Introduction
On Apr 3, 2019, the Madras High Court passed an ex-parte order[i] directing the state to ban a video-sharing application, TikTok. The division bench observed that the App contains inappropriate and pornographic content which is dangerous for children. In view of this, a Special Leave Petition was filed, wherein the Supreme Court[ii] refused to stay the order. After 3 weeks, on Apr 24, 2019, the Madras HC vacated[iii] the concerned interim order.
The Division Bench of Madras HC lifted the ban after considering the affidavit filed by TikTok. This affidavit highlighted the automated tools of industrial standard employed by TikTok which could detect and remove obscene & pornographic content that might be posted immediately. The bench also warned that the violation of this undertaking may amount to contempt of court, if any inappropriate content is found on the app in future.
During the three-week ban, financial loss of $500,000 per day[iv] was reportedly incurred, which includes reduction in the value of its investments and loss of commercial revenue. The people, who gained popularity from the app, were badly hit by the ban. It was also reported that more than 250 jobs[v] were put at risk after the imposition of the ban.
The question arises whether the court’s action on moral panic to a wholesale ban infringes the right to free speech and expression under the Indian Constitution or not. The account shall first analyse and answer the same from different perspectives. This shall be followed by a discussion on the loopholes of cyber law with respect to protection of children in cyberspace. Lastly, the author will put forth recommendations based on the overall observations.
Debate on Free Speech
Violation of Article 19(2) by the Court
It is an accepted fact that every person has the right to free speech and expression under Article 19(1) of the Constitution[vi]. A bare perusal[vii] of its exceptions under Article 19(2)[viii] reflects that it only covers a law made by the state and not the ‘judge made law’. So, if the State displays no interest in restricting any video app, then the Court cannot take over and substitute the State’s role to restrict free speech[ix] through any mechanism. However, the court took the same route while initially banning the app.
The court has drawn its reasoning from three different incidents that have happened in the past:
a. In Chennai, an auto driver was arrested for posting a video that included a woman from Chennai on TikTok Mobile App.
b. A 15-year old girl is said to have committed suicide at Mumbai for being scolded by her grandmother for use of TikTok Mobile App.
c. An old man was said to have fallen from the waterfalls in Valprai while taking a selfie for TikTok video.[x]
Going by the above incidents, the court could have banned the entire Internet. Any restriction or ban on the right to free speech and expression must be ‘reasonable’ as per Article 19(2). The blanket ban even violates the Shreya Singhal’s[xi] case wherein the Supreme Court ruled that the authorities must seek only individualised content takedowns. The pre-condition to this has been provided in Sabu Mathew George v. Union of India[xii], where the court held that every platform needs to have auto-blocking and other safety measures against harmful content. Although the Madras HC has considered the automated tools for auto-blocking in its latest order, yet it failed to acknowledge the safety measures[xiii]previously adopted by TikTok, in its ex-parte order.
An Attack on Artistic Expression & Creation
The TikTok Mobile App has become a medium for people of the country to express their talent worldwide. The App provided their art & talent an opportunity to carve out space in film & fashion industries. With the imposition of the three-weeks blanket-ban on TikTok, it had caused a major havoc to their income and artistic creation. The Supreme Court in the case of Nachiketha Walhekar v. CBFC[xiv] dealt with the artistic creation and observed:
“…A film or a drama or a novel or a book is a creation of art. An artist has his own freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to crucify the rights of expressive mind. …A thought provoking film should never mean that it has to be didactic or in any way puritanical.”
The most explicit provisions protecting the freedom of artistic expression and creativity are to be found in Article 15(3) of International Covenant on Economic Social and Cultural Rights[xv] , which deals with “undertaking to respect the freedom indispensable for…creative activity” and in Article 19 (2) of International Covenant on Civil and Political Rights[xvi], which states that the right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds “in the form of art”.. In addition, under Article 27 of the Universal Declaration of Human Rights (UDHR)[xvii], everyone has the right “to enjoy the art.”
Absence of Regulation to Restrict Obscene Content on Internet
In this digital world, the films, serials, cinemas and other multimedia content are being broadcasted and transmitted through the internet without any restriction. There is no substantive regulation regarding the broadcasting of films, cinema, serials and other multimedia content via the internet. The Central Board of Film Certification (CBFC) was constituted under the Cinematograph Act, 1952[xviii] to regulate the content broadcasted via cinemas and theatres. However, the same does not deal with the content being broadcasted and transmitted via the internet. These days, a large amount of audience are easily being exposed to obscene content available on the internet. The question also arises as to what extent such content can be treated as ‘obscene’ for the audience.
In Regina v. Hicklin[xix], the Quenn’s Bench formulated the Hicklin’s Test. It was held that the obscene matter would be considered by itself and then separately. This is too find out whether the obscenity is so gross so as to deprave and corrupt those whose minds are open to influences of this sort. Along with whose hands the content is likely to fall. Since the case of Ranjit D Udeshi v. State of Maharashtra[xx] where the Hicklin’s Test was first adopted by the Indian Courts, the Court has followed this test for nearly 50 years. The Supreme Court in Aveek Sarkar & Anr. v. State of West Bengal & Ors[xxi] rejected the Hicklin’s Test which judged obscenity based on isolated passages of a work, which were considered out of context.
The Supreme Court in Aveek Sarkar’s[xxii] case adopted the ‘community standard test’ established in Roth v. United States[xxiii]. It says that obscenity must be judged from the point of view of an average person by applying contemporary community standards and not the standard of susceptible and sensitive persons.
