What stops the Government of India from initiating prosecution against Twitter, when it has committed a criminal offence which requires the offenders to be prosecuted as per law? If the boundary of India would have been changed in the map on paper or the internet in general, it would have attracted a criminal offence whereas the impact of changing geo-location is more serious as it would not only cause more impact on the residents of the area as well as on our soldiers fighting on border but also for the entire world community considering the vast traffic on Twitter. If it would have been done by some other company, the law would have taken its course in registration of the case & prosecution in the court of law already.
There is no reason for the Union Government to write a letter showing disappointment or asking for explanation when there is Rule of Law empowering the issuance of a warrant and putting the burden on Twitter to explain or otherwise face punishment as per law. Immunity from prosecution is for the content generated by third-parties and not for content generated by the intermediaries themselves, and, in the present case, geo-location has been generated on the basis of the content derived from Twitter’s server itself.
Social media’s narrative power has become a lethal weapon and has been used systematically & maliciously to influence the social & democratic values, ideologies, etc. And, more often than not, these intermediaries escape the clutches of law, by shielding themselves behind the freedom of speech & expression. The concept of providing immunity to the intermediaries started when the size of intermediaries was quite small. However, now, their virtual size has grown more than the size of any country practically, and these intermediaries are able to create their own boundaries beyond the jurisdiction of any state. Moreover, using the power derived from the virtual world, these intermediaries are now also attempting to change physical borders, against which strictest measures available in the law should be pursued.
The mis-information campaigns run by China have increasingly reflected its inherent malicious intent in all strategic actions - whether it may be its handling of the pandemic, the Indo-China rift, the US-China issue, etc. An in-depth probe is, thus, required to ascertain whether the act of Twitter in changing India’s geo-location could be a part of a bigger conspiracy with China. Another, much bigger obstacle in initiating proper investigation here is non availability of the server of Twitter in India. Had Twitter’s servers been located and available in India, the investigation agencies would have collected the evidence on its own and there would not have been any need to seek the explanation. This is especially so because, in fact, in criminal cases, particularly, the criminal acts impacting sovereignty & integrity of the State, the mens rea is irrelevant and it is the act, which speaks for itself.
Non availability of servers in India will hamper any investigation undertaken by the investigation agencies and will also allow Twitter to take any alibi which suits it. Another important aspect to investigate is why the provisions of the Personal Data Protection Bill, 2018 have been tweaked in the 2019 Bill to exclude the issue of data localisation which would have required these intermediaries to maintain their servers in India and would have allowed the investigation agencies to collect the necessary evidence in a more timely and systematic manner. The manipulation at the core and heart of the government could be a part of a bigger conspiracy to help these social media websites to escape from the clutches of the prosecution agencies in India. The need to ascertain this and face it is a challenge is something we have already faced in Cambridge Analytica case, Pegasus case etc. where these intermediaries escaped punishment despite admission of violating Indian Laws.
Surprisingly, our Law Minister is engaging in tweeting, instead of taking legal action, when there is clearly no reason to plead especially in light of a threat to the sovereignty & integrity of the State. This essentially amounts to surrendering to anti-national forces. Why should we fear these intermediaries? Are we gaining something illegally? If not, why are we giving them benefits of exemption to which they are not entitled? Are these intermediaries, through their monetary & narrative power, able to influence our media, government & other stakeholders and able to create shield bypassing prosecution despite committing a series of offences? These are only some of the questions that we must seek to answer swiftly and effectively, so as to protect larger national interest.
It’s right time to bring structural reforms to the regulatory mechanism of intermediaries and to change the notice and take down approach in the new emerging virtual world where the intermediaries could threaten the integrity & sovereignty of any state. President Donald Trump executive order targeting legal protection to twitter , is in fact, need of the hour though the order has been criticised as it was not having proper flavour but the regulatory mechanism of the intermediaries need a drastic change in the new virtually dominated world.