The Delhi High Court expressed its displeasure on Wednesday (July, 28,2021), with Twitter Inc's appointment of a "contingent worker" as chief compliance officer (CCO) and stated that the microblogging platform was in violation of the new Information Technology (IT) rules.
While the rules required the appointment of a key managerial person or a senior employee as CCO, Twitter disclosed in its affidavit that it had appointed a "contingent worker" via a third party contractor.
“In his affidavit, he (CCO) states unequivocally that he is not an employee. This directly contradicts the rule. There must be some seriousness behind the rule. Some sanctity must be accorded,” the court remarked.
The court also expressed reservations about Twitter's use of the term "contingent worker," particularly since the identity of the third-party contractor was unknown.
“What exactly is a contingent worker? I'm not sure what it would imply. I'm having trouble with the word. Then there's the third-party contractor! What exactly is this? I am dissatisfied with the affidavit,” the judge said on Twitter.
The court ruled that Twitter's affidavit was unacceptably vague and ordered the company to strictly adhere to the rules.
“File a stronger affidavit. This is simply not acceptable. I'm giving you a long rope, but don't expect the court to keep doing it indefinitely. Disclose the name of the third-party contractor and explain the contingent,” the court said, giving Twitter a week to file the new affidavit.
The court also ordered Twitter to disclose not only all of the details pertaining to the appointment of the CCO and the Resident Grievance Officer (RGO), but also to explain why a Nodal Contact Person had not yet been appointed and when the position would be filled.
The central government notified the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules, 2021 in February, with the goal of regulating the dissemination and publication of content in cyberspace, including social media platforms.
In response to the previous order, Twitter Inc filed an affidavit in court, informing the court that it has appointed an Indian resident as CCO, effective July 6, 2021.
Senior advocate Sajan Poovayya, representing Twitter, stated that while the CCO was a contingent worker hired through a third-party contractor, he agreed to perform all functions and responsibilities outlined in the IT Rules.
The term "contingent worker" was used because of the "structure of employment" and the fact that Twitter Inc did not have a liaison office in India, according to Poovayya, who also stated that the platform would no longer appoint "interim" officers to the positions.
It was reiterated that the process of establishing a liaison office is still in progress.
Poovayya stated that the person appointed as CCO would also serve as RGO beginning July 7, 2021.
According to the affidavit, while one Vinay Prakash was appointed to the two positions as a contingent worker through a third party contractor, Twitter “has publicly posted a job announcement” for CCO and RGO as a “direct employee” and that it “will make a good faith effort to make an offer of employment to a qualified candidate who is resident in India to fill this position in 8 weeks.”
Poovayya also claimed that the Nodal Contact Person had yet to be appointed and asked the court for two weeks to do so.
“I'm not sure what you want to do. If you want to (follow the rules), do it wholeheartedly,” said the judge.
The Central government's Additional Solicitor General, Chetan Sharma, argued that Twitter was acting in "blatant violation of the rules" because the CCO must be an employee of the social media intermediary and not a contingent worker.
“Months have passed. You can't have it all. We are holding our hands because we are in front of your lordship,” ASG Sharma explained.
Advocate G Tushar Rao, appearing on behalf of petitioner-lawyer Amit Acharya, objected to the appointment of the same person as CCO and RGO, arguing that the roles were distinct and that the same person could not hold both positions.
The rules, according to Poovayya, do not prohibit the appointment of the same person as CCO and GRO.
In his petition, Acharya claimed that he learned about Twitter's alleged noncompliance with IT Rules when he attempted to file a complaint about a couple of tweets.
Twice before, on July 6 , and 8, 2021, the court granted Twitter time to file an affidavit demonstrating compliance with the IT Rules.
According to the Centre's affidavit, Twitter failed to comply with India's new IT Rules, which could result in it losing the immunity granted by the IT Act.
The case would be heard again on August 6, 2021.