A new Grievance Appellate Committee (GAC) to appeal Grievance Officers’ decisions, requirements for intermediaries to respect citizens’ ‘constitutional’ rights, and ensuring user compliance with their policies, were some of the new additions proposed to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 by the Ministry of Electronics and Information Technology (MeitY).
Released on 1st June for public consultation, the amendment was withdrawn by MeitY today, MediaNama has confirmed. The policy may be released once again next week, it is learnt.
“As Internet access continues to rapidly expand in India, new issues related to the above commitments also keep emerging. To deal with such new and emerging issues, as well as to address the gaps identified, it is proposed to further update primarily the part-II of the IT Rules, 2021 and the consequential updation of Part-I,” MeitY said in its notice issued along with the draft.
To be sure, while part 1 of the Rules deals with definitions, part 2 lays out due diligence and grievance redressal initiatives required of the intermediaries
The highly controversial IT Rules – challenged in nineteen separate cases -were enacted in May 2021. Subsequently multiple parts of it were struck down or put on hold by courts – mostly related to provisions for news media organisations- although platforms also found themselves in a soup. Shortly after the rules were enacted, five industry bodies reportedly also wrote to MeitY asking for more clarity on the rules. Now, nearly a year later, MeitY had proposed an amendment to the rules.
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Key changes proposed to the Rules
- Shorter timeline in dealing with user grievances:
An intermediary would have to acknowledge a complaint received from a user by its Grievance Officer (GO) within 24 hours, specifically when the complaints are about suspension, removal, blocking of any user or account, or if it is a complaint from a user for removal of information or a link that is defamatory, infringes copyrights, pornographic, etc, the amendment said.
The amendment also proposed that intermediaries respond to requests for removal within 72 hours. However, it added that intermediaries can develop safeguards to prevent misuse of such provisions.
2021 Rules: The 2021 Rules simply say that an intermediary would have to acknowledge a complaint sent to the GO related to a violation of the IT Rules or any other issue within 24 hours and dispose of it within a period of 15 days from the date of its receipt.
- Opportunity to dispute actions taken by platforms:
The draft proposed that a user should be provided an opportunity to dispute any action taken by an intermediary, including asking for reinstatement of any content that is taken down. It further said that this should be decided upon by a platform’s Resident Grievance Officer as per the above mentioned timeline (72 hours) for dealing with user complaints
2021 Rules: The Rules simply say that such a dispute will be decided on ‘within a reasonable amount of time’.
- Provisions for a Grievance Appellate Committee
“Any person aggrieved by an order made by the Grievance Officer under clause (a) and clause (b) of sub-rule (2) of rule 3 may prefer an appeal to the Grievance Appellate Committee having jurisdiction in the matter within a period of 30 days of receipt of communication from the Grievance Officer,” the amendment proposed.
According to the amendment, the Central Government would have constituted one or more Grievance Appellate Committees. These would comprise of:
- “A Chairperson
- Such other Members, as the Central Government may, by notification in the Official Gazette, appoint”
A user could appeal a GO’s order to the Grievance Appellate Committee within 30 days of receipt of a GO’s order, and the Grievance Appellate Committee would have to ‘endeavour’ to resolve it within another 30 days of receiving the appeal from the user, the amendment said.
“Every order passed by the GAC shall be complied with by the concerned Intermediary,” the amendment said.
The setting up of the Grievance Appellate Committee however, did not preclude challenging the GO’s order in a court of law. “The Grievance Appellate Committee is set up to provide an alternative to a user to file an appeal against the decision of the Grievance Officer rather than directly going to the court of law,” the amendment said.
2021 Rules: The current rules do not make a provision for such a Grievance Appellate Committee.
- Expectations of transparency, respecting constitutional rights
The amendment proposed adding the following clauses to the rules:
“intermediary shall take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency.”
“The intermediary shall respect the rights accorded to the citizens under the Constitution of India,”
2021 Rules: The 2021 Rules do not mention these.
Similarly, it added a proviso to another clause in the rules:
2021 Rules: The 2021 Rules ask that intermediaries publish the aforementioned policies and agreements prominently on their website, mobile application or both. Due diligence requirements also ask them to inform the users not about not posting certain content which have been outlined in the IT Rules, as defamatory, obscene, pornographic, infringing on copyrights, etc.
The introduction of a Grievance Appellate Committee is an interesting move from the Indian government for more reasons than one:
Firstly, it seems to draw from an approach that Facebook has taken, by instituting an oversight board that users can appeal to: while the Oversight Board has recommendatory powers, and Facebook may choose not to accept its decision, it does offer an avenue for users to appeal such a decision. The Grievance Appellate Committee essentially does not give social media platforms that option, but it adds a level of regulation beyond the grievance officer.
Secondly, in terms of the power equation between platforms and the Indian government, it adds a layer of control that the Indian government can use to regulate content on platforms. Remember that orders to take down content under Section 69 of the IT Act are not public. What kind of accountability will the government have here?
Thirdly, when the IT Rules 2021 were notified, it was noticeable that while streaming services and online news businesses have a three tier system: level one, to handle grievances within the organisation, level two via a self regulatory body, and level three with a government run committee, which allowed the government to overrule any decisions taken by the other two levels, social media platforms were only doing self regulation via a grievance officer. While there isn’t a mandate in these now withdrawn draft rules for social media platforms to create a self regulatory body, the government has still brought in something similar to level three.
Lets see what the next version of these rules indicate.
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