Children’s Online Safety and the measures of age gating in India

 

                        Children’s Online Safety and the measures of age gating in India-

India is home to nearly 820 million internet users currently with the number expanding by each passing minute as internet continues to penetrate deeper into our lives, both quantitatively and qualitatively.

While every country is grappling with the issue of internet security or the lack thereof, India faces a peculiar situation as a large chunk of its population (nearly 33%) still consists of minors (children below the age of 18 years). Online safety specially for children therefore becomes paramount specially in the absence of a singular legislation dealing specifically with the issue of online safety of minors. The lack of specific and singular legislation often leaves several organisations providing online services in the dark regarding the age gating measures to be employed while providing their services.

Governing Legislation –

The regime surrounding Online safety of children and the content being viewed therein is governed by provisions of the Indian Penal Code, 1860, The Information Technology, Act, 2000, The Intermediary Guidelines, 2000, and the Code of ethics published along with it.

A. The Indian Penal Code, 1860 and The Information Technology Act, 2000 –

Section 67A of the IT Act, which deals with the electronic transmission of material containing sexually explicit acts, punishes anyone who publishes or transmits or causes to be published or transmitted in the electronic form any obscene material with a jail term of 5 years along with a fine of Rs 10 lakh.

Section 67B of the Act, which deals with child pornography, prescribes a punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form with imprisonment of either description for a term which may extend to five years and with fine which may extend to 10 lakh rupees on first conviction and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to 10 lakh rupees.

Section 292 of the IPC defines "obscene" as any material that appeals to the prurient interests, is lascivious or tends to deprave and corrupt individuals.

Section 293 of IPC states that whoever sells, distributes, exhibits, or circulates such obscene content to any person under 20 years shall be punished. The punishment for the first conviction is 3 years with a fine of Rs 2000, which could extend up to 7 years imprisonment and a fine of up to Rs 5,000 for a second conviction.

These provisions, however, do not specifically provide for age gating or assurance measures to prevent children from viewing such content.

B. The 2021 Intermediary Guidelines and the Code of Ethics –

In India, Intermediaries and Publishers of news and current affairs content and Curated Content, such as OTT Platforms, are governed by the 2021 Intermediary Guidelines.

Rule 3[1][b] of the Guidelines requires that the rules and regulations, privacy policy or user agreement of an Intermediary shall inform the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that:

“[ii] is defamatory, obscene, pornographic, paedophilic, invasive of another‘s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force; [iii] is harmful to child.”

Rule 2 defines a ‘child’ as ‘any person below the age of eighteen years.’

Further, according to Part III of the Rules, a Code of Ethics has been prescribed which must be adhered to by publishers.

The Code of Ethics, available in the Appendix to the 2021 Guidelines, includes following elements:

• General Principles related to prohibited content and content regarding which the

platforms need to observe due caution and discretion.

• Content classification and rating of content as per various age-based

categories.

• Display of content classification and content descriptors.

• Age-gating, parental locks, and age verification mechanisms for restriction of

access to certain content by children

The Code prescribes various age-based categories into which online curated content are to be categorized.

As per the Code, for ‘U/A 13+’ or higher rated content, OTT platforms are required implement access control mechanisms such as parental locks. For ‘A’ rated content, they must implement a reliable age verification mechanism for viewership of such content.

These rules also be applicable to Intermediaries if they provide such curated content or publish news and current affairs content on their platforms. Further, publishers who operate in the territory of India and/or who conduct make their content available in India fall within the ambit of the Rules.

C.

On the matter of User Consent

Another relevant point to consider may be the matter of user consent, and whether minors are capable on entering into contracts when accessing services on an intermediary’s website.

In India, a ‘minor’ is generally considered to be every person who has not completed 18 years of age. By permitting minors to access services via click-wrap and browse wrap agreements, the requirement of competence of parties to a contract as per Sections 11 and 12 of the Indian Contract Act, which does not recognise contracts entered into by minors, may not be met. Moreover, the present legal framework does not mandate parental consent prior to accessing such websites, which would again increase the risk levels of allowing access without the implementation of appropriate age-gating or age verification mechanisms, statutory mandates notwithstanding.

The use of social media applications by minors has even been the subject of public interest litigation in India. In a recent case, S. Muthukumar v. TRAI and Ors., the Madras High Court imposed a temporary ban on downloads of TikTok due to concerns about the presence of pornographic content and potential for child abuse, particularly since the application was accessible to minors. The Court partially lifted the ban after TikTok demonstrated that it had implemented measures such as age barriers for minors under 13 and requiring password-protected parental consent for their use of the application. TikTok has since, however, been banned in India on unrelated grounds.

In the absence of clarity regarding such questions of minors’ capacity to enter into e-contracts, parental consent requirements and so forth, intermediaries may be at risk when permitting minors to use their platforms. The failure of a provider to take reasonable steps to prevent children from accessing such content may attract legal action under the above-mentioned laws and Rules including the Indian Penal Code, 1860 and the Information Technology Act, 2000.