TikTok ban in India: SC order in line with past free speech decisions, but social media apps should self-regulate proactively

Supreme Court has directed the Madras High Court to pass an interim order on the ban by 24 April, failing which the ban on TikTok will be lifted

TikTok has been banned from being downloaded through the Google Play Store or Apple App Store in India from 18 April 2019. At a plea hearing today at the Supreme Court, TikTok parent company ByteDance told the Supreme Court that it is suffering losses worth crores due to the ban.

In the hearing on TikTok ban in India, the Supreme Court has directed the Madras High Court to pass an interim order on the ban by 24 April. The court says that if the High Court fails to decide on the interim relief by then, the order will stand vacated. Which means, if the order isn't passed by 24 April by the High Court, the ban on TikTok app will be overturned. 

Earlier the Madras High Court (HC) on a plea filed by advocate and social activist Muthu Kumar on 1 April 2019 had held that TikTok be banned in India for its pornographic content and its potential of exposing children to sexual predators.

TikTok ban in India: SC order in line with past free speech decisions, but social media apps should self-regulate proactively

TikTok

According to Dr Pavan Duggal, advocate, Supreme Court (SC) of India, “By passing this order, the SC has retreated the continuity of thought process. The SC has sent it to the Madras HC because the HC is seized of the matter in its totality. Clearly, the SC wants the HC to examine the matter keeping all the perspectives. In today’s scenario, merely banning or blocking of a mobile application may not work. Recently there has been news that on one of the API download website, the download to TikTok has increased 10-15 times in India after the ban. So there is a massive increase in people’s curiosity. Blocking or banning is an antiquated phenomenon, it does not have any place in today’s scenario. So much of indirect ways are available online. Only by banning a mobile application or website one is contributing to the increase in its traffic and popularity. Indians have a propensity to explore banned or blocked content. Hopefully, now the Madras HC will see the matter holistically, taking in considerations that there are various stakeholders and apply an order which will help India but at the same time it isn't unworkable. We should protect our children but at the same time arrive at a balance on the use of technology and the balancing of rights.”

Na. Vijayashankar (Naavi), chairman at the Foundation of Data Protection Professionals in India (FDPPI) and a senior lawyer from Chennai mentioned, “SC in the past has taken many consistent stands on freedom of expression. Earlier, they have gone ahead and said that the freedom of expression is the most sacrosanct thing and they had banned section 66A of IT Act and now I think they are caught in these contradictions. Presently they have just postponed the problem.”

But freedom of expression in the Indian context comes with some conditions. Just because Freedom of Expression is a fundamental right, it does not mean that social media websites can do anything, especially with respect to pornographic content and its potential of exposing children to sexual predators.

Duggal further added, “Till now, these websites had been hiding behind the Supreme Court judgment of Shreya Singhal vs Union of India, where they claimed that they are mute spectators and cannot remove any content till such a time that they are presented with a court order or an order from a governmental agency. I think that approach has to give way to more proactive approaches on the application at the website level. They have to comply with the IT Act and rules made thereunder. Whether they are physically operating in India or not, so long as their services are made available in computer systems physically available in India, they have to abide by the law of land. India is a big market and service providers have to be sensitive to the needs of the government and also towards the expectations of the users. Self-regulation is important if they do not want government intervention.”

Naavi added, “Ultimately the benefit of the society supersedes everything including the law as it exists. One view is that social media companies are not taking public interest into consideration, they are concerned with their commercial interest only. It is not to say that social media companies are fond of Freedom of Speech. What we are seeing now is the clash of the judiciary, which is there to protect the social interest and on the other hand the commercial interests which are hidden behind freedom of speech, privacy etc. SC cannot escape as it has to find a balance between both these extremes. Social media, if it wants to avoid interference of the court, has to self-regulate more strongly. Social media, by its own arrogance and not being flexible enough to work for societal benefits, is opening itself for criticism. For some time they will survive but in future, they may have to bend or break."

But such one-sided bans without giving an opportunity to all stakeholders will impact the FDI also as per IAMAI. It has already been reported that ByteDance the parent company of TikTok app plans to invest $1 billion in the country over the next three years. The arbitrary order by a HC will set a precedent wherein all intermediaries will be affected.

In the current case, the company could have been given some time to take off all objectionable content. The company already has proactively gone and removed such content. It uses a machine learning tool that filters content and then it goes to a content moderation team. So to that extent, due diligence has been done by the company.

Anyhow, now all eyes are on Madras HC which deals with the matter on 24 April 2019.

To read more about the TikTok Ban in India debate, read out complete coverage:

TikTok ban in India: A timeline of events that led to the app's ban in the country

TikTok ban in India: SC directs Madras HC to pass interim order by 24 April, ban to be lifted otherwise

TikTok and PUBG ban in India: Is it even constitutional? Stong regulations needed over arbitrary measures to address issue

TikTok ban in India: Uncertain future for app looms; rise in content regulation could impact many others

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