New Delhi: Social media giant Twitter, in a letter filed before the Delhi High Court as part of an affidavit, has stated that it “globally reinstated” Rahul Gandhi’s tweet revealing the identity of a child who was allegedly raped and murdered last year. But the tweet has been withheld in India, it said.
In a letter dated 13 August and originally sent to the National Commission of Protection of Child Rights (NCPCR), Twitter said Gandhi’s tweet was reinstated globally owing to “supporting material”, which included evidence that the minor child’s parents had approved the image being published on the platform. However, it withheld the tweet in India due to the request of the NCPCR and to follow local laws, it said.
Twitter’s letter was part of its affidavit filed on 29 November 2021 before the Delhi HC, in response to a pending Public Interest Litigation filed by RTI activist Makarand Suresh Mhadelekar in August 2021.
The petitioner had submitted that the tweet violated Indian laws that prohibit disclosure of the victim’s identity, and demanded the filing of an FIR against Rahul Gandhi under the relevant sections of POCSO and Juvenile Justice Act.
Also read: NCPCR seeks action against Rahul Gandhi’s Instagram handle for violating Juvenile Justice Act
What was the issue?
In August 2021, the news of a nine-year-old Dalit girl allegedly raped, murdered and forcibly cremated by the accused in the Delhi Cantonment made headlines, and Congress leader Gandhi had tweeted a picture of his meeting with the victim’s parents on 4 August, demanding justice for the victim.
The NCPCR had issued a notice to Twitter immediately, demanding “appropriate action” against the account and removal of the post from the platform. The NCPCR, in its letter, had cited the violation of provisions of the Juvenile Justice Act, the POCSO Act, and the Indian Penal Code, which prohibit disclosure of the identity of a child who is a victim of sexual abuse. It said the actions violated decisions of the Supreme Court and the Bombay High Court, which prohibited such disclosure.
Though the tweet did not reveal the name of the child victim, the image of the parents (or any other information that can lead to identification) itself qualifies, under the law, as ‘disclosure’ of the identity of the victim.
Following this, Twitter took down the post on 6 August and temporarily locked Rahul Gandhi’s account.
In an email from Twitter to the NCPCR, accessed by ThePrint, the social media platform said it had removed the post for violation of the website’s ‘terms of service’.
Twitter stated that the post was initially taken down “on the basis of potential risk of harm to the parents of the minor child over the visibility of their identity in the image”.
In subsequent correspondence, Twitter communicated that the post containing the image was reinstated globally, on the evidence that the child’s parents had approved of it.
However, Twitter still withheld the tweet in India as a response to NCPCR’s request and the company’s assessment of Indian laws.
“We are, however, in response to your legal request, withholding the reported content in India under our assessment of the applicable local law(s), which we do acknowledge disallows disclosure of such information, including the referencing of parents to the victim,” Twitter said in a communication to the NCPCR.
Parents had ‘no objection’
Media reports had said that the victim’s parents had “no objection” to the image being shared on the platform. It is this ‘approval’ (by the parents) that Twitter had cited while reinstating the tweet globally, except in India.
It is worthwhile to note that provisions cited by the NCPCR in its letter to Twitter do not provide for such ‘approval’ as an exception to the bar placed on sharing such information. Moreover, in the Nipun Saxena Case, the Supreme Court had expressly barred such approval as a valid defence.
The apex court had noted that the victim’s name or identity “should not be disclosed even under the authorisation of the next of kin”, unless there were circumstances justifying such disclosure, which was to be decided by a competent authority.
The SC had said that issues dealing with victims of heinous offences need to be dealt with sensitivity. Taking note of the ‘Nirbhaya’ case, Justice Deepak Gupta had said in 2018 that the victim’s identity need not be revealed “to arouse public opinion or sentiment” or “mobilise public opinion”.
‘May not violate spirit of the provision’
Senior advocate Geeta Luthra told ThePrint that where the victim or the next of kin consents to her identity being revealed, it may not be against the spirit of the provision.
“The intention of Section 228A of the IPC (about protection of identity of victims of certain crimes) being incorporated by an amendment by the legislature is an attempt to redress and assuage the apprehension of victims in reporting the crime. If the victim in a society like India seeks to maintain dignity, the identity may be protected,” Luthra said.
“However, if the victim gives consent for disclosure of the identity, it may not violate the privacy of the victim and may not be contrary to the spirit of the provision, but would be contrary to the letter of the provision, which is to ensure that any victims (not to be named) should not be apprehensive of filing complaints for fear of disclosure of their identity,” she added.
‘Intermediary, protected under IT Act’: Twitter
Raven Norris, Twitter’s senior counsel, stated in the affidavit that the platform is an “intermediary” and cannot be held liable for the objectionable tweets.
It was submitted that Twitter “does not publish, review or approve” the posts on the platform. The process is almost instantaneous, it said, with the author of the tweet being the “publisher”.
Twitter pleaded protection under Section 79 (1) of the recently amended IT Act, which exempts intermediaries from liability for the ‘third party content’ that it hosts.
It additionally relied on the Supreme Court’s judgment in a 2015 case where the court recognised that an intermediary cannot be held liable unless there is “actual knowledge” of the post through an order of the court or appropriate agency.
This is not the first time that the social media giant has been hauled up, with the Delhi HC in an earlier case ordering the platform in October 2021 to remove objectionable posts on Hindu deities and to “respect sentiments of the general public”.
(Edited by Saikat Niyogi)
Also read: Rape victims being treated as ‘untouchables’, don’t disclose identities: SC