The National Commission for Protection of Child Rights (NCPCR) has promised action against Twitter based on a complaint by the Kerala People’s Front, a legal advocacy group. The complaint, a copy whereof has been accessed by the Organiser, alleges that the rules of Twitter regarding activation and deactivation of accounts permit children 13 years of age or older to sign up on Twitter. The complaint highlights that despite minor children being allowed on the platform, Twitter permits adult content, except within live video or in profile header or list banner images. This means that adult videos or images or gifs can be twitted and viewed. The complaint explains that even depiction of simulated sexual acts, which is included in the definition of adult content, is permissible in tweets.
The complaint states that Section 67 of the Information Technology Act, 2000 makes publishing or transmitting obscene materials in electronic form a punishable offence. Section 67A of the said Act makes publishing or transmitting of material containing the sexually explicit act, etc. a more serious offence punishable with imprisonment up to five years and a fine up to rupees ten lakhs for the first conviction. However, Section 79 of the Act exempts an intermediary from liability for any third party data hosted by it, provided it observes due diligence while discharging its duties under the Act. Section 79(3) states that the exemption is not available to the intermediary if despite receiving actual knowledge that its resources are being used to commit an unlawful act, it fails to expeditiously remove or disable access to that material.
In the case of Twitter, it is consciously and expressly permitting adult content, despite knowing that minor children could have access to it. The complaint also notes that as per Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, every significant social media intermediary shall have rules and regulations informing its users not to upload information that is obscene or pornographic or harmful to children. As per Rule 7 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, if an intermediary fails to observe the rules, the provisions of sub-section (1) of section 79 of the Act will not be applicable to such intermediary and the intermediary shall be liable for punishment under any law.
Twitter is a significant social media intermediary as per the 2021 Rules. The complainant has alleged that huge of pornographic content is available on Twitter. It is pointed out in the complaint that Pornhub, a pornographic website that has been blocked in India, operates a verified twitter handle and that the ban on porn is being circumvented through Twitter. The complaint highlights that other significant social media intermediaries like Facebook and Tumblr have policies against nudity and sexually suggestive contents. The complainant argues that it is a commercial decision of Twitter not to modify its rules in order to attract users seeking porn, even at the risk of exposing children to harmful contents.
The Chairman of NCPCR has acknowledged the complaint and has written to the IT Ministry seeking a ban on children using Twitter unless it is deemed safe. Twitter has started showing signs of backing down from a confrontation with the government by appointing a resident Grievance Officer for India as required under the 2021 Rules. However, Union Minister Ravi Shankar Prasad has said that Twitter is required to appoint an employee of the company to the post and not a lawyer, as they have now done. The Delhi High Court has issued notice to Twitter on a plea alleging non-compliance of the 2021 Rules. It remains to be seen how long Twitter can evade complying with the laws of India, given the multipronged attacks it is facing.
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