Twitter is creating a smokescreen of victimhood to keep evading Indian law and stay unaccountable

Responding to a Delhi Police notice seeking cooperation from Twitter in investigating the ‘Congress toolkit’ controversy, the social media firm on Thursday stated: “We will continue to be strictly guided by principles of transparency, a commitment to empowering every voice on the service, and protecting freedom of expression and privacy under the rule of law."

I spilt my coffee. Almost. Twitter claiming to be the custodian of free speech is the Taliban championing women’s rights in Afghanistan, or the Communist Party of China protecting the rights of Uyghur Muslims. It’s black comedy.

At issue are two things. One, Twitter’s move to interfere and disrupt India’s domestic politics and two, its refusal to comply with India’s new ‘Intermediary Guidelines’, referred to as IT rules, designed to regulate big tech, seek legal and public accountability from the platforms and ensure addressing of public grievances. Twitter is not only holding out against the regulations but also doing so on grounds that are decidedly dodgy.

The California-based company, which cannot even ensure that its own employees of the conservative persuasion are free to express their views within its premises, whose application of the values of ‘transparency’, ‘empowerment’ and commitment to freedom of expression is inconsistent, opaque and cynically opportunistic, is swearing by principles that it habitually violates.

The aim is clear. The transnational tech giant considers itself a ‘super sovereign’ that goes by its own rules and seeks to reserve the right to operate as the arbiter and adjudicator of FoE in India, challenging the writ of a sovereign republic. Twitter is hardly alone in this behaviour but its actions in India has been most brazen compared to the conduct of its peers. Google, for instance, has indicated that it will comply with local laws. The full statement posted by Twitter through a series of tweets starting 1.04PM on 27 May is worth reading.

Twitter is deeply committed to the people of India. Our service has proven vital for the public conversation and a source of support for people during the pandemic. https://t.co/9oDbVM6IjM

To keep our service available, we will strive to comply with applicable law in India.

— Twitter Public Policy (@Policy) May 27, 2021

“Twitter is deeply committed to the people of India. Our service has proven vital for public conversation and a source of support for people during the pandemic. To keep our service available, we will strive to comply with applicable law in India. But, just as we do around the world, we will continue to be strictly guided by principles of transparency, a commitment to empowering every voice on the service, and protecting freedom of expression and privacy under the rule of law. Right now, we are concerned by recent events regarding our employees in India and the potential threat to freedom of expression for the people we serve. We, alongside many in civil society in India and around the world, have concerns with regards to the use of intimidation tactics by the police in response to enforcement of our global Terms of Service, as well as with core elements of the new IT rules. We plan to advocate for changes to elements of these regulations that inhibit free, open public conversation. We will continue our constructive dialogue with the Indian government and believe it is critical to adopt a collaborative approach. It is the collective responsibility of elected officials, industry, and civil society to safeguard the interests of the public.”

“We’re particularly concerned about the requirement to make an individual (the compliance officer) criminally liable for content on the platform, the requirements for proactive monitoring, and the blanket authority to seek information about our customers. This represents dangerous overreach that is inconsistent with open, democratic principles.”

Shorn of arrogance, defiance, obfuscations, half-truths, lies and grandiosity, Twitter’s argument is primarily moral. That is a problem because Twitter does not have any moral authority. It is part of a US-based cohort of big tech that harvests user data for profits and promotes censorship at home while seeking carte blanche abroad — often acting in defiance of the laws of the land where it operates.

This moral argument, however, is a smokescreen. Nobody expects morality, fairness or even consistency from Twitter, a for-profit, private company that is accountable only to its board of directors — a sum total of 10 individuals sitting in the US. It is free to inconsistently apply its so-called “principles” and has no obligation to ensure “fairness” or uphold “freedom of expression” on its platform. As a private entity, it may also operate in accord with its ideological agenda — it is pointless to charge Twitter with hypocrisy if it discriminates against conservative voices.

However, even as a private company, Twitter cannot do whatever it likes on its own platform. As author and investor Harsh Madhusudan pointed out during a Clubhouse chat on this issue, a restaurant in the US cannot seek immunity from the law if it refuses to admit African-Americans within its premises. Even a multinational private firm must operate within the cultural milieu of the land where it is located, obey local laws and pay taxes.