Moreover, in the case of Secretary, Ministry of I&B, Gov. of India v. Cricket Association of Bengal[xxiv], the Supreme Court directed the establishment of an autonomous broadcasting authority to control and regulate the broadcasting media. Recently, a PIL was also filed in the Karnataka HC and Delhi HC for regularization of content on the internet broadcasted by Netflix, Amazon Prime, YouTube etc. The Delhi HC, however, dismissed[xxv] the petition and held that the capacity of the IT Act, 2000 to regulate online content is sufficient through its provisions and there is no need for any external regulations.
Lacunae for Children in Cyber Laws
As per the UNICEF Report[xxvi] on ‘Child Online Protection in India’, the extant of Indian laws are not enough to effectively curtail the different cyber threats of cyberbullying, cyberstalking and sexual abuse involving child pornography that children are exposed to in a digital world. Many acts such as sexting and cyberbullying that have been criminalized in other countries are not yet regarded as offences under Indian legal framework.
Even though there exist age restrictions on certain sites on the internet, there are a large number of children who are constantly using such sites. Children these days are more prone to ‘accessing’ sexual content available on the internet. Section 67B, the only provision of Information and Technology Act, 2000[xxvii] that specifically deals with children talks about the ‘transmitting’ of sexually explicit material to children. As the terms ‘transmit’ and ‘access’ are two opposite terms, it is difficult to punish an accused under IT Act, 2000.
The other concern is related to the privacy of children in the digital sphere. Although Section 66E of the ITAct, 2000 provides for the right to privacy, yet it is not exhaustive enough to deal with the cyber crimes against children. Our country does not have any codified data protection laws that could prevent children from the harms of the cyber-space. Notably, the court in TikTok’s ex-parte order also directed the state to enact a statute at par with the Children’s Online Privacy Protection Act (COPPA). COPPA is presently adopted by the United States of America to prevent any misuse of child’s right to privacy below the age of 13 years.
Recommendations
In view of the aforesaid analysis, the author would like to put forth the following recommendations:
1. The court should resist from applying any blanket-ban on speech and expression. However, if necessary, the aim of the court should be to extract out the obscene, illegal or unconstitutional part as prescribed under Article 19 of the Constitution.
2. Proper guidelines should be made to protect the artistic expression of the artists. These guidelines should be in conformity with international conventions and protocols.
3. Laws should be implemented to regularize content on the internet. Special amendments can also be made in the Cinematography Act, 1952 to regularize the broadcasting and transmitting of content on the internet.
4. Amendments should be made in the IT Act, 2000 to make it more feasible to punish accused involved in cyber-crimes against children.
5. There is a need to institute a codified data protection law to protect the privacy of children in the cyberspace. These laws should be at par with the COPPA. Reference for the same can also be taken from the Indian Privacy Code,[xxviii] a privacy bill drafted by a batch of lawyers in India.
[i] Available at https://drive.google.com/viewerng/viewer?url=https://www.livelaw.in/pdf_upload/pdf_upload-359654.pdf (Last visited on July 21, 2019).
[ii] Bytedance (India) Technology Pvt. Ltd. v. S. Muthukumar & Ors. SLP (C) 9815/2019.
[iii] S. Muthukumar v. Union of India & Ors. W.P. (MD) No. 7855/ 2019.
[iv] Available at https://www.reuters.com/article/us-tiktok-india-exclusive/exclusive-chinas-bytedance-says-india-tiktok-ban-causing-500000-daily-loss-risks-jobs-idUSKCN1RZ0QC (Last visited on July 21, 2019).
[v] Ibid.
[vi] The Indian Constitution, a. 19.
[vii] Gautam Bhatia, Judicial Censorship: A Dangerous, Emerging Trend, Indian Constitutional Law and Philosophy, Available at https://indconlawphil.wordpress.com/2016/05/02/judicial-censorship-a-dangerous-emerging-trend/ (Last visited on July 21, 2019).
[viii] Supra vi.
[ix] Ibid.
[x] Supra i.
[xi] Shreya Singhal v. Union of India [(2015) 5 SCC 1].
[xii] Sabu Mathew George v. Union of India [(2017) 2 SCC 514].
[xiii] Available at https://timesofindia.indiatimes.com/gadgets-news/tiktok-introduces-new-safety-measures-for-indian-users/articleshow/68612185.cms (Last visited on July 21, 2019).
[xiv] Nachiketha Walhekar v. CBFC [(2018) 1 SCC 778].
[xv] International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 177, a. 15(3).
[xvi] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, a. 19(2).
[xvii] UN General Assembly, Universal Declaration of Human Rights, (adopted and entered into force 10 December 1948), 217 A (III), a. 27.
[xviii] The Cinematograph Act, 1952, s. 3(1).
[xix] Regina v. Hicklin [(1868) LR 3 QB 360].
[xx] Ranjit D Udeshi v. State of Maharashtra [(1965) 1 SCR 65].
[xxi] Aveek Sarkar & Anr. v. State of West Bengal & Ors. [(2014) 4 SCC 257].
[xxii] Ibid.
[xxiii] Roth v. United States [1 L Ed 2d 1498: 354 US 476 (1957)].
[xxiv] Secretary, Ministry of I&B, Gov. of India v. Cricket Association of Bengal [(1995) 2 SCC 161].
[xxv] Justice for Rights Foundation v. Union of India W.P. (C) 11164/2018.
[xxvi] Available at https://www.icmec.org/wp-content/uploads/2016/09/UNICEF-Child-Protection-Online-India-pub_doc115-1.pdf (Last visited on July 21, 2019).
[xxvii] The Information and Technology Act, 2000, s. 67B.
[xxviii] Available at https://saveourprivacy.in/bill (Last visited on July 21, 2019).
This blog is part of the RSRR Rolling Blogs Series. By Anirudh Vijay, IV year, Faculty of Law, Jamia Milia Islamia, New Delhi.