[Communal Hashtags] Twitter Tells Telangana HC It Is Not Amenable To Writ Jurisdiction In India, Seeks Safe Harbour Protection Under IT Act

The social media company has stated that it is incorporated under the laws of the United States of America and is not a 'State' within the meaning of Article 12 of the Indian Constitution. Further, it is not performing a public function and is not amenable to writ jurisdiction. It submitted,

"the Answering Respondent does not perform any 'public function', contrary to what is alleged in the Petition. The nature of relationship between the Answering Respondent and the users on its Platform is contractual in nature. Thus, even if the Answering Respondent provides a service to the public in a wider sense, there is no public law element involved in the enforcement of a private contract of service."

Thus, it is contended that the PIL filed by Advocate Khaja Aijazuddin is not maintainable.

The Telangana High Court had issued notice to the Company in June this year asking it to file a counter affidavit in the matter within four weeks, and explain why such tweets had not been removed.

When the matter was taken up in July, the Court was informed by the DGP, Hyderabad that Twitter had removed all objectionable content, including communal hashtags. However, the Court remarked that that mere removal of the impugned content is "not sufficient" and Twitter must enter appearance.

[Communal Hashtags] 'Mere Removal Of Content Not Sufficient': Telangana HC Asks Twitter To Enter Appearance; File Counter Affidavit [Read Order]

Thus, the Company has filed a counter affidavit before the High Court and the matter is listed for hearing today.

On merits, the Twitter has stated that it is merely an intermediary and cannot be made liable for the content posted by its users. It said,

"the nature of the services provided by the Answering Respondent is such that it qualifies as an intermediary as defined under Section 2(1)(w) of the IT Act. The Answering Respondent in operating the Platform merely receives, stores, or transmits certain information over the internet on behalf of its users, who are the authors and publishers of such information."

It added,

"Electronic records are attributable to the 'originator' under the information Technology Act, 2000…The attribution of liability for any electronic record is on the 'originator' of any such electronic record and cannot be fastened onto an intermediary. The IT Act has recognized 'originator'(s) and 'intermediary'(ies) as distinct and separately defined them as two mutually exclusive classes under Sections 2(1)(za) and 2(1)(w)."

Twitter has further taken the defence of "Safe Harbour" under Section 79 of the IT Act and it is submitted that as long as it does not (i) initiate the transmission, (ii) select the receivers of transmission, or (iii) select or modify the information contained in the transmission, which it claims that it does not, it cannot be held liable.

It is also contended that it did not have "actual knowledge" of the objectionable content, as there was neither any court order nor any Govt notification to take down the impugned content. Nevertheless, it is submitted, that "adequate steps for policy violation" were taken by the Company against the impugned hashtags.

Lastly, it is submitted that the plea, in effect seeks to create a "regime of prophylactic, pre-publication prior restraint" on content posted by users, and the same would contravene the scheme for blocking of content under the IT Act and multiple decisions of the Supreme Court.