Content Regulation / Censorship, Indecency / Obscenity
Bobby Art International v. Hoon
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The Madras High Court reversed its own interim order directing authorities to ban the download of Tik Tok app in a public interest litigation seeking to protect the safety and privacy of children. The interim ban was challenged before the Supreme Court, which directed that the High Court consider the Petitioners’ application for vacating the interim ban. The High Court affirmed the request by the Supreme Court and vacated the interim order considering the safety features available on Tik Tok to deal with inappropriate and obscene content reported on its platform. The Court was also convinced that the Indian Information Technology Act, read with its rules and guidelines, provided necessary statutory protections to address issues regarding victimisation and sexual abuse on the internet which formed the central issue in the present case.
A writ petition was filed before the Madras High Court in public interest to ban the download and use of the Tik Tok mobile application (“Tik Tok”) which allegedly contained explicit and disturbing content that degraded culture, encouraged pornography, made teenagers vulnerable to paedophiles, and triggered adverse health issues in adolescents who became addicted to the application. The action was brought by Petitioner S. Muthukumar, a public interest lawyer. By way of the present petition, the Petitioner sought a writ of mandamus (court order to subordinate authority) against the Telecom Regulatory Authority of India (“TRAI”), the Ministry of Communication and Information Technology, District Collector, Madurai and the Commissionerate of Police, Karnataka, directing them to impose ban on the use of Tik Tok. While the writ petition was filed against 6 respondents, the High Court suo-motu (on its own accord) arrayed 3 other respondents, namely, the Ministry of Electronics and Information Technology, the Ministry of Information and Broadcasting and M/s. Bytedance (India) Technology Pvt. Ltd.
The present case has an unusual trajectory. As an interim measure, without hearing the Respondents, by order dated 03.04.2019, the High Court directed the authorities to ban the download of the Tik Tok app. (“Interim Order”) Prohibition was also imposed on media from telecasting the videos made using Tik Tok app. The High Court also sought the response of the Union of India on its failure to introduce an online privacy legislation for children, similar to that in the United States of America. This order was challenged before the Supreme Court of India by M/s. Byte Dance (India) Technology Pvt. Ltd. (“Byte Dance”), the parent company of Tik Tok. As the matter was to be heard by the High Court on the following day, the Supreme Court, by an order dated April 15, 2019 refused to suspend the interim order and posted the matter for hearing on a later date. On April 16, 2019, the High Court refused to lift the ban imposed on Tik Tok, instead, the Court appointed a senior advocate as the Amicus Curaie to assess the implications of the app. Thereafter, by an order dated April 22, 2019, the Supreme Court directed the High Court to decide on the matter, failing which, the Interim Order of the High Court would automatically be suspended.
In compliance with the direction of the Supreme Court, the High Court finally heard the matter and set-aside the Interim Order as per order dated April 24, 2019.
Kirubakaran J. of the Madras High Court delivered the decision on behalf of the division bench. The Court primarily considered the issue of whether the Interim Order had been correctly granted, in view of the alleged adverse impact that Tik Tok cast on its users.
The Plaintiffs argued that the content uploaded on Tik Tok platform was blasphemous and obscene with pornographic undertones. Tik Tok’s customer base included a large number of children and teenagers who were susceptible to cyber abuse and the adverse health issues arising out of exposure to such explicit and disturbing content. It was the Petitioner’s case that use of Tik Tok had also led to multiple reported deaths in India. The Petitioner submitted that obscene videos and inappropriate content still continued to be hosted on Tik Tok app therefore, the interim stay on the app should not be vacated. [para. 4]
Tik Tok and Byte Dance (“Respondents”) submitted that the app had a robust mechanism in place to deal with grievance raised in respect of inappropriate content. The Respondent moderated its content by using artificial intelligence moderation machine at the first level and human moderation in next three levels, which acted as filters to remove inappropriate content. On receipt of any complaint, the Grievance Officer of the Respondent app would be directed to conduct an inquiry. [para. 4] The Respondent, Byte Dance also submitted that the Interim Order violated freedom of speech and expression under Article 19(1)(a) of the Constitution of India therefore, the interim ban ought to be vacated. Further, in support of vacation of the ban it was argued that the ban caused irreparable harm by way of loss of jobs and financial investments and reputation of the Respondent company. [para. 10]
The Amicus Curaie submitted that the Information Technology Act, 2002, read with the Rules and Regulations were comprehensive enough to address the issues at hand. Reliance was placed on Sections 67(A) and 69(A) and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and the Information Technology (Intermediaries Guidelines), Rules, 2011 to emphasize that adequate machinery was in place to deal with the infringing intermediaries who failed to act or respond to a complaint or request regarding any negative or inappropriate content, that has been transmitted through its platform. [para. 5]
While the Respondent argued that the ban was violative of freedom of speech and expression under Article 19(1)(a) of the Indian Constitution, the Court without deliberating on this issue, gave a preliminary opinion that rights of an intermediary such as TikTok who created platforms for commercial purpose could not be sheltered under Article 19(1)(a) of the Indian Constitution.
The Court considered the reply affidavits filed by Tik Tok and Byte Dance as an undertaking to ensure that any negative and inappropriate content would be filtered. In the event of any violation of the undertaking, the Respondents would be held liable in contempt of Court. [para 13]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The final decision of the High Court is in consonance with the statutory principles of intermediary liability as given u/S. 79 of the Information Technology Act, read with the rules. A blanket ban on the app would be legally untenable in view of the safe harbour principle expounded by the Supreme Court of India in Shreya Singhal v Union of India (2015) 5 SCC 1, whereby intermediaries stand protected until they fail to oblige to a take-down notice issued by a government authority or by order of a court.
It is worth considering that the ban imposed raised certain concerns with respect to the proportionality of the order. Therefore, vacating the ban was in consonance with the right to freedom of expression. However, it remains to be seen how the Court will deal with issues of balancing the interests of protection of users and the safety and privacy of children. The Court may also consider the need for a legislation to protect the privacy of children online on the lines of the United States Children’s Online Privacy Protection Act.
In its final outcome, the Court would have to consider guidelines which precisely identify the content sought to be removed and provide for adequate safeguards to prevent over-censorship by the intermediary.
 Shreya Singhal v Union of India, para. 121, 122 (2015) 5 SCC 1.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision, arising out of the division bench of the Madurai bench of the Madras High Court, establishes a binding precedent for all lower courts throughout Tamil Nadu. It has a persuasive precedent for all other courts. However, as the present decision is only an interim order, the same will ultimately be subject to the final decision of the High Court in the writ petition.
Let us know if you notice errors or if the case analysis needs revision.