Legal experts comment on the verdict announced yesterday on the matter of the employee of Twitter India Maheshwari’s petition submitted after UP police named him on an FIR about the Ghaziabad attack video case.
The Karnataka Supreme Court ruling overturning the Uttar Pradesh Police’s Sec 41A message to Twitter Manish Maheshwari and Judge G Narender’s observations has been viewed by legal experts and researchers as “monumental” and of “enormous importance” designated. But why?
Why it matters: This decision and the remarks of the Karnataka Supreme Court may have an impact on other cases recorded against Twitter India and Maheshwari as the court has stated that Twitter India is an independent entity and has no control over the content on its site Platform. One of the cases filed by Madhya Pradesh Police against Maheshwari and Twitter India concerns a misrepresentation of the Indian map on the microblogging platform.
MediaNama spoke to a number of legal experts who suggested that while the ruling will not be binding on other high courts in the country and are free to issue their own instructions, the detailed nature of the Karnataka High Court has some “persuasive value.” “Who can help the courts to make decisions. Some also suggested that UP police might choose to go to the Supreme Court to appeal this order.
background: Before we get into further details, however, here’s a look at what the case was about. Last month, the Karnataka Supreme Court heard a petition from Maheshwari to exonerate the Uttar Pradesh police, who delivered two notices to the police of content uploaded to Twitter. The content in question is a viral video of an elderly Muslim man who was attacked on June 5 in the Loni district of Ghaziabad. While many on social media said the attack was communal in nature, Ghaziabad police claimed it was not and asked Twitter to remove such content. Loni Border Police then registered an FIR against some people who uploaded the video, as well as Twitter Inc and Twitter India, for allegedly failing to remove the content despite a “clarification” issued by Ghaziabad Police. In this regard, under Section 160 of the CRPC and Section 41A, respectively, the police sent two messages to Manish Maheshwari on Twitter asking him to appear in person at the police station for investigative purposes.
The order dictated by Judge G. Narender stated that Section 41A could not be used as a “means of harassment” and alleged that UP police failed to comply with obligations to issue a notice under the same section. Judge Narender added: “There is no doubt that the very attacked notice itself threatens acts and the violation of freedom, which is a fundamental right”. These are the instructions and observations that Narender made in the course of the pronouncement of the verdict –
- Appealing to a Section 41A notice to Maheshwari (which gives the police the power to arrest him if they believe he is not cooperating) was outside of their jurisdiction as Maheshwari failed to comply with the requirements necessary to use the notice . The judge considered the notice to be mala fide
- The notification according to § 41 A is repealed and is to be treated as a notification according to § 160 CRPC, and the instruction instructs the UP police to record Maheshwari’s statements via video call if necessary.
- Regarding the UP Police: “It is not only the failure to secure information from authorities (Twitter master data), but also the threatening silence of the police regarding the merits of the matter. The UP police tried to persuade the court to reject the petition on grounds of jurisdiction. “
- Justice Narender also noted that Twitter India is an independent company controlled by Ireland-based Twitter International Company and Twitter Netherlands. He also said that Twitter India has no control over the content on the social media platform. According to the court, the content is controlled by Twitter Inc., based in the USA.
Directly contradicting claims that Twitter has lost its safe haven
Regarding the implications, Torsha Sarkar, an attorney and policy officer at the Center for Internet and Society, said the verdict was a “direct antithesis” to claims by the Indian government that Twitter has lost its “safe haven”. Twitter had been in a dispute with the Indian government over the rules since May 26th, the last date the information technology rules (Broker Policy and Digital Code of Ethics) were complied with.
Aside from the fact that it is a judicial decision whether or not an intermediary will keep or lose its safe haven, when we consider that if Twitter India now has no control whatsoever over the content posted on the platform, then any content failure the due date can due diligence really be counted towards the violation of legal immunity? In other words, if Twitter India has no control over content, can it be subsequently asked to take legal action against that content? The immediate answer under the Karnataka HC decision could be no, but there could also be the possibility that future court rulings could distinguish this case based on its facts – Torsha Sarkar, Policy Officer, Center for Internet and Society
A Brief Timeline of the Tussle Between Twitter and the Indian Government –
- May 25, 2021: It is the last date to comply with the IT rules 2021. Twitter has yet to appoint a complaints officer, Chief Compliance Officer, as required by the rules.
