The IT 2021 Rules include a three-tier grievance redressal structure for dealing with complaints regarding the Code of Ethics. Under Rule 11 of the IT Rules 2021, the first level of the three-tier structure will be the publisher, who will be required to set up a self-regulating mechanism and appoint a grievance officer based in India. The publisher must acknowledge any grievance within 24 hours of its receipt. The grievance officer is required to make a decision on every grievance received and communicate it to the complainant within 15 days of the grievance being registered.
Introduction
Social media companies operating in India must comply with the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, which go into effect today. The new guidelines were published in February, giving social media platforms such as Facebook, Instagram, Twitter, and Koo three months to comply. The Ministry of Electronics and Information Technology’s new IT Rules 2021 for digital media platforms mandate the appointment of a resident grievance officer as part of a larger grievance redressal mechanism, active platform content monitoring, monthly compliance reports for Indian users, self-regulation mechanisms, and an oversight mechanism.
Under rule 10 of IT Rules 2021[1], it says within twenty-four hours, a publisher is required to acknowledge the complainant’s complaint. Within fifteen days of receiving the grievance, the publisher must address it and communicate its decision to the complainant. If the dispute is not resolved within fifteen days, it will be escalated to the self-regulating body’s level two of the three-tier grievance redressal procedure.
The regulation of online curated content, as well as news and current affairs content, is divided into three levels, which are:
- Self-regulation by the Publisher (Level-I)[2]
- Self-Regulatory Body (Level-II)[3]
- Oversight Mechanism (Level-III)[4]
In this article, we are looking at Level I. The Publisher is the Level 1 of the self-regulation mechanism.
What is a grievance redressal mechanism & what are the requirements of a Grievance redressal system?
Digital media platforms now require a broader grievance redressal process, which comprises a Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer, according to the new IT Rules 2021. All social media platforms must make these facts available to users on their apps and websites, as well as explain how to raise a complaint about any content on the platform. Within 24 hours of receipt, these concerns must be recognized, and within 15 days of receipt, they must be addressed.
The publisher should display the contact details related to its grievance redressal mechanism and the grievance officer’s name and contact details of its Grievance Officer on its website or interface. The new rules broaden the scope of the process by requiring the grievance officer to acknowledge the complaint within twenty-four hours and to dispose of the complaint within fifteen days.
Henceforth, the publisher needs to be a member of a self-regulating body at Level 2 as referred to in rule 12 and abide by its terms and conditions.
Who is a grievance officer?
A grievance officer is a contact point for receiving any grievance relating to the Code of Ethics; he also acts as the nodal point for interaction with the complainant, the self-regulating body, and the Ministry.
Other Responsibilities of the publisher?
The publisher of such content shall classify online curated content into the categories referred to in the Schedule, with the relevant rating for such categories based on an assessment of the relevant content descriptors in the manner specified in the said Schedule, taking into account the context, theme, tone, impact, and target audience of such content.
Every publisher of online curated content must prominently display the rating of any online curated content, as well as an explanation of the relevant content descriptors, to its users in a way that guarantees that such users are aware of this information before accessing such content.
Secluded views on Self-regulating Grievance Mechanism by Publisher at Level-I: IT Rules, 2021
There are some striking similarities between the measures used to silence the press by the current Indian government and those used by the government during the 1975 general emergency.
Both regimes attempted to financially attack and strangle independent media outlets. The former used a highly restrictive advertising and newsprint policy (even shutting down electricity to newspaper presses), whereas the current introduced an arbitrary amendment to the foreign direct investment policy that effectively cut off all foreign funding for digital news media entities and forced some reputable publications to close shop. “Steps have been taken to ensure that news reporting on digital media is not skewed primarily as a result of the foreign investment component. It has been decided to cap foreign investment at 26 percent,” says the Group of Ministers’ report on communication.
Both regimes have harassed, arrested, and prosecuted journalists covering sensitive incidents; in fact, both have detailed strategies in place to identify and neutralize ‘unfriendly’ media establishments. A few days after the Emergency was declared, A.R. Baji, the then-chief information officer, compiled a list categorizing newspapers into nine categories ranging from friendly to neutral to hostile; those in the last category were singled out for state harassment.
In late 2020, a group of nine Union ministers prepared an internal report proposing the monitoring and neutralization of government-critical media influencers.
During the Emergency, there was formal pre-censorship.
The recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (IT Rules), on the other hand, reach new heights in terms of burdening and violating press freedom and erecting a system for de facto content censorship.
A large portion of the IT Rules is clearly unconstitutional.
Indeed, the Information Technology Act (under which the rules are notified) does not even contemplate, let alone permit, the regulation of digital media. Thus, the provisions governing publishers in the IT Rules are ultra vires the IT Act and illegal; nothing more than a convenient attempt by the government to circumvent parliament in order to regulate news publishers. Furthermore, the government has been given broad authority to examine, change, and prohibit news items, thus deciding whether or not press speech is legal. This is a quasi-judicial duty, and the executive’s assumption of it is a violation of the separation of powers theory.
But the most pernicious component of these IT Rules is the necessity that all news publishers build a grievance redressal mechanism, which appears to be the most harmless and, unfortunately, is the least focused on in the legal challenges ongoing before several high courts: This single demand not only radically affects the role of the press in our democracy, but it is also likely to lead to the closure of a large number of independent media outlets.
