The Ministry of Electronics and Information Technology vide its Press Release dated 29th June 2020 banned 59 mobile applications invoking Section 69A of the Information Technology Act, 2000 and relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009. These provisions confer power on Central Government or any of its officers to issue directions to any government agency or intermediary to block public access of any information. Before going into the various responses this move generated, the impact it created and the Legal framework that surrounded it, let’s first take a cursory glance at background of this move. It appears to be a well thought out move by the Indian Govt. and fits into a series of events/ debates around Global trade, trade deficits, tariff wars, national security and etc. with China at the centre of it. Indian government’s interim ban is apparently on grounds that they engage in activities which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order. The press release however does not mention the word “Chinese” but a fair conclusion is being derived as each of these applications are operated through or have investment by Chinese companies.
The ban is being viewed as India’s retaliation to a month long border clash with China. It has also left no room for China to fight back on this front since Indian applications rarely lead/dominate any particular category in China. Any retaliation on trade front from China is quite unlikely considering India’s large trade deficits with China. The current move seems to be in consonance with two campaigns announced by the Central government earlier this year that majorly focused and emphasised on making Indian self-sufficient—‘Atmanirbhar Bharat’ and ‘Vocal for Local’— boosting indigenous manufacturing and production of goods. India’s move seem to have added fuel to an ongoing trade tussle, tariff wars, ban on Chinese companies in the name of national security, etc. The debate around Global Trade has dominated headlines across the World since the Past 3 years, since Trump administration took an aggressive step with countries where USA runs large trade deficits. China has been at the centre stage in USA’s attempts to create level playing fields with all such countries. Prior to COVID-19, it appeared that United States negotiations, closure and execution of Phase I deal with China will slow the Tariff wars. However 1) the global trade COVID-19, its origin and its on-going and subsequent impact on World’s economic and political order, 2) China’s on-going border expansionist approach with most of their neighbour, 3) China’s attempts to control the entire South China Sea route (one-third of the world’s shipping passes through it, carrying over $3 trillion in trade each year) leading to a confrontationist path with countries in this region, 4) Growing Investment and influence either directly by the Chinese Govt. or/and via Chinese companies in major countries, etc. will continue to see more countries follow the footsteps in banning Chinese Companies, Applications and Websites. The latest addition to the list is the United Kingdom which banned the Chinese company Huwaei, citing national security as the reason. Not only countries but even the Multinational Tech Giant Amazon directed its employees to remove Chinese Applications such as TikTok, etc. Such reactions by western countries and conglomerates is a result of a single or a combination of factors such as, 1) China’s expansionist policies across borders or/and South China sea or 2) Attempting to reduce trade deficit and emphasize on more exports and create level playing fields in Chinese market.
The ban may raise a slew of legal questions around citizens being perplexed between the constitutional validity of the ban vis-avis the right to freedom of speech and expression over the Internet. Let us look at the strategic underpinnings of the blanket ban of applications and its interim nature considering ambiguity with respect to use of personal data of Indian citizens by these Chinese companies. To start with the Ministry of Electronics and Informational Technology apprehended that several apps available on Android and iOS platforms were allegedly stealing and surreptitiously transmitting users’ data in an unauthorized manner to servers which have locations outside India. Various application stores including Apple’s App Store and Google’s Play Store have removed few out of these 59 apps from the Playstore. TikTok, the most downloaded and used app among these 59 apps issued a disclaimer on the application as well as its website stating that it is updating its software so as to make it compliant with the directions issued by Indian Govt. additionally it is making amends to it privacy policies as User’s Privacy is paramount. The Govt. of India has given time for these Applications to make representations. The impact of blocking these applications cannot go unnoticed; some of these apps have been medium for economically, socially and geographically backward section of society, who were missing the sense of importance and acceptability. We must therefore try and understand the geopolitical perspective following the current scenario amidst pandemic dangling as the biggest global threat before us, neither would it seem unnatural that the ban on these apps came just after the recent border conflict between India and China. It is also to be noted that nowhere in the Press release there has been usage of the word “China”, but each application is tied to one single thread which is their association with Geo-Blocking refers to a phenomenon where a country may block the usage of internet on grounds of location, including websites promoting porn and violence In China, websites and apps like Facebook, Twitter and other platforms have been blocked for different reasons. Deriving from the highlighted rational and scenario, internet freedom maybe declined for reasons of possible proliferation of misinformation and fake news across social media. In the recent scenario there were numerous misinformation related to Covid-19 which were being allegedly spread on TikTok, about ways to tackle Covid-19, and taking lead from such instances the campaign of #MatKarForward was released. It may be interesting to note that The US Army had also banned Tik-Tok in the beginning of 2020, as the United States Army asked the soldiers to not having the app on government-owned phones to secure their privacy.
It is being said that India’s clean app approach will boost India’s sovereignty and boost integrity and national security. The Constitution of India provides the right of freedom of speech and expression guaranteed by Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. Article 19 guarantees the freedom of speech and expression, as one of its six freedoms whereas Section 69A of the Information Technology Act, 2000, as introduced by an amendment to the Act in 2008, authorise the Central government a power to block public access to any information online — whether on websites or mobile appsin the interest of the defence of the country, its sovereignty and integrity, the security of the State, friendly relations with foreign States, public order or for preventing incitement to the commission of an offence. Law provides that an intermediary is now only obliged to remove content after it has received an order from a court or from the Designated Officer under the Blocking Rules, directing it to do so. In emergency cases under Blocking Rules 2009 a designated officer can issue an interim order blocking the content without giving a hearing to the originator or intermediary (Rule 9). The hearing will have to be held subsequently after which the interim order passed by the designated officer is confirmed or revoked.
As per the new era and trend “Data is the new oil”. It may be interesting to quote the criterion set in one of the cases by the Supreme Court of India as the test to determine what constitutes as proportionate state actions by citing a case of Modern Dental College v. the State of MP (2016). Court in a few cases has clearly stated that there must be a legitimate interest which is suitable to establish a rational connection between the means adopted and the object sought to be achieved and that the alleged (intrusive) action by the govt. was necessary in the given set of circumstances and a proportionate balance between the interest in restricting the right must override the need to safeguard the right.
Focusing on the main issue here, that what was the nature of threats which compelled Indian government to take this unprecedented step? There was usage of data in an unauthorized manner which concerns the security of the state, specifically in the current scenario when we have certain disputes with China. Given that this is an interim order, such orders are generally issued to ensure Status quo i.e. to understand the existing state of affairs. Supreme Court via. its judgement in Anuradha Bhasin v. Union of India & Ors. (2019) admitted that Section 69A read with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 permit the Indian Government to impose narrowly tailored restrictions on access to content. Before we assess the premise of the decision by the State during such unprecedented challenges faced not just by India but also globally. TikTok India after the Press Release has already forward and specified on different social media platforms that they are not sharing data with China and complies with its data privacy and security requirements under Indian Law. It has also clarified that they are looking forward to meet the officials and submit their points. The basic criterion which requires to be fulfilled is of “protection of data privacy of Indian users” as this is the most important reason which initiated this ban. One smart thing to do would be to observe the action regarding the discussed restriction at a granular level to appreciate the geoblock for a proportionate perspective.
Kriti Sharma, MSc. Law & Finance, University of Oxford (U.K), Managing Partner, LawCapita. Aman Mishra, B.B.A. LL.B, Bharati Vidyapeeth, New Law College, Pune, Legal Trainee, LawCapita.
