Shruti Mahajan April 16 2019

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The Supreme Court today directed the Madras High Court to hear the case concerning the ban imposed on the use and download of TikTok on April 16. The High Court will now hear the matter on the issue of ad interim relief.

The Bench of Chief Justice of India Ranjan Gogoi and Justice Sanjiv Khanna has listed the case for April 22, on which date the Court will be apprised of the developments that take place at the Madras High Court.

In effect, the Court has not granted a stay on the order passed by the High Court.

Justices N Kirubakaran and SS Sundar of the Madurai Bench of the Madras High Court had, on April 3, passed an ex-parte order prohibiting the download and use of the video-sharing app TikTok. It had also issued the following directions:

  • The Government is directed to prohibit downloading of Tik Tok Mobile App.
  • The Media is prohibited from telecasting the videos made using Tik Tok Mobile App.
  • The Government has to answer whether the Union of India will enact a statute, like the Children’s Online Privacy Protection Act, enacted by the United States, to prevent the children becoming cyber/online victims.

TikTok (through PLR Chambers) approached the Supreme Court asking for the order to be set aside, as it would cause irreparable loss to the company. In the interim, a stay on the operation of the order was also sought. TikTok has claimed that the High Court’s ex-parte order is arbitrary and illegal, as the ban on the download and use of the app not only curtails its right to freedom of speech and expression but will also lead to financial loss and loss of jobs.

Suhaan Mukerji

PLR Managing Partner Suhaan Mukerji

TikTok argues in the petition before the Supreme Court that if the ban imposed by the High Court is not lifted, it would cause irreparable loss to the petitioner and would give a significant advantage to the petitioner’s competitors.

“The said ban, if not lifted immediately, shall cause severe prejudice and irreparable harm to the Petitioner Company and result in competitors gaining a significant and potentially irreversible advantage over the petitioner company.”

TikTok also argues that its platform is merely an intermediary under the Information Technology Act and cannot be held liable for the actions of third party users on the platform. The law under the IT Act provides a “safe harbour” to intermediaries, provided they are in compliance of the law and possess no knowledge of the contravention taking place, the petition submits.

TikTok has also challenged the invocation of the High Court’s writ jurisdiction, claiming,

“The Petitioner in the impugned order herein has invoked the Writ jurisdiction of the Hon’ble Madras High Court under Artcile 226 of the Constitution of India, as a ‘Public Interest Litigation’. However, the petitioner has not substantiated the legal grounds on which he has approached the Hon’ble High Court, and has merely resorted to vague allegations to support his claims. It is submitted that this is a blatant abuse of the process of ‘Public Interest Litigation’, which has evolved as an important tool to protect the larger interest of the people of this country.”

The order passed by the High Court is based on various unsubstantiated and factually incorrect or gross exaggerations made by the PIL litigant, the petitioner company states. It is also argued that the company is in compliance with the law, and that it could have been directed to monitor problematic content instead of banning the entire platform.

The Madras High Court is scheduled to hear the case on Tuesday, April 16 on the issue of ad-interim orders and pass orders or directions accordingly. The Supreme Court will take up the case on April 22 thereafter.