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Unable to appreciate why Twitter is appointing officers in interim: Delhi High Court

The order was delivered in a court hearing of a petition that had been filed against Twitter for not complying with the new IT Rules. 

In a written order, Delhi High Court expressed its displeasure about the appointment of interim officers such as Chief Compliance Officer, despite the Information Technology Rules, 2021 mandating that significant social media intermediaries (SSMIs) such as Twitter have to make permanent appointments to these positions.

“This Court is unable to appreciate as to why the note dated 08.07.2021, and the e-mail attached therein sent by the Deputy General Counsel and Vice President (Legal) of the respondent no.2, talks about the interim appointment of the three officers required to be appointed in compliance of Rule 4(1)(a), (b) & (c) of the 2021 IT Rules, i.e., the Chief Compliance Officer, Nodal Contact Person, Resident Grievance Officer, when the statutory provisions mandates permanent appointments. In any case, since no affidavit has been filed by the respondent no.2, it is deemed appropriate, as prayed for, to grant it two more weeks to file the same,” the order given by Justice Rekha Palli read.

This court case, Amit Acharya vs Twitter, was filed by the petitioner in May, alleging non-compliance to the IT Rules 2021. The Union government had earlier said that May 25 was the last date to adhere to the rules. Acharya in his petition had said that Twitter’s grievance officer was a US-based national, which was in violation of the rules that mandated that the grievance redressal officer and the chief compliance officer should be based in India.

Down south, Twitter India’s Manish Maheshwari had filed a petition at the Karnataka High Court seeking relief from the two notices he was served regarding the UP Police’s investigation into the Ghaziabad assault video case. The court will announce its order in the case on Monday.

Meanwhile, Palli in her written order, while granting Twitter time to file an affidavit to show compliance to the IT Rules, made it clear that “there is no interim protection granted to the said respondent (Twitter)”. “It will therefore be open for the respondent no 1. to take action against the respondent no.2 in accordance with the 2021 IT Rules in case it is found in breach thereof,” the court order read.

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Other important mentions in the order

  • Twitter is in the process of setting up a permanent liaison office in India. For now, it has set up a physical office on 4th Floor, The Estate, 121 Dickenson Road, Bengaluru, Karnataka
  • The affidavit that Twitter has to file should be notarised in the United States of America. Affidavits of persons who have been, or are in the process of being appointed in compliance with the rules should also be filed.

This order comes a day after Justice Palli pulled up Twitter for not appointing interim officers in accordance with the Rules. Last week, during a proceeding, Palli observed, “If Twitter thinks they can take as long as they want to take in our country, I will not permit that.” She added that the company should have appointed someone in the two-week period between the resignation of Dharmendra Chatur, a lawyer who briefly served as the interim resident grievance officer for Twitter and the hearing. The justice had also rapped the company’s advocate, Sajan Poovayya, for not making it clear that Chatur’s appointment was interim. Poovayya responded that he was only acting on instructions from his client.

Interim officers because of tax and financial issues: Twitter counsel

Earlier during the hearing of the proceedings on July 8, Twitter’s counsel Sajan Poovayya argued in court that the company was appointing officers under the IT Rules as “interim” because of tax and financial issues, as the company does not yet have a liaison office in India.

Twitter argued that its interim appointees are undertaking all the tasks required under the IT Act and that it will appoint officers required under the IT Rules within eight months. However, Union government’s counsel objected to the appointment’s saying the rules did not give Twitter the discretion to make interim appointments and that it needed to be fully compliant. Poovayya responded that in case of non-compliance, the government could send a notice to Twitter and that the company would respond.

Compliance report on July 11

Before the proceedings on July 8, Twitter had filed a note wherein they declared that the platform will be publishing their compliance report on July 11 as required under Rule 4(d) of the IT Rules for Significant Social Media Intermediaries (who have more than 50 lakh members) by Sunday. Facebook, Google, and Koo have already put out their first monthly reports under this provision.

What is a significant social media intermediary? According to Rule 4(1) of the IT Rules, a “significant social media intermediary”, is a  platform having more than 5 million registered users in India. The rules mandate that SSMIs have to, within 3 months of the date of notification of the rules, have to establish a three-tier system for observing due diligence, comprising of a Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer, all residing in India.

What do the Rules require social media platforms to do?

Among other things, the new IT Rules, which were notified on February 25 and went into effect on May 25, require messaging apps with over 5 million registered users in India to:

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Appoint key managerial roles: Social media intermediaries must appoint a chief compliance officer, nodal contact person, and resident grievance officer, all of whom are Indian residents and employees of the platform. While WhatsApp and Telegram both complied with this requirement a few days after it went into effect, Signal and Apple are yet to do so.

Enable traceability: Messaging apps must also enable the identification of the first originator of a message. No major messaging platform has complied with this provision yet. WhatsApp has sued the Indian government over this, arguing that the traceability mandate will require the platform to break end-to-end encryption for all its users, which will violate the users’ right to privacy and freedom of speech and expression, and is beyond the scope of the parent Act.

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Among other subjects, I cover the increasing usage of emerging technologies, especially for surveillance in India

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