New Delhi: Supreme Court has declared the right to access and use the internet as a fundamental right of children and directed the Centre to create a national database for detection of sexually explicit visual content depicting minors on digital platforms and their removal.
The top court passed the order on a plea of NGO Just Rights for Children Alliance, in which it had taken note of an alarming increase in child sexual exploitation and abuse material (CSEAM) that was being circulated on social media platforms.
A bench of justices JB Pardiwala and K Vinod Chandran, while referring to earlier decisions of the court, said that the internet is, without a doubt, the marketplace of ideas, creative expression and information, and its value is priceless, not merely in the information it holds, but in the access it affords to adults and children alike.
“In view of the foregoing, we have no hesitation in saying that the right to access and use the internet is a fundamental right of every individual under Article 21 read with Article 19(1)(a) of the Constitution. Our children, irrespective of their age, enjoy the same rights, and to deny the same altogether would be as absurd as saying children below a certain age do not have a conscience worth protecting or a freedom of speech worth expressing,” it said in its 137-page order passed October 15.
Senior advocate HS Phoolka represented the NGO, which works in the field of child sexual exploitation, child trafficking and child marriage.
The court said that its observation does not mean that there should be no age-based restrictions.
“We acknowledge that some form of safeguards are necessary for the safety of our children online and the moderation of the content accessible at their fingertips,” it said, adding that there could be a system that places greater emphasis on parental consent, guidance and oversight on the access to social media platforms by children along with a dedicated “child mode” for such accounts with measures proportionate to the object of ensuring their safety.
It clarified that nothing stated hereinabove would preclude the Union of India from restricting the access of children to specific categories of content or services that are inherently harmful to them, such as adult content websites, etc.
The court further said that the safety of our children and their freedom are not at odds with each other, and they were entitled to both.
“For many children, particularly in remote areas, it is often the only source of learning and information. Likewise for children with special needs, the internet is often the only place where they are able to find company in others like them,” it said.
The top court said the right to freedom of speech and expression under Article 19(1)(a) of the Constitution has never been understood as being confined to the right to speak alone and has always been construed to include the right to know and to receive and impart information and ideas.
“The means by which measures relating to age-based restrictions are achieved are themselves an overreach. Such processes, inevitably, always require identifying and ascertaining the age of each and every user, continuous collection and monitoring of sensitive data and an overall disproportionate risk of misuse and surveillance, the kind which finds no place within the right to privacy of our people,” it said.
The bench said the experience of other jurisdictions which have deployed such restrictions is equally instructive in discerning that the efficacy of these measures remains far from established.
It said restrictions reveal that children do not cease to use the internet merely because the law prohibits them from doing so, and they continue to use the same, albeit without the knowledge of their parents or the authorities, and move to other platforms and websites that are unregulated and even more unsafe.
“Such restrictions also make children who are being enticed or threatened on the internet reluctant to report the same to parents, guardians and trusted adults out of fear of reprisal for using the internet. This would significantly undermine the safety of our children, who are already apprehensive about confiding such incidents, even without such restrictions, and defeat the avowed object of the POCSO Act,” it said.
The top court said keeping children away from social media platforms would, by no stretch of imagination, reduce incidents such as those revealed in the news report placed before the court.
“Without proper safeguards and earnest efforts by all stakeholders in the detection and removal of CSEAM, such material will continue to circulate and embolden those who seek out the same,” it underscored.
Ruling out a complete ban on the internet for children, the bench said, “All that we are trying to say is that any blanket restriction on the access to the internet by children is nothing more than unproven measures of proven disproportionality. No jurisdiction has, so far, been able to demonstrate that children are any safer on account of such measures.”
The bench said its efficacy is at best contested, and without question, not a substitute for the initiative and efforts required from all the stakeholders, be they the intermediaries, the law enforcement agencies, the Ministry of Electronics and Information Technology or the courts.
The top court issued a slew of directions to curb the “alarming rise” in sexual abuse content on social media platforms and intermediaries.
