Legally Challenging the Blue Whale Challenge

Introduction

“We have seen the havoc played by unscrupulous internet predatory sites such as the ‘Blue Whale’. It is upto us to empower our children so that they develop the maturity to say no to such exploitative and inhuman tendencies online.”  –  Shri M. Venkaiah Naidu, Vice President of India[1]

At present, the internet has more negative impacts on children than positive. There has been an alarming death rate based on challenges that go trending on social media. A recent example of such trends is the Blue Whale Challenge. This challenge is developed and designed in such a way that players tend to harm themselves either by cutting hands (by carving a picture of a whale) or by jumping from the building, causing grievous injuries which can succumb to death.

The Blue whale Challenge is a suicide game in which the players have to provide proof in the form of photos and are given certain tasks on a daily basis for 50 days and after each task video of the task performed is required to be shared with anonymous curators. The last task leads to the suicide of the player as he or she psychologically gets so much traumatized, addicted and depressed which led to taking their own life. The players are also asked to share photos after finishing each challenge and sometimes the administrator of the challenge threatens to kill the participants if they do not do the next task and hacked their phones and computers as well. Regrettably, the danger of this deadly challenge has been reported to be highest in India.[2]

To deal with the issue, the Madras High Court[3] has taken suo moto cognizance to ban the challenge, while the 3-judge bench of Supreme Court has asked the Centre to start with the awareness programme on the issue[4]. Thereafter, government[5] as well as UNICEF[6] has released an advisory to restrict the consequences of the challenge. What is worrying is the fact that despite the judiciary’s Orders and state’s assurance of banning the challenge in India, yet there exist unfortunate incidents of suicide by the virtue of the said challenge.[7] Certainly, there is a strong need for the for better implementation of laws to restrict such challenge. The paper attempts to analyse the existing laws that could contemplate this challenge and goes on to put forth recommendations to restrict emerging of any such deadly challenges in future.

Analysis of the Legal Framework

  1. Laws on Technology

In India, digital technology is governed by the Information & Technology Act, 2000 which provides preventive and remedial measures for online offences. The Act provides for punishment for any criminally intimidating offensive messages received from any digital source.[8] Section 69-A also confers the powers to the government to block the public access to any information received or generated from any computer source to stop incitement of commission of any cognizable offence.[9]

The Blue Whale is not a freely downloadable challenge. The link of this challenge is circulated through WhatsApp and the player is bound by the anonymous curator to register by submitting his personal information to him. The first stage of the challenge is less challenging, yet dangerous. However, the player gets addicted to the challenge with the subsequent gory stages under the threat of their data getting misused. Curator even captures the personal information of the player and thereby violates the player’s right to privacy under Section 66E of the Act. Section 79 also covers the role of intermediaries and formulates rules to block information that aids in the commission of any unlawful act[10]. Notably, in Registrar’s[11] case, the Supreme Court has directed the state to take necessary action against WhatsApp and other similar ‘Over The Top’ (OTT) services, if they fail to provide information relating Bluewhale to the law enforcement agencies.

  1. Criminal Laws

As inferred from the stages of the Bluewhale, the challenge perfectly falls under the offence of abetment to suicide. Even the Advisory issued by MeitY termed the Bluewhale an as abetment to suicide.[12] This offence is covered under Section 305 for child and insane person as well as under Section 306 of the IPC, 1860[13]. There exist three basic ingredients to the said offence. Firstly, the deceased should have committed suicide; secondly, the accused, as per this Section, have abetted or instigated the deceased to commit such act and; thirdly, there should be direct involvement of the accused in the commission of the alleged act.

The curator can also be held liable for criminal intimidation under Section 507 of IPC as he anonymously threatens the player to do an illegal act which may cause severe injury to him.[14] Moreover, there have been instances where the location of the curator is either unknown or falls outside the territory of the country. As the IPC is only applicable within the territory of the state (except where the subject is governed under extra-territorial operation), it is very difficult to hold any person guilty who has committed the act in some other country. A remedy for this issue is provided by the Effects Doctrine[15], which states that a sovereign has the power to adopt criminal law that applies to crimes that are committed within the territory, even if the accused performs the act outside the territory. With the increase of cybercrime on the Internet, the application of this doctrine has become significantly important.

  1. Child Laws:

The reported age of majority of the players of Bluewhale ranges from 12 to 19 years.[16] Clearly, this deadly challenge is played mostly by children. The Bluewhale may qualify as a crime under Section 16 of the POCSO Act for instigating the child to commit the unlawful offence.[17] The National Policy for Children (NPC), 2013 states the State’s obligation to take measures to safeguard the rights of children in need of s any special protection, as mentioned in as “their specific social, economic and geopolitical situations, including their need for rehabilitation and reintegration”. The same Policy also notes that the State should enact progressive legislation and build a preventive & responsive child protection system.

Integrated Child Protection Scheme (ICPS), 2009 aims to integrate service provision into a range of existing services to cater to the multiple needs of children in difficult circumstances, through an interface with various sectors, including health, education, judiciary et cetera. Systems under ICPS promote the right to privacy[18] and confidentiality of the child and institutionalisation of the child is seen as a measure of last resort.

