Guest Post: Grievance Officer in the IT Rules - An Invisible Man?

We are pleased to bring to our readers this guest post from Sooraj Abraham, on a recent decision of the Allahabad High Court on the appointment of a grievance officer under R.3(11) of the Intermediary Guidelines. I had written about the movement to annul these Guidelines last week, and the surprising support of the Indian Music Industry for its continuance. 

This post explains the issues relating to the appointment of a 'Grievance Officer'. Looks like just another reason to have the Guidelines re-worked to clarify these ambiguities. 

I for one, really wish to know whether copyright violations are to be reported to websites or not, when there doesn't even appear to be  in the first place, any safe harbour immunity afforded to intermediaries in complying with such requirements. 

The Invisible Man - Sooraj Abraham

Yesterday I was scouting through Times of India and accidently stumbled up on Hon’ble Allahabad High Court’s decision. Main issue in the decision was with regard to the appointment of grievance officer under rule 11 of the Information Technology (Intermediaries guidelines) Rules, 2011 (IT Rules 2011). The High Court held that all the websites operating in India must adopt the complaint redressal system under the IT rules of 2011. The case mentioned under the TOI news is filed due to the websites in India has failed comply with the an earlier order passed by the hon’ble High Court of Allahabad in Amithab Thakur v Union of India. In furtherance of this order, the Ministry of Communication and Information Technology had issued direction to Internet Service Providers Association of India to comply with the decision. However, the petitioner in the present case alleged that Ministry of Communication and Information Technology has failed to enforce the provisions of IT Rules 2011. Hence forth the Allahabad High Court issued the new order directing the MIT to impose the “complaint redressal mechanism” contemplated under the Rules.

The complaint redressal system contemplated under the guidelines start with the appointment of a Grievance Officer (GO). All the websites must appoint the said officer and should publish their contact details along with the mechanism in which a complaint can be forwarded to the GO. GO under the rules is an important person because he is acting as the judicial officer who has the authority to receive the complaints alleging an act by an intermediary which is in contravention of rule 3 of the IT rules 2011. He (or she as the case may be) holds the wisdom that determines almost all the rights available to an individual\netizen in the cyber world.

Analysis of Rule 11

Surprisingly such an important officer under the IT rules 2011 is an invisible man. Normally when legislations create a post which contains judicial powers, mandates the minimum qualifications. In this case the GO is “undefined”. The IT rule 2011 is silent about the minimum qualification, duration, tenure etc available to the GO. The most important concern which will be raised under rule 11 is the nature, manner, powers available and delivery of decision taken by the GO.

GO is nobody as far as the legal system of India is concerned.

1.       No proper guidelines for the procedure followed by the GO in deciding and disposing a complaint. Normally to save the trouble and ease up the process the legislature would say “observe principles of natural justice while disposing the matter”. In this case a GO is free to do whatever method feasible for him to reach the decision.

2.       Power to call in evidence or is it require calling evidence at all for disposing a complaint is absent. Normal provision will sound like “the authority can exercise the power of a civil court in calling evidence, document etc.”

3.       The most important ingredient missing in IT rules 2011 is scope and ambit of decision rendered by the GO.

a.       First of all there is no mandatory requirement for delivering the decision in writing. The decision can be in any form at the discretion of GO.

b.      There is no direction as to record the reasons for providing while disposing a complaint. Reasoning is perhaps one of the most important aspects of a decision. It ensures the existence of non arbitrariness in the system. In this “I decide to remove such content” is enough to qualify “redressal of complaints” under R 11.

4.       Right of appeal is absent in the IT rules 2011.

5.       There is no proper procedure as to how to treat a complaint and further proceedings that should be adopted by the GO.

To sum up the so called “complaint redressal system” contemplated under IT Rules 2011 is well there is no proper system.

Analysis of Rule 4 and 11

Under rule 4 an intermediary have minimum periods of thirty six hours to act up on the “information” about the acts contravening rule 3 which is provided by an affected person or the intermediary obtained by its own. Rule 11 read with rule 4 creates a lot of complications.

A GO is appointed with an object to redress the complaint and he should be the person of first instance. If a harmonious construction method is adopted, the intermediary in rule 4 has to be taken as a GO and information should be substituted with complaint. However, such an approach would prove pointless because the time frame mentioned under both rules is substantially different. This leads to the conclusion that both the rules have an independent existence.

Assuming the independency of the rules leads to another set of interpretations. The word “shall” is used in r 4 and R 11 which makes it as a mandatory provision. No scope in resorting to claim the benefit of “intention of legislature” either as the legislature made its intentions pretty clear. The best possible approach is to leave the authorities independent. I do not know the scope and ambit of “intermediary” under rule 4. If a liberal approach is resorted for interpretation, even a letter addressed to a peon can be taken as “information” under the rule.

PS: I hope not hear about an advertisement saying “Grievance officers” are available on an affordable rate and contractual basis, thus embarking an entirely new version of BPO sector in India.

(Image from here)