The Grievance Redressal Mechanism (GRM) proposed in the recently published IT rules, 2021 has a stated objective of consumer protection. The outcomes of this however, may be vastly divergent from as intended. Here I attempt to unpack the new Grievance Redressal Mechanism through the lens of Polycentric Law.
The Grievance Redressal Mechanism under the IT Rules, 2021 mandates the appointment of a “Grievance officer” who resolves customer complaints within 15 days. Above this, there will be a self-regulatory body of publishers to address grievances that have not been resolved by the grievance officer within 15 days. Finally, an inter-departmental committee will be set up for “oversight mechanism”.
Problems with the GRM
There are multiple problems with the proposed GRM. For starters, why do we need this when most of these platforms already have customer care mechanisms where one can lodge complaints?. According to Sprout Social Index, 2020, 40% of consumers expect brands to respond within the first hour of reaching out on social media, while 79% expect a response in the first 24 hours. Moreover, 56% of consumers surveyed by Statisa have a more favorable view of brands that respond to customer questions or complaints on social media. Such stiff consumer preferences in the market and competition among the players, are quality checks that are already in place. A grievance officer only adds to the bureaucratic process.
Two, the impracticality of the GRM, especially in the case of News Media cannot be ignored. Let’s say someone thinks a news report has hurt a religious sentiment. They raise a complaint with the grievance officer at the news media, who concludes that the report in question was cleared for publishing after sufficient editorial review, a procedure that any serious media organization will follow. A complaint that proceeds in this direction will inevitably reach the inter-departmental committee. Gradually, this will turn the committee into a ‘court’ with insurmountable pendency, only to transfer most of its cases to the already clogged and top-heavy Indian Judicial system. Impractility arises also when we consider the cross-border nature of disputes on the internet.
Three, it is hard to see how a government inter-departmental oversight mechanism can redress grievances without also creating an opportunity to manipulate social media discourse to favour a partisan perspective or ideology.
In light of these perspectives, it is surprising that the government has taken the route of centralisation despite the existence of effective alternate dispute redressal mechanisms.
Customer Preference over Centralization
In October 2020, NITI Aayog released a draft for discussion called ‘Designing the Future of Dispute Resolution’. Here NITI Aayog rightly identifies courts or any dispute resolution mechanism to be a “service, not a place”. The paper appreciates the work of legal tech start-ups, like NestAway’s CADRE, that advance out of court settlements and points to the customer care grievance redressal services started by eBay in the 1990s as a model. The paper also discusses the efficiency of such methods and their increased preferability in the market.
But surprisingly the government has chosen to ignore all these progressive suggestions and has instead resorted to a centralized mechanism in the IT rules. Social Media giants like Facebook and WhatsApp have their own grievance redressal mechanisms that they offer as a service to their customers. It is true that some of these processes are opaque and seemingly arbitrary. The information asymmetry that ensues cannot be ignored. However, the way to regulate such centralization by tech giants is not through another centralised mechanism. In 2020, the controversial privacy policy of WhatsApp was met with public outrage that led to a large number of customers shifting to alternative messaging platforms like Signal and Telegram. In this case, customer preference drove the market. When customers are informed about their choices, they make decisions that serve their interest, or they learn from their mistakes. The power of such informed preferences can regulate any tech giant (even the government itself). In such an environment, a government can best serve its people by improving access to consumer courts, although appeals to which should be an exception rather than the norm. The government need only interfere when there is inadequate information dissemination, where it could mandate the companies to make their redressal processes more transparent and accessible.
Polycentric Justice Delivery
The societies we live in are polycentric – organized around more than one source of authority. In such a society, the State is only one of the centres among other centres like markets, societies, or even residential associations. When polycentric societies are governed as a monocentric system – i.e when state subsumes all other centers, the system becomes centralised. When Justice delivery is centralised, instead of leading to progressive and standardised uniformity, as is often expected, it leads to pendency and denial of justice.
Polycentric societies should be allowed to develop dispersed and decentralized adjudicatory systems, which are faster and more efficient. The Internet being the most polycentric and decentralized of spaces, with no boundaries of nation, time zone, gender, religion etc, is the right place to start a polycentric, collaborative, market based dispute resolution mechanism.
Such dispute resolution mechanisms already exist in some parts of the world. Tom W Bell in his paper ‘Polycentric Law in a New Century’ talks about how when “government bureaucrats endlessly deliberated about how to fix the quasi-public domain name registration system, entrepreneurs set up private, for-profit alternative” polycentric resolution mechanisms. He cites the example of Virtual Magistrate. VM is an on-line arbitration and fact- finding system designed to settle disputes involving internet users and parties who complain that on-line conduct has harmed them. VM has adopted procedures uniquely suited to internet law.
International law and especially internet law is moving in the direction of polycentricity, with more acceptance for mediation, arbitration etc over conventional methods. The state doesn’t have to be the only or even primary source of justice delivery. With the advent of technologies like Blockchain, decentralized justice is a real possibility. But the government, in its IT rules, has failed to take cognisance of this market trend and instead created another mechanism that shifts power into its hands.
Fallacy of a Paternal State
Finally, an underlying assumption behind policies such as the GRM in IT rules is the idea of a paternal state – that the state is always and only for the citizens, trying to protect them from profit hungry western tech and media giants. But if the recent Pegasus leaks have taught us anything, it is that the government and tech companies are not fighting one another on our behalf. Instead, they are actually fighting among themselves for control of our data. Government needs to be regulated as much as the tech companies because under the veneer of consumer protection it’s hard not to see the government’s lurking protectionist motivations in these rules.