Will the three-member grievance appellate committees to be set up to address complaints against intermediaries under the Information Technology Act, 2000, actually “empower users”, as Information Technology Minister Ashwini Vaishnaw promised?
Technology policy experts are not so sure. They believe that the committees announced by the Ministry of Electronics and Information Technology on October 28 give the government sweeping powers of censorship on the internet.
“This amendment has given the government god-mode status when it comes to content on social media a year-and-a-half away from the Lok Sabha elections,” said Nikhil Pahwa, founder of MediaNama, a website that covers technology policy.
The amendment applies to intermediaries like social media platforms, e-commerce websites like Amazon, search engines like Google, dating apps like Bumble, and websites hosting services like GoDaddy and Amazon Web Services.
Will this amendment help end users?
The committees are essentially a government censorship body for social media that will make bureaucrats arbiters of online free speech, claimed the Internet Freedom Foundation, an organisation that works on free speech, digital surveillance and net neutrality.
The amendment, it said, will “unarguably cause injury to the digital rights of every Indian social media user”.
Krishnesh Bapat, associate litigation counsel at the Internet Freedom Foundation, said that the provisions effectively permit a government body to censor the content posted by users even when Section 69A of the Information Technology Act, 2000, does not permit the government to do so.
This section relates to the government’s powers to block public access to content in the interest of national security.
“These amendments will adversely affect the discourse and plurality of opinion on social media platforms,” said Bapat.
Technology policy scholar Vasudev Devadasan, at the Centre for Communication Governance at the National Law School in Delhi, agreed that the committees will provide recourse for users frustrated with the content moderation failures of social media platforms.
But he questioned the ability of the committees to handle cases promptly. “Judicial and quasi-judicial bodies in India have a poor record of dealing with disputes in a timely manner,” he said.
The committees will only help a few social media users who have the knowledge and resources to pursue an appeal, Devadasan added.
Will it affect journalism?
While news websites do not fall under the list of intermediaries affected by this amendment, the platforms that host their websites do. Web-hosting services act like landlords for websites on the internet.
If someone tries to take down an item on a news website via a complaint to a grievance officer of a web hosting company and are unhappy with the resolution, they can appeal to the committee and get it taken down.
In August 2021, the Bombay High Court stayed two provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which required news publishers on the internet and publishers of online curated content to comply with a Code of Ethics and prescribed a three-tier grievance redressal mechanism headed by the government.
The court said that the rules violated freedom of speech and expression by permitting a government body to censor the content posted by digital news platforms.
Pahwa of Medianama warned that, “IT Rules, 2021 gave the government power to take down articles on news websites using Section 69A. This gives government censorship power. Now, the same power will be given to users, who even if ignored by the social media platforms, can still appeal to the GAC.”
He added: “While we might not see much activity now, it is situations like the farmer protests, the CAA-NRC [Citizenship Amendment Act-National Register of Citizens] protests, or during elections that we’ll see both these provisions have an impact on speech and journalism.”
The committee and how it will work
Every grievance appellate committee will consist of a chairperson and two full-time members appointed by the Union government, one of whom will be an official and two will be independent.
If a user’s post is taken down by a social media platform, they must first appeal that decision to the platform’s grievance officer. If the user is not satisfied with the decision, they could challenge it before a grievance appellate committee within 30 days.
Users will be able to file complaints for the grievance appellate committees using an online portal.
The committee will have 30 days to decide whether the social media platform’s decision was correct. If needed, these committees can seek help from those who have experience or can be considered experts in that specific topic.
If the committee decides that the social media platform’s decision was unjust, it will ask the platform to reverse its decision, bring back the deleted post and publish a compliance report on its platform.
‘Accountability theatre’
The committees will face many challenges, experts say.
To begin with, social media platforms deal with tens of thousands of content moderation requests every day. Even if a small fraction of these decisions are challenged before the committees, it will be a significant challenge to hear these appeals, experts note.
In addition, the government has been criticised for its lack of transparency on how the grievance appellate committees will function.
Important questions remain unanswered, such as who can become a committee member, what guidelines they will follow, what qualifications the government is looking for, whether the members will be employees of the Union government or the information technology ministry or independent contractors, and how they will be paid.
Internet Freedom Foundation policy director Prateek Waghre said that the government’s approach to content moderation is neither suitable nor capable of scaling up to meet the many challenges in the current information ecosystem.
“It relies on decisions taken about individual pieces of content to attempt to address systemic issues that are caused by broader societal-level problems to produce ‘accountability theatre’,” he contended.
“The aggregation of individual decisions won’t be able to address underlying problems since they are neither repeatable nor broadly applicable, given the complexities involved.”
The three-member committees will have to deal with a diverse set of challenges such as finding a balance between newsworthiness of a topic and harm it could cause to certain parties, understanding the socio-political context and understanding multilingual content in various formats.
Social media platforms have struggled with content moderation for years despite having significant resources. In fact, some of the technological solutions, like the deployment of Artificial Intelligence, have caused further problems of discrimination and bias.
The office of Union Minister of State for Electronics and Information Technology Rajeev Chandrasekhar did not answer Scroll.in’s questions about criticism of the amendment and whether the committees will come under the Right to Information Act. But it said that the government will be releasing more information regarding the grievance appellate committees in the coming days.
This article will be updated if the minister responds to the rest of the queries.
Can the powers be misused?
Experts believe that social media platforms will now be incentivised to remove, suppress or label any speech unpalatable to the government or those exerting political pressure.
Before the amendments, if a user wanted to have content taken down, they would have had to obtain a court order. A judge would decide the legality of the content and weigh free speech and public interest concerns before the content was removed.
Under the amendment, intermediaries have 72 hours to decide whether to remove the flagged content. If they fail to remove the content within 72 hours and it is later found to be unlawful, the intermediary could be held liable, civilly and criminally.
“This creates a strong incentive for intermediaries to remove content once they receive a complaint,” said Devadasan. “This in turn creates a risk that users will send out frivolous complaints against content they don’t agree with.”
The amendment does not provide a clear threshold for when a user can appeal against a decision by an intermediary. The government could ensure that suspect material that supports its agenda stays in circulation.
“Since the GAC is empowered to hear appeals from users whose content has been taken down by a social media intermediary for violation of its community guidelines or terms of use, the government will also be in a position to force social media platforms to display content that the platforms have found to violate their norms,” said the Internet Freedom Foundation in a statement on its website.
Can the Centre’s takedown orders be challenged?
In July, Twitter sued the Indian government in the Karnataka High Court challenging content takedown orders. In its petition, the platform claimed that the government’s orders were “substantively and procedurally” non-compliant with the blocking powers under Section 69A of the IT Act, 2000.
The section allows the government to block public access to content in the interest of national security.
Twitter also alleged that the government’s order to remove certain accounts and tweets – including of politicians, activists, and journalists – was not required in the interests of public order.
Users whose material has been taken down at the behest of the government are unlikely to find relief from the committee, experts said.
“When the government decides to block content, the decision to block is taken by an inter-ministerial committee and not the grievance officer of the intermediary,” said Devadasan. “Therefore, it is unlikely that the GAC’s remit will include challenges to government blocking orders.”
Google, Meta (which owns Facebook, Instagram and Whatsapp) and Sharechat declined to answer queries sent by Scroll.in. This story will be updated if Snap (formerly Snapchat) responds to queries.