-party data. Consequently, if the government extinguishes Twitter’s status as an “intermediary”. It can be made liable for posts by third parties. However, the IT Act provides for only two situations wherein the exemptions provided under Section 79 can be withdrawn: firstly, if the intermediary conspires, abets, aids or induces an unlawful act and secondly, if the intermediary refuses to disable online access to posts which the government objects to. Certainly, conducting an internal inquiry and labelling a post as “manipulated media” based on governing internal rules does not find mention in the Act as a precondition for withdrawal of intermediary status. Therefore, the line of argument that labelling of such posts amounts to adopting editorial role and hence makes the intermediary liable, appears to be an empty threat devoid of any statutory backing.

Additionally, the “intermediary” status of Twitter can only be questioned if it fails to comply with a duly passed order/notification by the government under the IT Act. Since, in the present case, the notification via which the government has asked twitter to drop the “manipulated media” tag does not derive its authority from any legislation or even an ordinance, the same could not be stated to be a “duly passed legal notification”, the non-compliance of which could endanger the intermediary status. The argument that Twitter must follow all orders from the government if it wishes to conduct business in India is more in the nature of political cacophony than a reasoned economic/governance policy. The orders which Twitter must follow, should necessarily derive their authority from a statute, unlike this particular notification that attempts to sneak in an executive whim under the garb of protecting free speech. Contrast this with the new IT rules demanding, inter alia, the appointment of grievance officers. These rules, although on the surface may appear to be a politically motivated crackdown on liberal views in print and digital media, are actually rooted in the IT Act itself (although its legality remains yet to be adjudicated). Hence, till a constitutional court strikes down these new IT rules notification on grounds of fundamental right violations, Twitter cannot choose not to register its compliance. If it does so, before the courts have stuck the notification down, it would lead to Twitter “not following a duly passed notification”. However, in the present case, since the “take manipulated media tag down” notice does not emanate from a statue, it does not form a part of the law of the land and consequently, its non-compliance entails no legal ramification.

It is also pertinent to note at this juncture that one of the pre-conditions of securing the exemption from liability by the intermediaries is, under section 79(2)(c), its obligation to observe due diligence in discharging its duties. The prompt fact-checking and swift action on a formal complaint by the aggrieved organization, if anything, is testament to Twitter’s commitment under the Indian law to follow due diligence while publishing something that has been, upon internal inquiry and fact-checking, found to be doctored and manipulative. Therefore, contrary to what has been stated by the government, the non-exercise of this due-diligence would have been a ground of withdrawal of intermediary status under the act.

Moreover, it is difficult to understand how an internal departmental inquiry by Twitter can have any influence over an investigative inquiry by law enforcement agencies. Any comment or stand of an intermediary is neither an admissible evidence nor can form the bedrock of any police inquiry. Therefore, the argument that such adjudication by Twitter will prejudice police inquiry speaks more about the lax status of inquiries by police authorities rather than the prejudice of the intermediary.

However, on a positive note, if such selective application of due process in relinquished in favor of a consistent stance of upholding citizens’ freedom of speech and expression, such an approach by the government may, in due course of time, propel the ushering of a new era of laws that may empower the citizens to seek horizontal enforcement of fundamental rights against violations by private corporations.

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