The Madras High Court delved into an important issue related to protecting children's privacy in the context of web-based applications such as Tik-Tok, published by Bytedance (India) Technology Private Limited ("Company"). The petitioner contended that the app was "degrading culture", encouraging pornography and exposing children to paedophiles.
As per Section 79 of the Information Technology Act, 2000 ("IT Act") an intermediary would not be held liable for any third party information, data, or communication link made available or hosted by him provided that the intermediary's functionality is limited to providing access to a communication system over which information made available by third parties is transmitted, temporarily stored or hosted or if the intermediary does not- (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission. The exemption would not be applicable if the intermediary is involved in the unlawful act or if the intermediary fails to take down any unlawful content upon receiving actual knowledge of such content.
Further, for the exemption to be applicable the Intermediary should abide by the due diligence standards prescribed in the Information Technology (Intermediaries Guidelines) Rules, 2011 ("IT Rules"). The Rules provide that an intermediary should, among other things:
publish the rules for access or usage of the intermediary's computer resource and inform its users that in case of non-compliance with rules, the Intermediary has the right to immediately terminate the access to the intermediaries resources. Include in the aforementioned rules, that the users should not host/upload any content that is grossly harmful, obscene, pornographic, paedophilic, libellous etc. publish on its website the name of the Grievance Officer and his contact details as well as mechanism by which users can notify their complaints Tik-Tok can be deemed an "intermediary" under the IT Act. The petitioner had incorrectly compared the Tik-Tok to the infamous "Blue-Whale" application, which unlike Tik-Tok is not an intermediary. Through an interim order the Hon'ble High Court had directed the Government to prohibit any further downloads of the app and asked the Central Government whether it would enact any statute specifically protecting the privacy of children online, akin to US's Children's Online Privacy Protection Act ("COPPA").
The COPPA was...