Retweets ARE endorsements: 280 characters can be worth a lot of trouble

Journalist and ALTNews co-founder Mohammed Zubair was arrested by the Delhi Police for a tweet he posted in 2018. Zubair has 575.4k followers on Twitter and his organisation, ALTNews, works on fact-checking stories and clearing up misinformation.

Lesson: If you are a well-known account with a whole bunch of followers, and your daily job is to point out errors in stories doing the rounds online, ones that can cause a lot of trouble when read by the right (wrong) people, the spotlight is on you.

Some distance away from Zubair’s arrest, two men murdered a tailor called Kanhaiya Lal in Udaipur for sharing a post on social media in support of ex-BJP spokesperson Nupur Sharma.

Taken together, the takeaways then are simple and scary: social media is no longer the place where one can air their views and opinions without the fear of repercussions. What might follow could range from some negligible backlash to threats online and offline, and if you are that unlucky - death.

You are responsible for what you share online. Or as Communications strategy consultant Karthik Srinivasan put it in his blog - “Your retweets ARE endorsements”.

Srinivasan’s blog takes off from what Delhi Police’s Deputy Commissioner of Police KPS Malhotra recently said.

“If you endorse a view on social media, it becomes your view. Retweeting & saying I don't know, doesn't stand here. Responsibility is yours. Time does not matter, you only have to re-tweet & it becomes new. Police action was on basis of when matter came to our cognizance,” said Malhotra, who is a part of the Intelligence Fusion and Strategic Operations (IFSO) unit under Delhi Police, speaking about Zubair’s arrest.

After this, what happens to all those users on Twitter whose bios proclaim that “RTs are not endorsements”?

What Srinivasan points out in his blog is that Malhotra is right, at least a part of what he said is. Srinivasan writes: "The part he may be incorrect about is regarding “time does not matter” and said that legally, time does matter as the Code of Criminal Procedure (CrPC) contains Section 468 that mentions something called a ‘Period of limitation’. Zubair’s tweet from 2018 got him arrested in 2022, and this does not fit into this ‘Period of limitation’, something Srinivasan hopes will be brought up by Zubair’s lawyer in the case.

As Srinivasan writes, “Oh, so ‘RTs are not endorsements’ as a disclaimer on the bio doesn’t hold, is it? Yes, it doesn’t. At all. To make it clearer: Retweets ARE endorsements.”

RTs: Where do they come from and where do they go to get you into trouble

To understand why retweets are indeed endorsements, Srinivasan has looked into where this disclaimer originated from. The disclaimer can be traced back to 2009 when both Patrick LaForge (current editor of the Breaking News Hub at the New York Times) and Brian Stetler (currently CNN’s chief media correspondent), added this phrase to their bio.

What LaForge and Stetler were talking about when they claimed that RTs are not endorsements they were not just talking about tweets but also about the links they were sharing on the platform that were not from their employer organisations. “Links and retweets of non-NYT content are not endorsements. Caveat lector” - read LaForge’s bio while Stetler’s read - “Retweets & links are not endorsements”.

The ‘retweet’ function on Twitter was just gaining traction at that point. “But the specific reason for the phrase’s need, at that point, was probably to do with the manual retweeting technique of copying-pasting the original tweet and adding an RT in the beginning. Given the already limited character count (just 140 characters, till Twitter updated it to 280, in November 2017), it was difficult to add any other context to a manual RT. Threads were also non-existent back then,” Srinivasan writes.

So this disclaimer was more a way to address a “tool-level constraint that forced a lack of context or addition”. Twitter got down to work on this, introducing the retweet button first and then the “retweet with comment” feature.

The main idea of retweeting or RTing something was to make it reach a wider audience. But over time what happened was that people no longer had clarity about why someone was sharing something.

“To make something available to a larger population was the intent basically, but over time people were not clear about why someone was RTing something. Why are YOU sharing this with the world? What is your take on this? If there is nothing that I can see, people are then free to make their own assumptions. Ok, so you agree and so you shared, or you disagree and you shared to mock it. And that’s what is unclear,” Srinivasan pointed out while speaking to Business Today.

