The Supreme Court on Saturday held that the right to access and use the internet is a fundamental right of every individual, including children irrespective of their age, saying that measures to protect children from online sexual exploitation must target harmful content and those responsible for its circulation rather than restrict children's access to the internet.
In its judgment dealing with the circulation of Child Sexual Exploitation and Abuse Material (CSEAM) on online platforms, a bench of Justices J.B. Pardiwala and K. Vinod Chandran said that the safety of children and their freedom were not at odds with each other, and that children were entitled to both.
The apex court was hearing an application filed by Just Rights for Children Alliance (JRCA) seeking effective implementation of the Supreme Court's September 23, 2024, judgment in Just Rights for Children Alliance vs S. Harish, which dealt with the obligations of social media intermediaries to report suspected offences involving child sexual abuse material.
In its judgment, the Supreme Court held: "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." It added that denying children access to the internet altogether would be as absurd as suggesting that children below a certain age did not have a conscience worth protecting or freedom of speech worth expressing.
The Justice Pardiwala-led bench said that although the internet was far from safe for children, any measure intended to ensure their safety must be directed at harmful material and those responsible for it, and not at children themselves. "To keep the child away from the internet on account of such failures would be to mistake the victim for the problem," it said. Highlighting the importance of digital access in children's lives, the Supreme Court said the internet was a marketplace of ideas, creative expression and information, with its value extending to adults and children alike. "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 are able to find company in others like them," the judgment said. Rejecting blanket restrictions on children's internet access as a solution to online abuse, the Justice Pardiwala-led bench said that their effectiveness remained unproven and that such measures could expose children to even greater risks. It said children did not stop using the internet merely because the law prohibited them from doing so, but continued accessing it without the knowledge of their parents or authorities, often moving to other platforms and websites that were unregulated and even more unsafe.
The top court also cautioned that such restrictions could discourage children facing online enticement or threats from reporting incidents to their parents, guardians or trusted adults for fear of being reprimanded for using the internet. "This would significantly undermine the safety of our children, who are already apprehensive about confiding such incidents, even without such restrictions, and defeat the avowed object of the POCSO Act," it said. However, the Supreme Court clarified that this did not mean there should be no age-based safeguards, acknowledging the need for measures to protect children online and moderate the content accessible to them.
It suggested a framework placing greater emphasis on parental consent, guidance and oversight, along with a dedicated "child mode" for social media accounts, particularly for pre-teens. Such safeguards could include making accounts private by default, restricting contact and messages from unknown adults, and moderating advertisements and content accessible to children, it said, leaving the modalities to the Union government. The top court also clarified that nothing in its observations would prevent the government from restricting children's access to specific categories of content or services inherently harmful to them, such as adult-content websites.
The Supreme Court said intermediaries must ensure that no CSEAM or other material likely to harm children was offered, hosted, uploaded, promoted or circulated through paywalls or subscriptions. It urged the Centre to frame appropriate guidelines for scrutiny of such content and proportionate measures to regulate the content children could access or subscribe to. The judgment called for children to be taught, from the primary stage, about their bodies, safe and unsafe touch, consent, healthy relationships, respect for others and the safe use of the internet.
Children must also be made aware of ways to protect their personal data and privacy online and recognise signs of enticement, sexual extortion and other exploitative practices, it said. The Supreme Court added that children should know whom to approach when faced with inappropriate conduct, including a trusted adult at home or school, and the appropriate channels to report wrongdoing. "Above all, children must be encouraged to come forward without fear and report such incidents.
They must be assured that speaking up on these matters will never be met with any reproach, and they will be given all the help and support with complete confidentiality," the apex court said. The judgment also called for digital safety and age-appropriate sex education to be incorporated into the core curriculum, with the NCERT and State Councils of Educational Research and Training (SCERTs) tasked with developing the curriculum in consultation with child psychologists, educators and parenting experts. It called for teachers and school staff to be trained to identify signs of grooming, abuse and online harassment, respond appropriately to disclosures by children and comply with their reporting obligations under the Protection of Children from Sexual Offences (POCSO) Act.
Children cannot be denied internet access in name of safety, a fundamental right: SC
