Big Tech in India has a new recruiting challenge: Hire for jobs that carry the risk of a prison sentence

July 23, 2021, 3:23 AM UTC

Some of the world’s top social media and messaging companies are wrestling with a unique challenge in the key growth market of India: how to hire for jobs that carry the risk of a prison sentence.

India’s latest Information Technology Rules, introduced in February, put digital platforms like Twitter and Facebook under increased government oversight and require publishers, Internet firms, and messaging companies with more than 5 million users to appoint executives to comply with the law aimed at content regulation.

Each digital platform must appoint three executives resident in India, one for compliance, one for grievances, and a so-called nodal officer, who coordinates with enforcement agencies on complaints about content. Their jobs are to field legal requests to remove content that the Indian public or law enforcement deems ‘objectionable’ and act within 36 hours to either take down the content or challenge the request in court.

Failure to meet the 36-hour deadline can subject the compliance officer to a criminal lawsuit—brought on charges of obstruction of investigation or as an abettor of crime, depending on the nature of violation—and can invite liability claims against the two other officers as well, lawyers say.

It turns out, demand is low for roles that comes with such high personal risk.

“Organizations are confused on how to hire for this position,” says Bhavani Seetharaman, research associate at Hasgeek, which runs an online community for tech professionals and has submitted recommendations to the government on the new law.

Finding candidates with the right legal and technical credentials, plus the skills to engage with the government, is proving to be a tall order. Even harder is finding someone willing to assume the personal risk of facing a criminal lawsuit over noncompliance, she says.

Twitter appointed a grievance officer on May 29, but he quit his post on June 21, according to an industry executive who did not want to be identified.

The cost of leaving the positions vacant is hefty. The Indian government said in a court filing on July 6 that Twitter had forfeited its legal immunity related to user-generated content because it missed a deadline to appoint the new executives. That penalty means the state can bring criminal charges against Twitter for any Tweet on the digital platform, even though the content is user-generated. (A court has yet to rule on the constitutionality of the government’s stance.)  

Five days after the court filing, Twitter said that it had appointed a second grievance officer named Vinay Prakash, its first chief compliance officer, and would soon appoint a nodal officer. 

The Indian government has not disclosed which tech companies have fully complied with the new executive appointments. Google and Facebook told Fortune they had appointed all three executives, but industry officials say many firms—multinationals and India-based ones alike—are still struggling to make the hires.

When asked about the difficulty of complying with the new IT rules, a Facebook spokesman said the company continues to discuss a “few of the issues that need more engagement with the government,” and Google said the industry is waiting to “get clarity around a few provisions” in the rules. 

The Indian government requires companies to share the names of their grievance officers publicly. The names of the other two officers only have to be shared with the government. 

The imposition of personal criminal liability on the executives “makes it significantly more difficult for companies to identify people for these roles, undermining the ease of compliance,” said Jacob Gullish, digital economy committee lead at the U.S. India Business Council.

“We continue to urge that the Indian government reconsider this aspect of the rules,” he said. Most countries do not launch criminal lawsuits against employees and middle management; if any individual is held liable for illegal content it is usually top executives, lawyers say.

The implementation of the law is likely to be met with legal challenges, even after the appointment of executives, industry executives say.

What qualifies as an ‘objectionable’ post is unclear under the rules, which means companies will need to sift through possibly hundreds of thousands of content-removal requests per week.

“Imagine you don’t have control over the volume of grievances and you have a 36-hour deadline, then what is the feasibility [of taking action]?” Seetharaman said.

Indian government officials argue the rules are needed to quell misinformation and hate speech and to give users more power to flag objectionable posts, but the new law coincides with an effort by the administration of Prime Minister Narendra Modi to quash online dissent. In February, the Indian government demanded that Twitter take down user posts related to large-scale farmer protests against the government. 

User-generated content that could raise red flags is often published from outside of India. Before the IT rules took effect, the Indian government would have to request content removal through the Mutual Legal Assistance Treaty that has 42 members including the U.S., U.K., Hong Kong and Singapore. The government frames the new law as adding more teeth to law enforcement, in part, because it foregoes that lengthy process, officials say.

But the law—enacted without a parliamentary debate or consultation with the industry—is introducing a new process of enormous scope that is almost impossible for companies to manage.

“Any police officer from anywhere in the country can begin an investigation” into objectionable content, said Prashant Mara, managing partner at BTG Legal. Dealing with so many content complaints at once “will make life difficult for the resident officers” and lead them to quit, he said. 

Lawyers said that the country’s courts are unlikely to allow the rules in their current form for long.

“In my opinion, the very nature of excesses in the rules suggests that our courts will water down significantly on account of unconstitutionality,” said Nikhil Narendran, partner at law firm Trilegal. “It is only a question of when they will do it and [by] how much.”

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