1 month of the GAC felt like a lifetime! We wrote to them seeking answers.

tl;dr

The Ministry of Electronics and Information Technology (“MeitY”) published a notification establishing three Grievance Appellate Committee(s) (“GAC”) on January 27, 2023 under Rule 3A of the notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“IT Amendment Rules, 2022”). We have previously covered our concerns with the executive overreach and legal uncertainty inherent in this provision. April 01, 2023, marks one month of the GAC’s functioning. We wrote to the Chairpersons of the three Committees, seeking clarification about the GAC’s establishment and functioning.

Why should you care?

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”) made private platforms the arbiters of permissible speech on the internet, in the name of making social media intermediaries accountable to their users.. The constitution of the GAC under the IT Amendment Rules, 2022, allows for user appeals against due diligence actions of intermediaries to be decided by members of  executive-appointed committees with little to no specialised experience in dealing with user harms. The combination of these provisions could lead to social media intermediaries preemptively censoring free speech on the internet.

Background

The IT Rules, 2021 have been criticised by various relevant stakeholders since its inception, primarily for imposing unreasonable, excessive restrictions on free speech and user rights online. The IT Amendment Rules, 2022 doubled down on many of these impositions, deepening injuries on the digital rights of Indian internet users. The GAC does not have any legal basis and amounts to executive overreach. This is because the Information Technology (“IT”) Act, 2000, under which the Rules are notified, does not grant MeitY the powers to create new avenues for censoring speech. Moreover, the GAC was constituted without parliamentary involvement, and thus, without the legislature permitting the executive to constitute the GAC through a subordinate legislation.

Concerns with the GAC extended beyond its legality. Reportedly, outside of the three officers appointed to each of the three GACs, another two will be appointed as a part of the Project Management Unit  (“PMU”) in anticipation of receiving a large number of complaints. The three GACs will be led by MeitY, the Ministry of Information and Broadcasting (“MIB”) and the Ministry of Home Affairs (“MHA”) respectively, with prioritisation and segregation of appeals among the GAC reportedly being done automatically. Reportedly, the MHA led GAC will largely deal with “complaints on illegal or criminal activities”, the MIB led GAC will handle “misinformation or fake content”, and lastly, the MeitY led GAC will work on issues relating to “copyright issues or any other unlawful activity that is otherwise not covered elsewhere”. We have previously detailed the issues we have with the proposed functioning of the GAC, stating that the GAC(s) may not have the competence and capacity to resolve the high volume of user complaints they are likely to receive.

The criteria on the basis of which the “automatic” segregation - and later, the disposal - of appeals will occur are also unclear. The accompanying press release with the notification of the constitution of the GAC stated that “periodic reviews” of the committees, along with the “reporting and disclosures of the GAC orders” will also be part of the process. The GAC began operations on March 01, 2023. As of April 01, 2023, no reviews have been released and none of the GAC orders have been made public. Thus, we wrote to the Chairpersons of the three GAC(s), seeking clarification about their establishment and functioning so far.

Our letter

On March 14, 2023, we filed an Right to Information application (“RTI”) with MeitY, seeking details of the GAC led by the Ministry, including the details of the intermediaries under the IT Act, 2000 against whose decisions appeals had been filed. And on April 01, 2023, we sent the afore-mentioned letter to the GAC(s) directly, urging them to release:

1. the process and details of the periodic reviews;
2. the details of all intermediaries under the Information Technology Act, 2000, against whose decisions appeals have been filed thus far;
3. the details of the number and nature of appeals which have been disposed by each GAC thus far; and
4. the orders for the appeals disposed off thus far, the grounds on which the members of the GAC dispose off appeals, their stated reasoning for each disposal;
5. the details about the basis/ criteria for appointing the members of the PMU, its composition (number of members, qualification requirements, diversity of the Unit, etc.), and its roles and responsibilities.

Important Documents

1. Our letter to the GAC Chairpersons dated April 1, 2023 (link)
2. The IT Amendment Rules, 2021 (link)
3. IFF’s Public Brief on the IT Amendment Rules, 2021 (link to the blogpost) (link to brief)
4. Notification establishing the GACs dated January 27, 2023 (link)
5. Press Release accompanying the January 27 notification (link)