Children have fundamental right to internet access, blanket ban unjustified: Supreme Court

The Supreme Court has ruled that children have a fundamental right to access and use the internet, holding that a blanket ban on their internet use would be disproportionate. The court also directed the Centre to create a national database to help detect and remove sexually explicit visual content depicting minors from digital platforms.

A bench of Justices JB Pardiwala and K Vinod Chandran passed the order on October 15 while hearing a plea filed by NGO Just Rights for Children Alliance, which had highlighted the alarming rise in child sexual exploitation and abuse material (CSEAM) circulated on social media platforms.

In its 137-page order, the bench said the right to access and use the internet was a fundamental right under Articles 21 and 19(1)(a) of the Constitution, which guarantee the right to life and personal liberty and freedom of speech and expression, respectively.

The court said children, irrespective of their age, enjoyed the same rights, adding that denying them internet access altogether would be as absurd as claiming that children below a certain age had no conscience worth protecting or freedom of speech worth expressing.

However, the bench clarified that recognising this right did not rule out age-based safeguards to protect children online. It suggested measures such as greater parental consent, guidance and supervision for children's social media accounts, along with dedicated 'child mode' features proportionate to the objective of ensuring their safety.

The court also said the government could restrict children's access to specific categories of content or services that were inherently harmful to them, including adult websites.

Observing that children's safety and freedom were not mutually exclusive, the bench highlighted the internet's importance as a source of education and information, particularly for children in remote areas. It also noted that the internet often provided children with special needs an opportunity to connect with others like them.

The court cautioned that age-based restrictions could raise serious privacy concerns, as their implementation might require identifying every user, continuously collecting and monitoring sensitive data, and creating risks of misuse and surveillance.

Referring to the experience of other jurisdictions, the bench said the effectiveness of such restrictions remained unproven. Children might continue accessing the internet despite legal prohibitions, often without their parents' or authorities' knowledge, and could migrate to unregulated platforms and websites that were even more unsafe.

Such restrictions could also discourage children facing online threats or enticement from reporting incidents to parents, guardians or trusted adults for fear of punishment for using the internet, the court said. This could undermine child safety and defeat the objectives of the Protection of Children from Sexual Offences (POCSO) Act.

The bench further observed that keeping children away from social media would not, by itself, prevent the circulation of sexual abuse material. Without effective safeguards and concerted efforts by all stakeholders to detect and remove such content, it would continue to circulate and embolden offenders.

The court said a blanket restriction on children's internet access amounted to an unproven measure that was disproportionate, adding that no jurisdiction had so far demonstrated that such measures made children safer.

It stressed that restrictions could not substitute for coordinated action by digital platforms and other intermediaries, law enforcement agencies, the Ministry of Electronics and Information Technology and the judiciary.

The Supreme Court issued a series of directions to address the alarming rise in child sexual abuse material on social media platforms and other digital intermediaries.