- May 28, 2021: Twitter’s failure to comply with the rules is addressed in a petition filed against Twitter by lawyer Amit Acharya at the Delhi Supreme Court. During the process, Twitter announced that Dharmendra Chatur has appointed an interim complaints officer.
- June 5, 2021: The Indian government soon criticizes Twitter for this appointment, pointing out that Chatur is not a direct employee of Twitter, but an advocate. The government also advises that the address of the node contact (which must be provided under IT rules 2021) is that of a law firm, not Twitter.
- June 16, 2021: Several reports, citing unnamed government sources, state that Twitter has lost its intermediary status for failure to comply with IT rules.
- June 28, 2021: Chatur, the interim complainant, resigns from his position. Reports of the loss of Safe Harbor provisions on Twitter are confirmed by the Government of India in an affidavit filed in the Delhi High Court.
- July 11, 2021: Twitter appoints one interim appeal Officer and Interim Chief Compliance Officer. It also publishes a regular compliance report in accordance with the IT rules 2021.
The judgment may prove to be a review and balancing of the powers of law enforcement agencies
“This ruling by the Karnataka Supreme Court may be of tremendous importance as it could shape the course of law enforcement proceedings in the future when handling cases related to illegal or allegedly illegal content on social media. Should this decide on the procedural course to be followed, this would be a fair scrutiny and balance of law enforcement powers issue a notice to individuals such as the managing directors of the Indian affiliates of the social media platform, ”said Amay Jain, Associate at Victoriam Legalis. (Emphasis provided)
Throughout the proceedings, Maheshwari’s attorney CV Nagesh had argued that the UP police did not qualify for a Sec 41A notice. The requirements are “against whom a reasoned complaint has been made or credible information has been received or there is reasonable suspicion”. Judge G Narender had also questioned UP Police attorney Prasanna Kumar on this matter when she issued a restraining order on June 24 that prevented UP Police from taking coercive measures against Maheshwari who was ultimately suppressed Malafide, stating, that it should be used as an “arm twisting” technique.
These are the other police proceedings against Maheshwari –
What options does the UP Policy have?
Siddharth Jain, partner at PSL Advocates and Solicitors, stated that the particular ruling could benefit other high courts in ruling similar cases, saying the UP government can appeal it in the Supreme Court. “Given the challenges involved, the government of Uttar Pradesh, among others, would definitely challenge the ruling in the Supreme Court and the law would ultimately only be decided by the Apex Court,” added Jain.
Similarly, Rishi Anand, partner at DSK Legal, pointed out, “It is important to note that the Information Technology Act of 2000 gives law enforcement agencies and courts extra-territorial jurisdiction by empowering them to prosecute offenses related to a computer, computer network in India, and therefore a subpoena on Twitter Inc. cannot be ignored. “
During the trial, Maheshwari’s attorney had stated that Twitter India is not an intermediary under Section 79 of the IT Act and is therefore not required to comply with the IT Act 2000 and Information Technology Regulations 2021 in response to a request from Judge Narender whether Twitter India how Twitter Inc, “was able to remove content from the platform”. In the same hearing, UP Police attorney Prasanna Kumar had alleged that the FIR, which was registered against Twitter India and Twitter Inc for allegedly failing to remove the video from the platform, was related to IT Rules 2021 . This was likely the first time a government agency had linked the lawsuit filed against Twitter India and Twitter Inc. to the social media company’s non-compliance with IT Rules 2021; the last date for compliance with the IT rules was May 26th.
Update, July 24th, 6:38 p.m.: The law firm PSL Advocates and Solicitors was incorrectly named at PSL Advocates and Sailors