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Why the Madras High Court’s interim ban on enabling download of Tik Tok is worrying

The Madras High Court has asked the Indian government to ban the download of TikTok, as an interim measure, to prevent new users from using the app. It has directed that the media stop showcasing videos from TikTok, and the Government of India enact a law on the lines of Children’s Online Privacy Protection Act in the United States. At the time of filing this story, the application was still available for download on the Google Play store. This might take some time, since the government will first have to receive the order, and then order Google and/or ISPs to block the download of the application.

The order (read on LiveLaw), by Justice Kirubakaran and S. Sundar, points out four key issues seen with the application:

  • Pornography and mental health: contains “degrading culture and encouraging pornography besides causing pedophiles and explicit disturbing content, social stigma and mental health issue between teens”…”It is evident from media reports that pornography and inappropriate contents are made available on this kind of cyber applications.
  • Pranks: “majority of teens are playing pranks, gaffing around with duet videos sharing with split screen to the strangers”…”People are “making cruel humour against innocent third parties. Even television channels are also telecasting Tik Tok videos”…”Nobody can be pranked or shocked or being made as a subject of mockery by any third party and it would amount to the violation of the privacy.”
  • Potential exposure of Children to sexual predators: Children who use the application “are vulnerable and may expose them to sexual predators”…Children are exposed to strangers and there is possibility of the photographs and other private details of strangers being landed in the hands of predators or third parties”…”There is a possibility of children contacting strangers directly and luring them.”
  • Addiction: “By becoming addicted to Tik Tok App, and similar Apps, or cyber games, the future of the youngsters and mind set of the children are spoiled.”

The judgement cites instances of usage of Tik Tok being a source of issues/cases: an auto driver being arrested for posting a video of a woman in Chennai, a girl committing suicide on not being allowed to use the app, a man falling in the waterfall while trying to take a selfie.

On being contacted by MediaNama, TikTok sent us the following statement:

At TikTok, we are committed to abiding by local laws and regulations. We fully comply with the Information Technology (Intermediaries Guidelines) Rules, 2011. We are currently awaiting the official order by the Honourable High Court of Madras and once received, we will review and take appropriate action regarding this matter. Maintaining a safe and positive in-app environment at TikTok is our priority. We have robust measures to protect users against misuse, protect their privacy and digital wellbeing. This includes easy reporting mechanisms that enable users and law enforcement to report content that violates our terms of use and comprehensive Community Guidelines. In order to better coordinate with law enforcement agencies, we have appointed a Chief Nodal Officer based out of India.

MediaNama’s take

1. Why Tik Tok specifically? The issues highlighted about Tik Tok are symptomatic of issues related to the Internet as a whole too. The Internet has porn, pedophilia, disturbing content, pranks, cruelty, potential exposure of children to sexual predators, and there’s little doubt that many services are designed to be addictive. Minus the porn, that’s YouTube and Facebook took. So why is Tik Tok being singled out here? Because it’s new?

2. The ban seems to be a disproportionate act of censorship: While the usage of the app by itself has not been banned, it does still amount to a restriction on new users joining the application and expressing themselves on the application. The application is an enabler of free speech: I’ve seen people telling jokes, running quizzes, dancing, singing and lip syncing, giving tips and tricks on the platform. By not allowing new users to join the application and express themselves, new users are being censored, and disproportionately so because they’re being punished for the actions of others.

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3. Safe Harbor protections apply to Tik Tok: As a platform, Tik Tok so far enjoys protection under Section 79 of the IT Act, and the Supreme Court’s Shreya Singhal judgment on Section 79, and the platform cannot be held liable for the actions of its users, unless it doesn’t act after a court order is issued to take down the offending content.

4. Pranks are free speech too: I’ve seen pranks on Tik Tok, and it’s not clear whether all pranks on the platform are staged or genuine pranks. In any case, if someone finds the prank problematic, they have access to recourse under defamation laws (for the time being, under criminal defamation).

5. What will Google Play do? The government, and mobile operators, can only ban the download of Tik Tok in India by directing Google to do so. It’ll be interesting to see how Google reacts here: will it challenge the order in court, and protect one of the applications on the Play store, or will it do a geographical block on the app, in compliance with the application.

6. Protection of Children is covered under the Draft Data Protection Bill: India probably doesn’t need a separate act for privacy of children online. Protection of children is covered under the Draft Data Protection Bill, which is yet to be passed.

7. Tik Tok made changes for the US, for safety of children: If children are using the application, and they shouldn’t be, then that responsibility lies with parents, and not a nanny state. What the state can do, is issue warnings to better inform parents regarding what to do, and ask the platform, in case it is meant for people above a certain age only, to find ways of restricting childrens access to the app. It’s worth noting that Tik Tok recently announced a settlement with the US Federal Trade Commission, wherein the company says it has “implemented changes to accommodate younger US users in a limited, separate app experience that introduces additional safety and privacy protections designed specifically for this audience.” The additional app experience “split users into age-appropriate TikTok environments, in line with FTC guidance for mixed audience apps. The new environment for younger users does not permit the sharing of personal information, and it puts extensive limitations on content and user interaction.” There’s no reason why Tik Tok shouldn’t be doing this worldwide, including for India.

7. Accessing pornography isn’t illegal in India: Accessing pornography isn’t illegal in India. Remember when the Government of India said, in response to a petition to ban pornography, said that they don’t want to do moral policing? Read this.

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This will be an interesting case to follow.

Written By

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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