Devolution of Internet Freedom in India: The Compelling Instance of Tik Tok Ban

Who could have imagined that one’s fingertips would be the key to the landscapes of knowledge, creativity, innovation and commerce? The internet has turned out to be a fulcrum of news and information that has emancipated the individuals from the shackles of limited access to knowledge. It has empowered an individual from sharing information with any person even in the remote region of the world to retrenching time by providing an escape from long queues for payment of bills. Internet is the conglomerate metaphor of Article 14, Article 19 and Article 21 of the Indian constitution and has especially, posed to be the force multiplier of the freedom for the citizens of India. But, on contrary it has rather become a tool for the government to filch our right to freedom of expression in disguise of socialist democracy by censoring the data over the internet and thus, resulting into the devolution of our Internet freedom.

“According to Freedom House in 2017, India scored 41 out of 100 on its Internet Freedom Score despite the Supreme Court’s landmark judgement in August 2017 which considered privacy as a fundamental right of Indians.”

India guarantees not only freedom of speech and expression under Article 19 of the Constitution of India but also reserves the power to impose restrictions in the interests of national sovereignty, state security, foreign relations, public order, decency, and morality. Each form of media whether print, film, or television is governed by its own regulatory body. For example, print media is regulated by a press and government official’s board, Bollywood films are regulated by a board appointed by the government. The disinformation and agitprop have been the major factors to mislead the public. To promote the discontinuation of the same, the largest messaging app ‘WhatsApp’ came up with an ad campaign educating Indians and narrating the consequences of the spread of rumours. The violence meted out due to such disinformation has compelled the government to censor the content. The report of “Freedom On Net 2018” suggests that the undemocratic forces in society which may include government encourages such manipulation of data.

The WhatsApp was asked to decode their end to end encryption which would be prone to censorship. The said ad campaign came up due to the government’s mandate to regulate such messages otherwise even WhatsApp might have met the same fate as the Facebook who did not give in to the demands of the government and was slammed with two notices over its failure for the same.

The assortment of personal data are violating the norms of privacy enshrined under Article 21 of the Constitution of India, the Facebook fiasco in Cambridge Analytica scandal proves to be the perfect example for the same where the privacy of the 87 million users was distorted and was exploited for the political purposes.

Even, the IT department of India issued a notice to the Facebook seeking answers regarding the privacy of Indian data on the platform, providing a reason for the interference of the government and scrutinising the abuse of data if any and craved to know the necessary steps taken by Facebook to thwart the abuse of data.

Adrian Shahbaz, the Freedom House’s research director for technology and democracy has said that if the internet can be used to destabilize dictatorship then it can also be used for disrupting democracies.

Ban of TIK-TOK App

The unsurpassed incident of devolution of internet freedom that made the headlines of the news channel is the recent ban of Tik-Tok App by the Indian Courts. The most loved 15 seconds video making app was in the highlights recently when the Indian courts banned the App due to the allegation of indecent content that was being shared on the platform.

It all commenced when the Information technology minister of Tamil Nadu, M Manikandan showed interest in seeking the centre’s help for banning the Tik — Tok App with the belief of degrading the culture of the state and posing an obstacle in maintaining the law and order of the state. This was followed by the death of a college student who rammed his motorcycle while making a video on the App.

It is then the advocate and the social activist Muthu Kumar filed a petition to ban the App for its pornographic content and triggering paedophiles in Madras High court on 1st April 2019. In addition, the App was alleged to promote degraded culture and disseminating explicit and disturbing content. The court passed an ex-parte interim order without letting the ByteDance (Company that own Tik-Tok) present their arguments and ordered the government to proscribe the app download. It also instructed that video made through the app should not be broadcasted by the media and inquired the government about the enactment of legislation related to the protection of online privacy of a child. In consonance of the orders, the Central Government directed Google and Apple to pull down the app from the Google store and ios respectively. This resulted in a huge loss to the parent company of the App. The ban came as a blow to all the Indian social media industry as that would imply that the content of the platforms will be susceptible to the legal scrutiny which would recurrently regulate the data.

The parent company of the App then appealed to the Supreme Court requesting for the stay order on the Madras High Court’s order contending that the high court’s order infringes their right of freedom of expression and speech. The Supreme Court rejected the petition of the company and decided to wait until the Madras High Court hears the case on 16th April’2019. The App after the Madras High Court’s order had already removed about 6 million videos that were in conflict with the guidelines of the Community. The High Court adjourned the proceedings to 24th April 2019. This date was also the ultimatum given by the Supreme Court to the High Court to hear the matter in contrary to which the order given by the High court would stand dismissed. The Madras High Court eventually reversed the decision of ban by observing the absence of any legislation that will protect a child’s privacy in India but has directed the company to create a secure environment by administering their community rules in the benefit and safety of the young demographic of the country. The parent company, in response, has assured to enhance its security features.

