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Madras HC may hold TikTok in contempt if it fails to moderate “negative”, “inappropriate” or “obscene” content

Screenshots from TikTok App

On April 24, the Madras High Court lifted its interim ban on video-sharing app TikTok, with the condition that pornographic videos would not be uploaded on the app. An order of the court’s order is now public; it states that the court considers TikTok submissions to it an undertaking that any “negative and inappropriate or obscene materials would be filtered and if any violation is found later, this Court would seriously view
it as contempt of Court.”

[Nikhil adds: The order however does not define what may be construed as negative, inappropriate or obscene. These words are vague and open to interpretation. Additionally, Tiktok seems to have given an assurance of due diligence, as required by law, and not a guarantee of taking down content. Safe harbor provisions should still apply to them.]

The High Court said it endeavors to safeguard people, especially women and children, and its aware that “mischief and irreparable damage” via the platform “cannot be ruled out”. However, taking note of the TikTok’s safety features and available statutory remedies and protections, it vacated the interim ban on the app. Any tech innovation should be used for “constructive activities and not be used for commission of offenses”, the court stated, while lifting the ban. Here are the justifications for lifting the ban:

(See a copy of the court’s order at the bottom)

1. TikTok is a platform: According to the order, the court is “convinced” that TikTok is a platform which does not have any control over its users, and that it filters inappropriate, obscene, and negative content using machine and human moderation.

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2. Indian law already knows how to deal with intermediaries which fail to act responsibly: Amicus curiae Arvind P. Datar said the current provisions under the IT Act and Rules provide an adequate mechanism to deal with intermediaries who fail to act to complaints regarding negative or inappropriate content on the platform. These provisions are available under:

  • IT Act, 2002, particularly under Sections 67(A) – relating to punishment for publishing or transmitting sexually explicit material in electronic form, and Section 69(A), which gives the central government power to block access to website
  • Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, and
  • Information Technology (Intermediary Guidelines) Rules, 2011.

3. TikTok is being responsible about its duties, via content moderation and safety feature: It was noted that TikTok undertakes due diligence and treats its obligations towards user safety sincerely, in accordance with the IT Act 2000 and its rules. TikTok also has proactive takedown measures which filters inappropriate, obscene, and negative content using machine and human moderation. This filtering includes illegal content which violates Section Section 354C of the IPC (voyeurism) and Section 66E of the IT Act, 2000 (violating the privacy of a person by sharing an image). It also noted that after the Madras HC interim ban order, TikTok removed 6 million videos which were inappropriate or violated the app’s community guidelines.

Accordingly, the Respondent Company [TikTok] takes extreme and caution that only such content is shared and displaced,which is lawful, educational and primarily humorous innature, without attracting the prohibition of any legal provisions or violating the right to privacy of any user.

4. The court is concerned about women and children being vulnerable: The court said it was seriously concerned over the possibility of women and children being sexually abused by video sharing and that some predators are exploiting them. Advocate MC Swamy said children and teenagers, being vulnerable to pornography, are sharing their personal videos without considering possible consequences causing permanent damage and social stigma. TikTok has agreed with the concern and submitted that the Government should be keen in taking appropriate action in the larger public interest.

5. TikTok has introduced multiple safety features, since January 2019: Although the court order noted that TikTok has been updating safety features since launch in India, its own admission shows that the first feature was introduced in January, followed through till March 2019 (see all of TikTok’s safety features below in the next section, the court considered these to lift the ban).

Another few things to note about TikTok:

1. Job losses and financial loss: TikTok counsel Isaac Mohan said the court must consider irreparable harm by way of loss of jobs and financial investments and reputation suffered by the company and vacate the interim order. TikTok’s owner Bytedance had earlier said the interim ban caused the company losses of $500,000 a day and put more than 250 jobs at risk.

2. Madras HC said that TikTok misrepesented the case to the Supreme Court: It also cited the Supreme Court April 22 order that the ban would be vacated should the Madras HC fail to decide on the interim ban by April 24. But, the court said that TikTok filed the reply affidavit only on April 24, and had not filed any counter-affidavit or petition to vacate the interim order before April 22, a fact which TikTok did not clarify to the Supreme Court. TikTok misrepresented the case to the SC, which is why it passed the vacating order, per the high court’s order.

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TikTok’s safety features

TikTok’s detailed reply highlighted the safety features deployed by them:

  1. User controls over privacy: Tik allows users to protect themselves by:
    • Allowing users to make their account private so they can restrict content to approved followers only.
    • Blocking other users
    • Allowing users to filter comments by keywords (Hindi, English)
    • Blocking a number of potentially problematic terms from search and discovery.
    • Disabling the ability to receive private messages from other users.
    • Making an individual video post private.
    • Shutting down the React / Duet functions by video (the React/Duet functions are in-app features that allow users to create new videos based on existing videos onTikTok).
    • Disabling the downloading of a video by another user
    • Pop-up warnings for high-risk content.
  2. Reporting feature: Users can instantly report any objectionable content in-app and have the content in an average response time of 15 minutes (though law provides a window of 36hours)
  3. Grievance Officer located in India appointed as per IT Act to handle user complaints, and can be directed to conduct an enquiry
  4. Contact channel with local government: TikTok has set up gov@tiktok.com, a private, dedicated channel for local government inquiries. “We prioritize content take down requests from the government authorities including law enforcement and expeditiously remove content that violates our Community Guidelines or local laws”
  5. Content moderation using AI and humans: TikTok content moderation team is located in India and is proficient in 16 Indian languages; content is filtered using AI at first level and human moderators at the next three levels
  6. Automated tools that can detect pornography content that might be posted and immediately remove the same
  7. Password protected parental controls and restricted mode to enable parents and guardians to exercise supervision over the use of the app.
  8. Advance Privacy features allow users to:
    • control who they interact with on TikTok;
    • decide the visibility of their specific videos before and after posting of those videos; and
    • Control/disable comments that can be made on their videos, both before as well as after uploading of videos.
  9. Age gate for teenagers: Specific measures to curb the use of the Platform by children, including an age that only permits teenagers and above to access the platform.

Other safety features

  1. Community Guidelines: user accepted guidelines which educates users to not post, share or promote the following kinds of content: harmful or dangerous content, graphic or shocking content, discrimination or hate speech, nudity or sexual activity, child safety infringement, harassment or cyberbyllying, impersonation spam, or other misleading content, intellectual property and workplace content, and other malicious activity like virus, etc.
  2. Reporting feature: Users can instantly report any objectionable content in-app and have the content in an average response time of 15 minutes (though law provides a window of 36hours)
  3. Safety Centre in 10 Indian languages: Hindi, Gujarati, Marathi, Bengali, Punjabi, Telugu,Tamil, Kannada, Malayalam, Oriya. This centre guide users, and especially parents, through the app.
  4. Terms of use, Privacy statement, Community Guidelines and appropriate policies that are publicized to all users with regard to conduct on and usage of the platform.

Bytedance’s other app Helo took down content

Last week, Indian languages social media app Helo took down over 160,000 accounts and 5 million posts for violating its community guidelines. The company did not provid any specifics about the kinds of content it took down, how the posts violated its guidelines, or even if the content was election-related. Helo also has moderators who review, flag and takedown content in 14 Indian languages.

[embeddoc url=”https://www.medianama.com/wp-content/uploads/MadrasHC-TikTok-interim-ban-lifted-order-April24.pdf” download=”all”]

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