The Supreme Court on Thursday sought the Centre’s response on a petition seeking restrictions on social media use by minors, observing that “firewalls” are necessary to safeguard the rights of children.
Issuing notice on a petition filed by a non-profit child rights body, a bench headed by Chief Justice of India (CJI) Surya Kant said, “There is need for some safeguards in India. Some firewall is necessary for protecting our children.”
The court made the observation while hearing a petition filed by Just Rights for Children Alliance which pointed out that social media intermediaries and digital platforms allow persons above 13 years to open accounts. It argued that minors are incapable of entering into any contract as the Indian Contract Act summarily declares a minor’s consent for an agreement to be void right from the time such an agreement comes into existence.
The bench, also comprising justices Joymalya Bagchi and V Mohana, agreed that the matter requires to be examined as the petition highlighted various instances of how minors are being subjected to crimes, sexual exploitation, cyberbullying, and trafficking on various digital platforms.
The petition, argued by senior advocate HS Phoolka said, “It is well settled that an agreement entered into by a person who was a minor on the date of execution is void ab initio under section 11 of the Indian Contract Act, 1872. Yet, we are seeing that children below 18 years are permitted to independently create and maintain accounts on social-media platforms and access digital platforms.”
{{/usCountry}}The petition, argued by senior advocate HS Phoolka said, “It is well settled that an agreement entered into by a person who was a minor on the date of execution is void ab initio under section 11 of the Indian Contract Act, 1872. Yet, we are seeing that children below 18 years are permitted to independently create and maintain accounts on social-media platforms and access digital platforms.”
{{/usCountry}}It stated that opening of an account on social media or digital platforms requires children to accept terms of service, user agreement, privacy policies, etc and this cannot be permitted when the law in the country does not recognise the right of a person below 18 years to enter any contract.
However, the plea made an exception for permitting access to lawful, educational and age-appropriate digital content through accounts maintained and controlled by their parents or lawful guardians, subject to an appropriate regulatory framework.
Phoolka stated that the issue also raises privacy concerns. The Digital Personal Data Protection (DPDP) Act 2023 recognises the special vulnerability of children and requires verifiable parental or guardian consent for processing personal data of a child. Even the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are silent on the contractual capacity of a minor to access and use the services of social media intermediaries or digital platforms.
The petition urged the Centre to step in and declare all such accounts opened by children to be void. Till such time the guidelines are framed in this regard by the Centre under the 2021 IT Rules, the petition requested the court to pass a direction restricting any digital platform from entering into a contract with a child under 18 years.
The issue of restricting social media usage by children has been viewed with seriousness across jurisdictions. Australia has passed a law completely banning minors below 16 years from holding social media accounts. There is no parental consent exception provided under the law and the liability of social media intermediaries is made absolute with any violation inviting heavy penalty on them to the tune of $50 million. However, the law makes exceptions for learning platforms such as WhatsApp Messenger Kids, YouTube Kids and Google Classroom.
A similar law has also been passed by Malaysia and Indonesia which bans social media use by minors below the age of 16 with no parental consent exception provided. Malaysian law applies to platforms having at least 8 million Malaysian users. With regard to Indonesia, there is no such clause but it applies to “high-risk” platforms where minors may be exposed to harmful and sensitive content.
In the United Arab Emirates, the restriction applies to minors below 15 years of age and for those in the age bracket of 15 to 16, age-appropriate content controls are recommended. Even in the United States, for users below 13 years, verifiable parent consent is required.
Besides, several countries including the United Kingdom, Canada have proposed ban on social media use by persons below 16 years but the same has not yet been implemented.