“The obvious way out is not to use the default RT, because that is ambiguous, and to use manual RT and quote RT so that you are able to add your point of view to explain why you are sharing this post or link,” Srinivasan said adding. “A ‘no comment’ or ‘without comment’ is ambiguous too.”

He also added that the same applies to emojis, emoticons, etc, if they are used while RTing something. Emojis and emoticons can also be misunderstood and misconstrued and how one understands an emoji differs from person to person, there are multiple connotations based on who you ask. While some are quite common and mean one single thing like a smiley face or a sad face but others like a laugh-out-loud emoji can mean different things based on context, so the danger of something going horribly wrong looms large here too.

To this, Srinivasan added something that perhaps all of us need to pay attention to - “There is no legal validity of the disclaimer at all. You cannot just say ‘RTs are not endorsements’ and get away with it. In case you are in trouble, you are responsible for your timeline. You need to curate it as clean as possible, that is your responsibility,” he said.

Timing is everything

Internet Freedom Foundation’s Apar Gupta points out that tweets, retweets, and quote tweets arise from a specific context including who the speaker is and what is the intent and the timing. “For any kind of criminal prosecution by itself, a retweet will need to meet a very, very high threshold of it having some form of criminal intent to itself be an act of criminality,” Gupta said.

“By itself, a retweet cannot, in all circumstances, be seen as a mere endorsement,” he pointed out.

Gupta says that when a person says that their RTs are not endorsements, they are trying to make their intent clear, that they are not necessarily agreeing with the principal statement of the content they are broadcasting. Thus, it is understandable why one might use the disclaimer.

While Gupta agrees that quote tweets might work better in any context, he says that people tweet or retweet with very different motivations and why they decide to share something is not always perfect and clear making it easier to RT than quote tweet.

Having said that, Gupta also mentioned the ‘Period of Limitation’ and said that there is a timeline for civil wrongs and petty offences under the Indian penal code and this law of limitations also applies to continuing offences.

“The republication, often for speech-based offences is seen as an exception to limitations which would then enable people to file legal claims. But republication, and whether retweets by a third party constitutes as republication by the author is a little questionable in my view,” Gupta told Business Today.

Since there is no further action on the author’s part, hence the liability of something they posted being retweeted will not come on them, Gupta pointed out.

The law does not care about RTs

Srinivasan’s point about this disclaimer not holding any ground legally is clarified better by Dr Pavan Duggal, a cyber law expert and Supreme Court advocate.

“The law is blind on retweeting. The law does not really recognise the legal concept of retweeting. The law is only concerned about publishing, transmitting, as well as causing to be published or transmitted. The moment you retweet, you not just publish, but you cause to be published, this specific information to your followers,” Duggal said.

“Similarly, when you retweet, you not just transmit, you also cause to be transmitted, like the electronic records in your ecosystem. So, once you do that, the ramifications under the law automatically get attracted. Because you are in the same capacity and in the same shoes as the original author who created the tweet. The law then takes you to be equal accused or equal co-conspirator,” he explained adding that “mindless retweeting might open you up to a Pandora’s box of legal exposure”.

Speaking of whether these legal ramifications need to be made clear, Duggal said that there is no need to distinguish between tweets and retweets. “If you write that my retweets are not endorsements, it is something like saying that you murder someone and then say that this is not really a murder, because it is not murder according to me,” Duggal said calling out the efficacy of the disclaimer.

“The acts of tweeting and retweeting are covered under the Information Technology Act. If they are obscene they automatically become an offence under Section 67 of the IT Act. If they are defamatory or false, they become offences under Section 66A(b) of the IT Act. So, you can always be hauled up as a co-accused for something you have retweeted. Your disclaimer has no significance in the eyes of law,” he added.

