All, if not most, social media users are critical of the content moderation policies of social media platforms. After all, there is little to like about massive Silicon Valley corporations which harvest our behavioural data to serve us ads, fail to take down hate speech, and instead censor people without meaningful transparency.
This underlying sentiment finds force within a new censorship body, namely, Grievance Appellate Committees (GACs) which became operational on March 1, 2023. They allow users of intermediaries – social media platforms, internet services providers and search engines, among others – in India to file appeals against the decisions of the Grievance Redressal Officer of platforms or their failure to act on complaints made to them. These may include complaints made with the intent to censor offensive content, requests to restore accounts or posts, and so on.
Now, all of this will seem very sensible to many people. After all, these platforms lack transparency, and finally, there is some government oversight in the form of these GACs. Such a view would further advance an argument that one should trust public authorities that would obviously protect the freedom of speech and expression of ordinary Indians while safeguarding them from dangers. This was one of the motivations for the Ministry of Electronics and IT (MeitY), which claimed that GACs would address grievances being “left unaddressed and unsatisfactorily addressed by internet intermediaries”.
Here, we must consider that the legal basis of the GAC itself is questionable. It has neither been constituted by the legislature nor has the legislature permitted the executive to constitute the GAC through any clear provision under the Information Technology Act, 2000. This fits a wider pattern of illegality that is likely to cause censorship and government-led content moderation on social media platforms, without any transparency.
Any faith in the GACs also fails to consider that rather than an independent adjudication mechanism, it would be subservient to the Union government. After all, there are no clear appointment criteria within the notified IT Amendment Rules, there is a lack of security of tenure, and that is accompanied by the carrot of lucrative financial remuneration. At present, there are three existing GACs that have been notified directly by the Ministry of Electronics and IT. A flavour of the qualifications of the adjudicators within these GACs as per the notification dated January 27, 2023 includes serving and retired government officers from the home ministry, police services and armed forces. There is also some private sector participation of former senior management personnel of large companies without the presence of any people who are from domain experts on platform regulation, civil society, academia – forget retired judges, even people who are formally qualified and practice law have been excluded.
Obscure process, reporting mechanisms
In about two weeks, these three GACs have received 23 appeals, of which they have disposed of nine, with the entire process being conducted digitally on an online platform. This has been set up as per the announcement by MeitY when it announced the creation of GACs in a press release which stated that the appeals will have to be raised on the GAC website, and the entire appeal process, from filing the appeal to the decision thereof, will be conducted digitally. The press release also revealed that “periodic reviews of GACs and reporting and disclosures of GAC orders will also be part of process (sic)”.
However, till date, none of the GAC orders by themselves have been made public. This means that either the appeals have been dismissed or directions have been issued to intermediaries to take down, or reinstate portions of their service. This may ordinarily include social media posts and hence it may have a natural impact on the freedom of speech and expression, or more specifically the fundamental right to receive information. Today, social media censorship is being done by a body appointed by the Union Government without proper transparency.
The mystery around GACs’s reporting mechanism and periodic reviews doesn’t end there. Details such as how frequently and by whom these periodic reviews will be conducted, the basis on which they were selected/appointed to do so, etc., are still unknown.
There is no dearth of procedural and operational ambiguities with the GAC. Reportedly, each GAC is supposed to have a Project Management Unit (PMU), which consists of 2 appointed members. It was also reported that the PMU “evaluate and prioritise” the appeals, following which the other GAC members will deliberate and discuss. Details on what basis, criteria or parameters the PMU will prioritise among the tens of thousands of appeals and then segregate it among the three GACs has not been disclosed till now. The PMU, which was supposedly created in anticipation of a large number of complaints coming in, has had no official mention so far and its existence was reported for the first time in a news article mere days before the GACs became operational. Thus, it is no surprise that the basis and criteria for appointing the members of the PMU, the details of its composition (number of members, qualification requirements, diversity of the unit, etc.), and its roles and responsibilities all continue to remain a mystery.
Due to substantive concerns and procedural opacity, the Internet Freedom Foundation filed an RTI appeal on March 14, 2023, seeking information on the reasoned orders passed by the GACs, details on the GACs and the number of disposed of appeals by each of the three committees, details of intermediaries against whose decisions the appeals were filed, and plans of the GACs to publicly disclose the orders. This portends another worrying development for censorship in India which will be carried out in secret.
Prateek Waghre is policy director at the Internet Freedom Foundation and Tejasi Panjiar is associate Policy Counsel at the Internet Freedom Foundation.