Image credit: Google
On 24th April Madras High court would
decide on the plea of Bytedance, which owns TikTok regarding the much talked
about ban of the app. Tik Tok, , a nongaming app launched in 2019 has given a tough
competition in regard to its popularity to all the social media giants because
of the unique features which allows
users to create and share short videos with special effects. Teenagers and
adults in India loved the app because
unlike other social media platforms including YouTube, TikTok has simple
features to upload and publish videos. Unlike PubG however, this did not
necessarily have gaming features.
In early April, 2019, the Madurai bench of Madras High
court had in an interim order directed the government stakeholders in the State
and Centre to ban the video app TikTok as the Public Interest Litigation in
this regard emphasized that it encourages pornography and underage users are vulnerable
to be exposed to sexually explicit contents, pornography etc, which may not be
good for their mental and physical health.[1] Incidentally
the Madurai Bench of the Madras High court was the first court in India to take
suo motu cognizance in BlueWhale game
case and asked the Central government and the social media website, web
companies like Google etc to monitor what is being generated and catered to the
users through their platform.[2]
But in this case, the situation stands on a different platform: consequent to
the interim order, Google and Apple removed TikTok app from their Play Stores. Resultant, Bytedance had incurred huge loss.
But the later has now challenged this interim order on the ground that the
interim order was passed on the basis of ex parte hearing. The company had
stated that the app allows users to create videos and circulate them for fun
and amusement and it does not pose any threat to security of individuals.
Bytedance also stated that such bans are against right to speech and
expression.[3]
We can see here two important points:
First : before the governments took prohibitory actions
(like what happened for PubG ban in Gujarat, where police started arresting
those who downloaded and played PubG even after the ban order was conveyed to
the public)[4],
Web company like Google and phone and
software manufacturing company Apple had followed the mandates of S.79
(exemption of liability of intermediary in certain cases) and Rule 3 of Information technology (Intermediaries
guidelines) Rule, 2011 : specially mentionable are Rules 3(3) and 3(4) which
states as follows:
Rule 3(3) states that The intermediary shall not knowingly host or publish any information or
shall not initiate the transmission, select the receiver of transmission, and
select or modify the information contained in the transmission as specified in
sub-rule (2): provided that the following actions by an intermediary shall not
amount to hosing, publishing, editing or storing of any such information as
specified in sub-rule: (2) — (a) temporary or transient or intermediate storage
of information automatically within the computer resource as an intrinsic
feature of such computer resource, involving no exercise of any human editorial
control, for onward transmission or communication to another computer resource;
(b) removal of access to any information, data or communication link by an
intermediary after such information, data or communication link comes to the
actual knowledge of a person authorised by the intermediary pursuant to any
order or direction as per the provisions of the Act;
And Rule 3(4) of the above rule states The intermediary, on whose computer system
the information is stored or hosted or published, upon obtaining knowledge by
itself or been brought to actual knowledge by an affected person in writing or
through email signed with electronic signature about any such information as
mentioned in sub-rule (2) above, shall
act within thirty six hours and where applicable, work with user or owner
of such information to disable such information that is in contravention of
sub-rule (2). Further the intermediary
shall preserve such information and associated records for at least ninety days
for investigation purposes.
These companies apparently did not want to invite any
more troubles like the past when they were repeatedly called by the court to
explain why they had not taken any action to block and ban contents and
materials victimizing children which are regularly shared through their
platforms.
Second:
Bytedance, the
parent company of TikTok has alleged that they were not heard by the court
before pronouncing the ban order. Apparently, they may become the first web company
to stress upon the point as why they should be banned when they have their
flagging system and they do take care of the contents that are flagged. This
case would make a history in India where the court has taken a decision
influenced by the happenings of the past, and the concerned web company
promises to break the glass ceiling because they know this is not the end. While
many information as how to use (activate/download) TikTok without Google/Apple
Play stores have started surfacing on internet,[5] my
concern is not how the app may or may not be downloaded legally or illegally.
Exposing children to
pornography, using women as items of sexual gratification, grooming, creating “dangerous
contents” which may cause damage to public health, online victimization of
women and children etc would not stop if one video creating and sharing app is
banned. In that case, the courts must also consider picking up social media
giants Facebook, Twitter, YouTube, Instagram etc, and search engines like
Google for banning them because of their constant failure to monitor misogynist,
sexist, child abusive contents. All social media companies including YouTube
have data mined several images, contents and marked them as adult specific. Several
videos are not available unless the users verify their age. But how will you
search the needle in the hey stack? The courts could not yet make strict
regulations for virtual age verification by the web companies. The web
companies (hosted in US and other countries) are confused about the law
relating to pornography because India does not have any focused law defining pornography
still now. Further, the web companies also do not accept all contents (which
are alleged to be porn as per Indian understanding) as offensive because the
ever expanding free speech and expression jurisprudence of the US does not
allow the web companies to take down the contents unless it is gravely
threatening to the physical and virtual privacy and security of the person concerned or
damages the reputation of the woman (in case the victim is a woman). Children can
still be exposed to online dangers through Facebook, Instagram or YouTube.
Women are continued to be victimized through all pockets of internet.
As such, there may be practically
no solution for this and ban would encourage more law breaking. Google and
Apple had already shown that they are willing to follow the local laws (or
rather, not to fall in any legal tangles regarding web service providers
liability). It is expected that India creates focused laws to address different
emerging and existing types of online victimization and the same are implemented
in proper way. Otherwise, the orders of banning may lead to ground ZERO.
Please note : Do not violate copyright of this blog.
If you would like to use information provided in this blog for your own
assignment/writeup/project/blog/article, please cite it as “Halder D. (2019), "The
TikTok ban : Why it may fail to prevent online victimization of women” 23rd April, 2019 , published in
http://debaraticyberspace.blogspot.com
[1] For more, see J.Sam Daniel (2019).
Ban TikTok, Its encouraging pornography : Madras High court to Centre.
Published in NDTV on April 4, 2019. URL https://www.ndtv.com/india-news/madras-high-court-directs-centre-to-prohibit-downloading-of-tik-tok-app-2017482
Accessed on 12.04.2019
[2] Halder,
D.(2018) The #Bluewhale challenge to the Indian judiciary: A
critical analysis of the response of the Indian higher
judiciary to risky
online contents with special reference to Bluewhale
Suicide game. In
Sourdin Tania & Zariski Archie (eds.), The
responsive judges. USA:Springer ISBN no.
978-981-13-1022-5 pp 259-276.
[3] See Live law news network (2019). TikTok Ban
: SC Says Ban Will Stand Lifted If Madras HC Fails To Decide On Interim Order
By April 24. Available @https://www.livelaw.in/top-stories/tiktok-ban-sc-says-ban-will-stand-lifted-if-madras-hc-fails-to-decide-on-interim-order-by-april-24-144438
. Publshed in on 22nd April, 2019. Accessed on 23rd April, 2019
[4] See
Ahaskar Abhijit (2019). Why playing PUBG Mobile can get you arrested in Gujarat.
Published in https://www.livemint.com/news/india/why-playing-pubg-mobile-can-get-you-arrested-in-gujarat-1552849965539.html
on 18th March, 2019. Accessed on 12.04.2019
[5] For example, see SC hearing on
TikTok: Why it is difficult to ban the app in India. Published in https://www.businesstoday.in/technology/internet/tiktok-ban-after-madras-hc-decision-reality-banned-apps-tiktok-pubg/story/339286.html
on April 22, 2019. Accessed on
22.04.2019