“The law applies when you publish, transmit, share, post, forward, or republish any content that’s in violation with the law, anything that is defamatory or obscene, distasteful or blackmailing or threatening in nature. The law does not expect you to republish or share the same language. If you do, then the law is going to put you on the same dock as the original author,” Duggal explained.

To put it simply, if you retweet something that is potentially obscene, or offensive, or defamatory, you might be subjected to the same treatment as the original creator of that content. And no, no disclaimer is going to save you.

“The ignorance of the law is no excuse at all,” Duggal said. He predicts that as Covid-19 closes, we are going to see more such litigation coming in. “India is a very critical society and the threshold of filing litigation is only a few hundred rupees, so people should now be prepared to become victims to all kinds of legal actions, lawsuits,” he added.

What about free speech?

If we can be held accountable for anything we’ve said that might offend anyone, is free speech in the country a sham?

The Indian Constitution mentions freedom of speech and expression as a fundamental right that is guaranteed to all citizens. However, the Constitution does not guarantee “an absolute individual right to freedom of expression” and instead “envisages reasonable restrictions that may be placed on this right by law”.

The laws that restrict free speech in this country include the laws that punish sedition, hate speech, and defamation, and all of these derive their legitimacy from Article 19(2) of the Indian Constitution.

While Article 19(1) says that all citizens have the right to freedom of speech and expression, Article 19(2) adds that nothing in clause (1) shall “affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence,”.

What does this mean?

It means that while freedom of speech and expression is a basic right in the country, it is not absolute. So, if you tweet or retweet something that can affect the country’s integrity, security of the state, the relations between India and another foreign ally, public order, decency, or morality, that can be considered illegal and measures can be taken against it.

Glass houses and glass floors: How do we save ourselves?

For Gupta, the current incidents, the past few months if not the past few years, have cast a tremendous chilling effect. “There has been an increasing level of criminalisation of online speech which is also sometimes directed against people who are dissenters, or have views which are critical of political and public officials,” Gupta said.

“There is also an acute rise in hate speech, threats, doxing, and other forms of behaviour that are making people feel more and more insecure. All of this is creating a chilling effect online. People are feeling a sense of fear and anxiety in voicing their opinions and views online, particularly about religion and politics,” he added.

How do we save ourselves, then?

“The only way out is that one needs to make everything, unambiguously clear. Use words to clearly explain what you mean, particularly for the more provocative content that you might share. The more provocative tweets you are likely to share, the more likely it is that you might get into trouble. For the garden variety tweets, you can use emojis or nothing at all,” Srinivasan said.

“The point is to be aware that what you say online has much larger ramifications and people are getting legally burned. Be aware and make clear what your intent is,” he added.

While it is not practically feasible for anyone to go back and delete everything potentially controversial anyone might have shared, Srinivasan indicates that a clean-up of sorts might be helpful for famous people whose tweets are searched for more often as compared to normal users. “For individuals, unless there is a categorical effort by a group to go after them, there is no need to really panic and go on a timeline cleaning spree,” he added.

Srinivasan’s final advice is - “Never share anything on Twitter, Instagram, Facebook, or anything online in public that you would be ashamed to share with your parents, family, or children.”

Duggal suggests that while showing your agreement or disagreement with a certain tweet, it is best to paste things within inverted commas so that you are actually quoting a person and not sharing the original tweet. “This will automatically distinguish and put you at an arm’s length from the original author,” he explained.

“Even if you say that you disagree with it, sharing the original tweet is transmitting it. You can say I disagree with this person without mentioning the content of the tweet. The moment you mention the content you are in the same capacity as the original author,” Duggal added.

“It’s better to be safe than sorry,” Duggal advises adding that it is not a bad idea to go back and delete controversial tweets and treat the current happenings as a learning curve.

“If there are some instances of your language, publication, or content that are in violation of the law, or can be, it is good to pull it down or remove it because it can become ammunition in the hands of law enforcement agencies or complainants and initiate criminal prosecutions,” he added.