On April 3, 2019, the Madurai Bench of the Madras High Court issued an order (the court order is attached below) prohibiting downloading the TikTok mobile app. The bench comprising Justices N Kirubakaran and SS Sundar has also restrained the media from telecasting videos made on the app and has asked the Central Government whether it will enact a statute similar to the United State’s Children’s Online Privacy Protection Act. The public interest litigation [Writ Petition (MD) no. 7855 of 2019] was filed by one S. Muthukumar against the Telecom Regulatory Authority of India, Ministry of Communications, District Collector (Madurai District), Commissioner of Police (Madurai) and the Business Head of TikTok.
Citing misuse of the app, the petitioner prayed (a copy of the petition is attached below) for issuance of a writ of mandamus and banning the TikTok mobile application. The petitioner highlighted widespread circulation of pornography, exposure of children to disturbing content and their susceptibility to paedophiles, degrading culture, social stigma and medical health issues between teens, as reasons for filing the petition. The petition sought to direct the attention of the court to Tamil Nadu State Information Technology Minister’s statement before the State Assembly, urging the Central Government to ban the TikTok app. To emphasize the instances of menace created by various apps, the petitioner cited 159 deaths in India due to incidents involving selfies. The petitioner also mentioned the steps taken by countries such as Indonesia which blocked the TikTok app for circulation of pornographic and blasphemous content as well as the USD 5.7 million fine imposed on the app by the United States under its Children’s Online Privacy Protection Act (COPPA). The petition doesn’t quote any legal provision and it simply relies on conjecture for asking the court to ban the TikTok app.
A quick reading of the order indicates that the court has not relied on prevailing judicial or legal principles on free speech, censorship and intermediary liability in arriving at the said order. Based on one-sided averments, the court has taken recourse to social morality and endorsed the remarkably overbroad language of the petition which says that the app promotes “degrading culture and encourages pornography besides causing pedophiles and explicit disturbing content, social stigma and medical health issues between teens.” The bench goes on to assert that “nobody can be pranked or shocked or being made a subject of mockery by any third party and it would amount to violation of privacy”. The court further affirmed that addictive apps like TikTok spoil the future and the minds of youngsters.
TikTok, an online intermediary that provides a platform for users to create and share short videos, enjoys safe-harbour protection under Section 79 of the Information Technology Act, 2000 (Section 79 provides intermediary platforms like TikTok protection against third-party content on their platforms). The Madras High Court has completely disregarded the dictum of the Supreme Court in the case of Shreya Singhal v. Union of India, wherein the apex court had held that intermediaries enjoy a safe-harbour protection for third-party user generated content on their platforms. The court had also stated that intermediaries are neutral platforms that cannot judge the legitimacy of the content posted on their website(s).
The order violates the fundamental right of free speech as enshrined under Article 19(1)(a) of the Constitution of India. Several judicial pronouncements such as Romesh Thapar v. State of Madras[fn] S.C.R 594 at 602[/fn], Bennett Coleman & Co. v. Union of India[fn] 2 S.C.R 757 at 829[/fn], and Shreya Singhal v. Union of India[fn]AIR 2015 SC 1523[/fn] have held that freedom of speech and expression is the bedrock of democracy. The grounds for prohibiting the use of the TikTok app does not fall within the purview of Article 19(2) (which provides for constitutional restrictions on free speech), but instead seems to be based on a skewed sense of morality, which cannot be a guiding principle for constitutional interpretation. In the case of Navtej Singh Johar v. Union of India, the Supreme Court had laid down that constitutional morality trumps social morality and ‘it is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism.’
The gag order on media is a classic example of judicial pre-censorship and is against the judgment of the Supreme Court on the issue. The position in common law, as espoused by William Blackstone has been that ‘the liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications.’ In 2017, a bench of Justices Khehar and D.Y Chandrachud clarified that pre-broadcast or pre-publication regulation of content was not in the court’s domain.[fn]Common Cause v. Union of India[/fn], The court also said that the role of a court or a statutory authority will come in only after a complaint is levelled against a telecast or publication.
In the case of R. Rajagopal v. State of Tamil Nadu, the court had held that there is no law that authorizes prior restraint. Citing New York Times v. United States, the court observed that “any system of prior restraints of (freedom of) expression comes to this court bearing a heavy presumption against its constitutional validity.”
Though the Madras High court has urged the Government of India to enact a statute like the United State’s COPPA for protecting online privacy of children, it has ultimately banned further download of the application. The court’s order prohibiting the use of the app far exceeds a “proportionate regulatory response” to protect children’s data, as recommended by the Justice B.N.Srikrishna Committee.
TikTok has challenged the order of the Madras High Court before the Supreme Court of India.
The petition and a copy of the order are attached below: