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Introduction:

TikTok is a Chinese video-sharing social interacting facility maintained by ByteDance, a Beijing-based cyberspace technology company that originated in 2012 through Zhang Yiming. It is handed to generate short dance, lip-sync, comedy and talent clips. TikTok is a widespread application that brings exciting and exclusive special effects to generate pleasing short length clips. Teenagers have a proportion awfully crazy for this tender. This has led to obsession in them and a few other topics too.

What made the news?

The Madras High Court had delivered an interim ban on TikTok after it felt that the platform hosted pornographic content.

  • The Court mentioned that it was anxious about the content distressing children and until a conclusion was stretched, the Court issued an impermanent ban on the application.
  • In answer, Ministry of Electronics and Information Technology (MeitY) dispensed an order to Google and Apple to eliminate the application from the official app stores. The government shadowed the court’s order.

When the issue was raised before the Supreme Court, it passed out a hearing on April 22 where it enquired the Madras High Court to take a verdict on the provisional ban till April 24. The Supreme Court held that the prohibition would be elevated if the High Court didn’t give any verdict. Furthermore, the Supreme Court didn’t pass any decision on the issue.

Finally, the Madras High Court detached the interim ban as the bench specified that it was only involved in shielding children from cybercriminals. While the interim restriction has been detached from the application, the case is still undergoing. The Court has only detached the interim ban for the period. If the event weights, the application may be banned once again.[i]

Freedom of Speech and Expression:

Any account of freedom of expression that does not ponder how this ban will affect already marginalized communities is deceitful at best. Since applications that facilitate a platform for expression and permit for the broadcasting of information are shielded by Art.19(1)(a) of the Indian Constitution[ii], a constitutional challenge to the ban is probable.

Lately, the Kerala High Court in a case recognized that snooping with someone’s access to the internet violates, inter alia, their fundamental right to privacy.

Afterward, the Supreme Court in Anuradha Bhasin v. Union of India[iii] noticed that an indeterminate suspension of the internet could sum to the exploitation of power. However, it fell petite of repeating the situation laid down by the Kerala High Court.

However, since the verdict in Faheema Shirin[iv] has not been domineered subsequently, it holds massive persuasive consequences and should appropriately be assumed to be an accurate position in law. Presuming therefore that there does exist freedom of access to the internet under Article 19, it becomes vital to assess the effect of geoblock on Chinese Applications.

Impact: Is the Geoblock unfair and Arbitrary?

The ban has been imposed under Section 69A of the Information Technology Act, 2000 (“Power to issue directions for blocking for public access of any information through any computer resource”): “Where the Central Government or any of its officers especially powered by it, is pleased that it is necessary or convenient so to do, in the interest of sovereignty and integrity of India, defence of India, safekeeping of the State, friendly relationships with foreign States or public order or for avoiding provocation to the commission of any cognizable offense relating to above, it may by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information produced, transmitted, received, warehoused or hosted in any computer reserve.”[v]

Rule 9 of the Blocking Rules 2009, authorizes the Government to levy a geoblock (such as in this case) without providing a former opportunity to be heard to an online intermediary (i.e. an entity providing an online service, e.g. a Chinese app). Since TikTok and other intermediaries (e.g. internet service providers) have been presented a post-decisional hearing, it appears as if the basis of the geoblock was rule 9[vi]. This states that the Government must have presumed the survival of an ‘emergency’ to levy the geoblock. 

However, in Anuradha Bhasin v. Union of India &Ors., the Indian Supreme Court (para  81) acknowledged that Section 69A recited with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 license the Indian Government to impose barely tailored boundaries on access to content.

The Court further recognized that in Shreya Singhal v. Union of India &Ors[vii]., the Supreme Court had approved the constitutionality of section 69A. The Court (in para 111) acknowledged that the directions are not unconstitutional. 

Necessity:

The burden to prove that this was the minimum restraining measure is of course on the Government, these facts specify the range to which the move could be measured extreme. The Government would have to prove that its alleged objective could not have been attained through less restraining means.

The government would have to clarify why the scope of the restriction was not slight enough to only necessitate inter alia government, judicial, or army officers to refrain from operating the application. Since these officials naturally are involved in handling official confidences, the restriction could have been narrowly personalized in this manner. This has in fact convincingly been done in the United States where military personnel was guided against using the TikTok by the Defence Department[viii]


References:

[i]The Economic Times, 24 April 2019.

[ii] The Constitution of India,  1949

[iii]2019 SCC Online SC 1725.

[iv] 2019(2) KHC 220.

[v](Section 69(A) Information Technology Act , 2000 .

[vi] (Rule 9, Blocking Rules , 2009 ) Information Technology Act , 2000.

[vii] (2013) 12 S.C.C .73 .

[viii] The Indian Express ,10 July 2020

Written by Anshu R Shekhawat of Banasthali Vidyapith

Edited by Tushar Nigam

Post Author: lawgical forum

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