What Twitter cannot do, therefore, is behave as an autonomous body within India and seek to evade rules and regulations of the Indian legal system by citing allegiance to ‘universal, higher principles’ of “transparency”, “empowerment”, “freedom of expression” or “privacy”. That is just convenient evasion of accountability.

In order to claim safe harbour protection from any criminal liability in India, Twitter must be a signatory to the Government of India’s new guidelines and accede to the fact that “law making and policy formulations is the sole prerogative of the sovereign and Twitter is just a social media platform and it has no locus in dictating what should India’s legal policy framework should be,” as the IT ministry laid out in a statement.

Compliance with the ‘Rule 4(2) of the Intermediary Guidelines’ signifies that the tech giant, along with its peers Facebook and Google must “create means to track the first originator of posts, tweets and texts within the country.” As ‘social media intermediaries’, these firms should also appoint “Indian citizens in compliance roles (chief compliance officer, nodal officer and grievance redressal officer), create automated processes for taking down pornography, set up mechanisms to respond to complaints, and remove offending content within 36 hours of receiving a legal order,” as Livemint notes in a report.

It is implied by the government in its communique released on 26 May — the day the new guidelines came into effect after the three-month period given to these social media intermediaries for compliance — that failure to abide by these guidelines will strip the big tech firms of their ‘safe harbour protection’ provided to them under Section 79 of India’s IT Act and make them vulnerable to criminal proceedings or being sued for posts, comments and text messages by third parties using these platforms.

It is reasonable on the part of the government, which is accountable to its electorate, to press these big tech firms to appoint resident officers for grievance and legal redressal. As the government points out, the rules “empower the ordinary users who become victims of defamation, morphed images, sexual abuse and the whole range of other abusive content in blatant violation of law, to seek redress.”

From the actions of Twitter and WhatsApp (that has taken the Indian government to court), it is evident that the social media conglomerates are unwilling to accept the guidelines and want to interfere in India’s “law-making and justice-delivery processes”.

Twitter’s entire statement is a smorgasbord of condescension and victimhood that creates a smokescreen of morality play and virtue-signalling to smother the debate over its defiance and resist compliance with the guidelines. Twitter also dog whistles on “safety of its employees” and “intimidation tactics”, all classic tropes, to attract the attention of fellow travellers in western media that, it hopes, will further its ideological propaganda.

When a company repeatedly refuses to appoint a nodal officer to engage with the state, and its regional head claims to be only a “sales authority”, Delhi Police had few options but to visit its premises to hand over the notice, requesting it to cooperate with the toolkit probe. When Twitter has interfered in the political debate and tagged some posts as “manipulated media”, it must be in possession of incriminating evidence that led it to such interference. As the investigation authority of the ongoing case, Delhi Police is well within its rights to seek Twitter’s cooperation. In fact, not doing so would have been a dereliction of duty on the part of the Delhi Police.

As the Delhi Police statement observes, “the Managing Director of TCIPL was merely served a notice, not as an accused but to participate in the inquiry as Twitter claims to have been acquainted with certain facts”. The law enforcement authority has accused Twitter of “contrived fear-mongering” that is “unfounded and misplaced.”

It should concern us that a foreign company that has a large user base in India, does data mining and data harvesting to track the behavioural patterns and choices of its users, conducts business and earns money, refuses to comply with the law of the land, resorts to obfuscation, evasive manoeuvres and cliched tropes to avoid engagement with the state, and when pulled up for it, cries victim to escape culpability.

Twitter doesn’t need to worry about freedom of expression or the right to privacy of the Indian public. Subject to reasonable restrictions, free speech is a fundamental right guaranteed by the Indian Constitution, as is the right to privacy. But Twitter would do well to rid itself of the vainglorious assumption that a US-based social media firm is in a position to negotiate “constructive dialogue” and “collaborative approach” with the government of a sovereign, democratic republic to “safeguard interests of the public” who had voted that government to power to look after its interests in the first place. Instead, it should just comply with Indian laws and keep doing business, not “strive to comply”.

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Sreemoy Talukdar