Author-Aditi Goyal, [NALSAR University of Law, Hyderabad]
The Madras High Court has cautioned TikTok management that if it violates its undertakings to sift negative and obscene or inappropriate materials, it can amount to contempt of court.
TikTok is a media app used for sharing and creating small videos and has been gaining huge popularity lately.
The division bench comprised Justice SS Sundar and Justice N. Kirubakaran who vacated the order after looking at the affidavit which was documented by TikTok emphasizing the safety features extended by them. The measured taken up by them were reproduced in the order. TikTok stated that there exist automatic tools which are industry standard and can find out pornographic content that has been posted and can immediately remove it.
They said that it possesses take-down mechanism which include artificial intelligence powered algorithms which can find out content that is illegal or violates any law like the Section 66E of the Information Technology Act, 2000 or Section 354C of the Indian Penal Code, 1860.
Section 66E of the IT Act, 2000 is about the punishment for the violation of privacy and states that,
whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both.
Section 354C of the IPC, 1860 is about the punishment for voyeurism which is the practice of getting sexual pleasure by watching others when they are engaged in sexual activities.
The Company erased six million videos with doubtful contents after the bench had passed an order on April 3, 2019. The bench observed, “Though it is admitted that this is possible mischief and irreparable damage that may be caused to innocent children and women cannot be ruled out, taking note of the safety features projected by the 9th respondent and the statutory protection and remedies available under the Statute, the interim order granted by this Court on 03.04.2019 is vacated.”
Bytedance (India) Techinology Pvt. Ltd.,, the China-based parent company which owns TikTok, however raised the problem of fundamental right of speech and expression. The Court subsequently stated that the rights of the creator of a platform for users for commercial purposes that is, the intermediary, may not take shelter of Article 19(1)(a) of the Indian Constitution.
Article 19(1)(a) guarantees to all its citizens the right to freedom of speech and expression.
The Court, while vacating the order, said that its endeavour is to safeguard the people in the cyberspace turning into victims, women and children in particular. The Court added that any technological innovation should be used for activities of the commercial nature and not for committing offences that violates the right of people.
The Bench added that, “The Court is concerned about several incidents of women and children using cyber space becoming victims reported in newspapers and social media. This Court is also aware of the fact that the millions of users are denied their right to have access to the said platform which also promises several good things.”
The Bench now posted the matter for the second week of June.
On April 3, 2019, the Madurai Bench had passed an ex-parte order which directed the Government to ban TikTok as it observed that the popular media app, in view of inappropriate contents which include pornography and language being posted, is dangerous for childen.
Bytedance (India) Techinology Pvt. Ltd filed a special leave petition against the same which the Supreme Court refused to stay and directed the Madras HC to review the objections against the order.
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