Rejecting blanket age-based limits on internet access, the Supreme Court has held that the right to access and use the internet is a fundamental right under Articles 21 and 19(1)(a) of the Constitution, making it clear that children enjoy the same protection and cannot be denied the right altogether.
The court said children’s safety and their freedom to use the internet were not in conflict and ruled that denying internet access altogether would be unreasonable. It ordered the Centre and online platforms to create a tougher system for faster detection and removal of child sexual abuse material across services.
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. “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 by a bench comprising Justice JB Pardiwala and Justice K Vinod Chandran. The court said that its observation does not mean that there should be no age-based restrictions.
“The safety of our children and their freedom are not at odds with each other. Our children are entitled to both,” the bench said. The observations came as the Court issued directions to strengthen mechanisms for detecting and removing Child Sexual Exploitation and Abuse Material (CSEAM) from social media platforms and other online services.
The ruling comes after recent moves by the Centre to tighten rules on internet access for children under 18. The court made clear that child protection measures must not take away constitutional freedoms, even as it pressed for quicker action against abusive material and better reporting systems.
“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,” SC said.
The court further said that the safety of our children and their freedom are not at odds with each other, and they are 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 can 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 every user, continuous collection and monitoring of sensitive data and an overall disproportionate risk of misuse and surveillance. This kind finds no place within the right to privacy of our people,” it said.
The top court issued a slew of directions to curb the “alarming rise” in sexual abuse content on social media platforms and intermediaries. The Bench directed the Centre to create a National Hash and URL List Database, confined to the detection and removal of such material, with entries made only after assessment by at least three trained human analysts. Intermediaries must remove matches immediately, display a notice where content is removed, and report removals of material of unknown origin within two hours.
At the same time, it warned against wrongful deletion. The court held that content must not be removed mechanically or added to a matching database based on a single complaint, and that multiple safeguards and verification must come first.