SC declares use of internet a fundamental right for people, including children; directs creation of database to tackle CSEAM

RANCHI: Declaring the access to and use of the internet a ‘fundamental right’ for every individual, including children, the Supreme Court directed the central government to create a national database for the detection and removal of Child Sexual Exploitation and Abuse Material (CSEAM) on digital platforms.

A bench comprising Justice JB Pardiwala and Justice K Vinod Chandran also suggested introducing “child mode” for social media accounts, with greater emphasis on parental consent, guidance and oversight.

The court observed: “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. The safety of our children and their freedom are not at odds with each other.”

The court made the observations in connection with Just Rights for Children Alliance (JCRA) and Anr vs S Harish & Ors case. Just Rights for Children is India’s largest civil society network with over 300 NGOs against child sexual exploitation, child trafficking and child marriage.

The Supreme Court acknowledged that the internet is far from safe for children but held that keeping children away because of the failures of intermediaries to detect and remove harmful material would amount to mistaking the victim for the problem.

It directed that National Hash & URL List Database be set up for detection and removal of CSEAM, and said any entry in the database should be made after multiple tiers of verification, with the final screening being done by at least three trained human analysts who independently determine whether the material constitutes CSEAM.

Every database entry shall be used by intermediaries to cross-check and remove any content on their platform that matches the entry. Law enforcement agencies shall use the same process to identify, detect and remove any such material that matches an entry in the database.

Where an intermediary finds a match against an entry i.e., CSEAM of “known origin”, the intermediary shall immediately disable and remove it, without awaiting further verification at its end. The guidelines or standard operating procedures will be revised periodically by the Ministry of Electronics and Information Technology (MeitY).

The court directed the Union Government to formulate guidelines, standard operating procedures and suitable amendments to this end.

Speaking about the introduction of “child mode” for social media accounts, the Supreme Court stated that these measures may include accounts being made private by default, restrictions on contacts and messages from unknown adults, moderation of advertising and content accessible to children. Such measures may be implemented for pre-teens, with reasonable and proportionate means to verify parental consent.

The court also directed that Union and state governments, national and state commissions for protection of child rights and other stakeholders take measures like teaching children ways to use the internet safely, protect their personal data and privacy online, to recognize signs of enticement, sexual extortion, and other similar exploitative and abusive practices.

Senior advocate H S Phoolka, who represented the petitioner in the case, said that with the government’s support, India can now have one of the strongest child online safety frameworks in the world. “The Supreme Court has laid down a clear and practical roadmap: immediate removal, reporting to the police within two hours, dedicated grievance officers and a uniform reporting mechanism.”

Hailing the SC’s order, Rachna Tyagi, who represented Just Rights for Children Alliance, said “ The SC has reaffirmed its 2024 judgment in the clearest possible terms: no platform, however large or powerful, is above the law when it comes to the safety of our children. The court has made it plain that taking down child sexual abuse material quietly is not enough. It must be reported to the police as POCSO mandates. Safe harbour is not a shield for silence.”