Internet Freedom Foundation in the above case was in the backing of the App where it expressed the apprehensions on devolution of internet freedom through its letter to MEITY. Tagging ban as a disproportionate reaction which violates the fundamental right of speech and expression and the principle laid down in the case of Shreya Singhal. The foundation hadn’t asked to turn a blind eye towards the potential threats but is urging to adopt rights-respecting stand against App Bans and commence a transparent consultation process.

Internet Censorship in India

This trend of judicial censorship is amounting to be an additional factor restricting the freedom of the Internet where the exercise of power by the judiciary is not in accordance with the constitution as pointed out by Gautam Bhatia. The online censorship section takes a gander at intermediary risk and the issue of state and corporate censorship chiefly by means of takedown demands and sifting and blocking policies. The criminalisation of online speech and expression concept covers the prosecution of Indian residents who post content on the net, including via web-based networking media. Internet censorship is done by both central and state governments. The Domain Name System sifting and educating service users in better usage is an active scheme and government policy to regulate and block access to Internet content on a big scale.

Vishal Dadlani v. The State of Haryana came as a quashing petition in the Punjab & Haryana High Court. FIRs had been registered against Vishal Dadlani and Tehseen Poonawala under Sections 153A (promoting enmity between classes), 295A (hurting religious sentiments), and 509 (insulting the modesty of a woman) of the IPC, and 66E (publishing images of private body parts) of the Information Technology Act, 2000. Therefore, the High Court made the quashing of the FIRs optional upon both petitioners paying Rs. 10 lakhs as costs. The High court in its judgement said that “If the contribution made by the petitioners towards poor people is compared to the contribution made by Jain Muni Tarun Sagar, it is apparent that the petitioners have played mischief to gain publicity without having much to their credit. In recent years, the country has witnessed large scale violent protest on incitement made by using the social media platform, thereby, causing extensive damage to public property. However, the preaching’s of Jain Muni Tarun Sagar about non-violence, sacrifices and forgiveness, has avoided repetition of such as a protest. Therefore, it would be appropriate to impose the costs of 10 lacs each on the petitioner — Vishal Dadlani and the petitioner — Tehseen Poonawala, so that in future they may not mock at any head of a religious sect, just to gain publicity on social media like Twitter. (p. 38)”.

The judiciary is the new entrant that has taken its own jurisdiction to restrict internet freedom but the perennial and constant factor has been the government. India has scored 43 out of 100 in Freedom of the Net index and was declared as partly free. The freedom of the Internet has declined due to the internet shutdowns and burgeoning disinformation. The government shuts down the internet access during the outbreak of violence on the pretext of halting the spread of hoax news when they might need it the most as to kill the false information that instigated the violence.

The question is — does the shutdowns really helps to vanish off the rumours? The answer is in negative and shutdowns do not help in hindering the circulation of rumours rather the internet shut down fulfils the rooted intention of the government to gain control over the political narratives and conform to the traditional forms of political control. This not only overpowers one’s right to freedom of speech and expression but also deny them access to information. The government in a mask of protection of citizens or to prevent violence may abuse their power and suppress the voices of the citizens who by their right of peaceful assembly are initiating changes in the structure. Thus, seizing the right of the citizen of peaceful protests.

The government keeps scrutiny on all the data on the internet, directly infringing our fundamental right to privacy. The Indian government has even permitted ten intelligence agencies to monitor and decrypt any data on any computer, legalising the invasion of the executive in the personal life of an individual.

If the government objective is only to protect us wouldn’t that be done through a search warrant as they are invading into our personal things (information) through the surveillance mechanism? The problem is that the evolution of the internet will walk proportionately with the devolution of the freedom of the internet with the constant interference of government and the scrutiny of the judiciary. The threat of leakage and exploitation of our personal information will always be circumventing an individual eventually transgressing him of his constitutional rights. In the year 2006, the government of India ordered the blocking of 17 websites. Initial implementation issues led to these domains being blocked completely. Access to sites on these domains other than those specifically banned was restored by most ISPs after some time.

Somewhere in 18 and 21 August 2012 the Government of India requested in excess of 300 explicit URLs blocked. The blocked articles, records, gatherings, and recordings were said to contain provocative content with invented details related to Assam brutality and apparently advancing the North East mass migration. These particular URLs incorporate the domains of Google Plus, Facebook, BlogSpot, Twitter, WordPress, Wikipedia, Times of India, YouTube, and other websites.

Indian Authorities Must Follow Following Recommendation To End Internet Freedom Devolution

• Revise takedown systems, so requests for online content to be expelled don’t have any significant expression of assessments or content in the interest of the public, so not to undermine freedom of expression;

• Take a better record of the right to privacy and end unwarranted digital interruptions and obstruction with citizens’ online interchanges;

• Stop issuing takedown demands without court orders, and undeniably normal procedure;

• Reform IT Act arrangements 66A and 79 and takedown methodology so content creators are notified and offered the chance to claim takedown requests before restriction happens;

• Maintain their help for a multistakeholder way to deal with worldwide web governance.

• Stop arraigning Indian citizens who express legitimate assessments in online discussions, posts and discussions.

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