They have urged the government to mention “the specific grounds” under which an appeal may be made to the GAC, as this would also keep the volume of cases escalated to the GAC more manageable.
Legal experts have also expressed concern over the staffing of statutory bodies, whether it is a commission or a tribunal. As vacancies to these bodies are not being filled up on time, many cases are still pending, they said.
In August 2021, the Chief Justice of India observed that there were over 240 vacancies in tribunals across the country.
Lawyers have also said that an appellate forum should have been created based on a primary legislation made by Parliament, through an amendment to the IT Act and not solely based on an executive fiat.
“This itself is likely to be challenged and may be a matter of dispute,” Sanjay Sen, senior advocate at the Supreme Court, said.
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Under the amended IT Rules that the government notified on Friday,
GACs must be set up within 90 days. The government also said it would
soon decide on the framework for the composition, functioning and other modalities of the GACs, which would be set up to address user complaints against social media platforms such as Twitter and Facebook.
Each GAC will consist of a chairperson and two other members – all of whom would be appointed by the government with one of them being an ex-officio member, as per the new Rules.
“In view of this composition and the roles and responsibilities assigned to the GAC, a lot of advocacy groups do believe that the GAC may lead to the Executive having a disproportionate say in relation to user content hosted by intermediaries, especially social media intermediaries and thereby having an unprecedented power to remove content that may not appease the government,” said Ranjana Adhikari, partner, IndusLaw.
To balance this, it would have been better if the amendment rules had mentioned the specific grounds under which an appeal may be made to the GAC, she said.
“This would have also kept the volume of cases escalated to the GAC more manageable,” she added.
The amendments are largely the same as the version proposed in June but with some additional changes.
For instance, the government has made changes to the list of prohibited content, and while most content takedown-related grievances need to be actioned within 72 hours, categories like defamation and IP infringement are exempt from this requirement.
“We believe they’ve tried to narrow down to more problematic content that needs to be actioned quickly. But it remains how this will play out in practice,” said Aman Taneja, lead – emerging technologies, Ikigai Law.
This is especially so since terms like ‘misinformation’ have been introduced without providing a definition as to what that really means.
While the focus remains on social media companies, the amendments apply to all types of intermediaries. This is a missed opportunity to narrow down to the platforms that the amendments are really targeted at. “We might see unintended consequences for other non-social media intermediaries,” he said.
Comply or lose safe harbour
On what would happen if social media intermediaries do not comply with a GAC decision, Minister of State for Electronics and IT Rajeev Chandrasekhar said they might lose their safe harbour protection.
Failing to act on one GAC order should not strip the platform of safe harbour from all the other content that it hosts, Taneja said.
This would be a disproportionate outcome and make operating any business which relies on user-generated content extremely challenging in the country, he said.
The fear of losing safe harbour may result in overcompliance by platforms and it could negatively impact users’ ability to use these platforms as a means of expression, he added.
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