Every publisher is required by IT Rules 10 and 11 to appoint a grievance officer, establish a grievance management procedure, and resolve any grievances within 15 days. If a person has a problem with the content published, they can file a complaint with the publisher, effectively equating the free press to any other product or service on the market. There is no definition or restriction on what constitutes a grievance and thus no restriction on the nature of quibbles that anyone may bring against the publisher. The IT Rules effectively convert reporters and editors into merchants and readers into buyers, and journalism has deemed a commodity that can be bargained over, negotiated, and even returned.
Fortunately, our constitution and decades of jurisprudence on free speech do not agree. The freedom of the press, which is an integral part of freedom of expression and is protected under Article 19(1) (a) (see Anuradha Bhasin v. Union of India[5], Supreme Court 2020), has been described as the “ark of the covenant of democracy” because public criticism is essential to the functioning of its institutions (Bennett Coleman & Co. v. Union of India[6], Supreme Court 1972).
Furthermore, the functions of the press are not limited to the expression of thoughts and ideas that are accepted and acceptable but also include those that offend or shock any segment of the population (Sahara India Real Estate Corporation Ltd. v. SEBI[7], Supreme Court 2012). As a result, news consumption is not a typical commercial activity between two contracting parties. The audience’s concerns, grievances, and disappointments cannot be used to limit press freedom, which can only be limited in accordance with the reasonable restrictions specified in Article 19.
The Supreme Court made clear the scope of such restrictions in Shreya Singhal v. Union of India[8] (2015), which held that a law restricting free speech could not pass muster simply because it was in the ‘public interest,’ but instead had to be covered by one of the eight subject matters listed in Article 19. (2). Section 66A of the IT Act, which criminalized the intentional publication (by anyone) of information that caused annoyance, inconvenience, or insult, was declared unconstitutional on this basis. As a result, it is unsustainable to expect news organizations to compensate for every annoyance, inconvenience, or insult caused by their reporting.
Some in government have scoffed at the fact that grievance redressal is a Sisyphean burden for media outlets; however, politicians are the last people to understand the economics involved in such an obligation, given that they are not subject to such commitments and voters have no consumer rights. The cost of grievance redressal is prohibitively expensive for the vast majority of Indian media organizations.
Several small online publications are considering shutting down their operations due to a lack of infrastructure and personnel.
Furthermore, many ideological outfits have established IT cells and legal teams dedicated to filing large volumes of criminal complaints against the editors of publications putting out the news with which they disagree. Outlets that publish findings critical of the establishment or advocate for a particular political viewpoint or ideal are expected to be bombarded with complaints in quantities that dwarf the locust swarm of 2020.
The IT Rules also allow complainants to file two different appeals against a publisher’s grievance redressal decision, allowing them to keep their grievances alive for longer periods of time. As a result, a single complaint could result in months of regulatory wrangling.
This is another instance of judicial precedent being broken. The Supreme Court declared in Indian Express Newspapers Pvt. Ltd. v. Union of India[9] (1984) that the press should not be subjected to unnecessary restrictions, including taxes, and that the newspaper sector should not be singled out for special treatment. Requiring a publisher to dedicate the majority of his resources from reporting to assuaging every vexatious reader is unquestionably harsh punishment.
This isn’t to suggest that news publishers can’t face consumer obligations or they don’t have a responsibility to their subscribers. This duty, however, cannot be confused with the content of their reporting because a news publisher’s journalism and commerce are two entirely separate things. Sakal Papers v. Union of India (Supreme Court, 1961) recognized that the publication of news and the publication of ads were two distinct duties, with the former covered by the freedom of expression and the latter by the freedom of trade.
As a result, obligations arising from the commercial aspects of the publisher’s business, such as consumer protection, cannot be used to limit the press’s free speech.
Any complainant dissatisfied with the publisher’s redressal may file an appeal with the self-regulating body, a toothless industry organization that can only ‘warn, censure, admonish, or reprimand’ a publisher, or worse, extract an apology. If the complainant is still dissatisfied after this, she may request that the impugned article be modified or blocked. This final step entails adjudication of the grievance by a committee comprised of representatives from virtually every government ministry, including law and justice, women and child development, information technology, information and broadcasting, home affairs, defense, and external affairs. Aside from the illegality of such an executive body performing essentially judicial functions, it is unfortunate that the time and efforts of these stalwart government functionaries will be spent debating the merits of a reader’s grievance.
Conclusion
Under rule 10 of IT Rules 2021, it says within twenty-four hours, a publisher is required to acknowledge the complainant’s complaint. Within fifteen days of receiving the grievance, the publisher must address it and communicate its decision to the complainant. In this article, we are looking at Level I, which is self-regulation by the publisher.
The first level of the three-tier structure will be the publisher, who will be required to set up a self-regulating mechanism and appoint a grievance officer based in India.
- The publisher must acknowledge any grievance within 24 hours of its receipt.
- According to the new IT Rules 2021, digital media platforms now require a larger grievance redressal mechanism that includes a Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer.
Both regimes attempted to financially attack and strangle independent media outlets. Both regimes have harassed, arrested, and prosecuted journalists covering sensitive incidents; in fact, both have detailed strategies in place to identify and neutralize ‘unfriendly’ media establishments.
Every publisher is required by IT Rules 10 and 11 to appoint a grievance officer, establish a grievance management procedure, and resolve any grievances within 15 days.
References
- Rule 10 of IT Rules, 2021
- Rule 11 of IT Rules, 2021
- Rule 12 of IT Rules, 2021
- Rule 13 of IT Rules, 2021
- AIR 2020 SC 1308
- [1973] 2 S.C.R. 757
- (2012) 10 SCC 603
- (2013) 12 SCC 73
- 1986 AIR 515, 1985 SCR (2) 287
- 1962 AIR 305, 1962 SCR (3) 842
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