  1. Position in International Law

The right to life is considered a basic human right and is protected by several international instruments, including Article 3 of the UDHR,[19] Article 6(1) of the ICCPR[20] and Article 6 of the UNCRC.[21] In most of the cases of Bluewhale, the initial stages itself lead to the instant death of the player.

The right to physical integrity, while often associated with the right to freedom from torture, encompasses several broader human rights principles, including the inherent dignity of the person, the right to liberty and security of the person, and the right to privacy. Acts of violence threatening a person’s safety, such as Bluewhale, also violate a person’s right to physical integrity.

The right to the highest attainable standard of physical and mental health is enshrined in many international and regional instruments particularly Article 25 of the UDHR.[22] Further, Article 12 of the ICESCR[23] states that all State parties to Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.  Information collected of children under 13 years of age are protected under the Children Online Privacy Protection Act (COPPA), 1998. Many countries like Egypt, U.A.E, Ukraine etc have completely banned the challenge from their online sources.[24] Russia, assumed to be the founder of this challenge, introduced three new articles in its Criminal Code providing punishment for inciting or assisting minors to commit suicide.[25]

The Road Ahead

It is suggested that appropriate steps be taken by the State towards prevention and awareness generation. The following measures may be considered in this regard:

  1. The Bluewhale should be banned from all the online sources, including the proxy websites. A team of techno-legal experts should be appointed to check the proper implementation of the Supreme Court’s and High Courts’ mandate.
  2. Specific amendments may be made in the IT Act, 2000 stating that Bluewhale or any other similar challenges as a form of misconduct making the curator liable for disciplinary proceedings.
  3. The law should provide for the participation of the practising population in the process of review, law-making and the development of strategies. The law should be made widely available, child-friendly and translated in the appropriate local languages.
  4. Efforts should be made to pass a law which is indistinguishable to COPPA, 1998 to protect the online privacy of the children.

[1] Available at http://www.pib.nic.in/PressReleseDetail.aspx?PRID=1550607 (Accessed on June 28, 2019).

[2] Available at https://www.rediff.com/getahead/report/blue-whale-challenge-blue-whale-game-google-trends-search-highest-in-india-rank-no1/20170901.htm (Accessed on June 28, 2019).

[3] The Registrar (Judicial), Madurai Bench of Madras High Court v. The Secretary to Government, Union Ministry of Communications, Government of India, New Delhi and Ors. [2018] (1) CTC 506.

[4] Sneha Kalita v. Union of India & Ors. [2018] 12 SCC 674.

[5] Available at https://meity.gov.in/advisory-blue-whale-challenge-challenge (Accessed on June 28, 2019).

[6] Available at http://unicef.in/Uploads/Publications/Resources/pub_doc148.pdf (Accessed on June 28, 2019).

[7] Available at https://www.indiatvnews.com/news/india-suicidal-games-are-back-suspected-cases-of-momo-and-blue-whale-challenges-surface-in-odisha-tn-461651 (Accessed on June 28, 2019).

[8] Information & Technology Act, 200, s. 66-A

[9] Information & Technology Act, 200, s 69-A.

[10] Information & Technology Act, 200, s. 79.

[11] Supra at [3].

[12] Supra at [5].

[13] Indian Penal Code, 1860, s. 306.

[14] Indian Penal Code, 1860, s. 507.

[15] United States v. Ivanov 175 F. Supp.2d 367 (D. Conn. 2001).

[16] Supra at [6].

[17] Protection of Children from Sexual Offences Act, 2012, s. 16.

[18] Justice K.S. Puttaswamy (Retd.) v. Union of India [2017] 10 SCC 1.

[19] Universal Declaration on Human Rights, Article 3

[20] International Covenant on Civil and Political Rights, Article 6(1).

[21] United Nations Convention on Rights of the Child, Article 6.

[22] Universal Declaration on Human Rights, Article 25.

[23] International Covenant on Economic, Social and Cultural Rights, Article 12.

[24] Available at https://www.unian.info/society/2319441-ukrainian-cyber-police-block-over-1000-pro-suicide-social-media-groups-stop-deadly-challenge.html (Accessed on June 28, 2019).

[25] Available at https://www.themoscowtimes.com/2017/05/26/bill-outlawing-pro-suicide-groups-in-social-networks-adopted-by-russian-parliament-a58098 (Accessed on June 28, 2019).


ABOUT THE AUTHOR

Anirudh Vijay

Author Photo - Anirudh Vijay

Anirudh Vijay is currently a 4th year law student at Faculty of Law, Jamia Millia Islamia, New Delhi (Batch of 2016-21). His areas of interest include international law, cyber law and the intersection of technology & civil liberties. During his first year, he interned with Teach for India, wherein he taught in a government school as well as worked for child welfare. The idea of writing this paper came to him after interacting with his tech-savvy school students.

Vaibhav Sharma

Author Photo - Vaibhav Sharma

Vaibhav Sharma is currently a 4th year law student at Faculty of Law, Jamia Millia Islamia, New Delhi (Batch of 2016-21). He finds his interests in constitutional and criminal laws. He has participated in many quiz competitions in the past.

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