LEGAL VALIDITY OF BANNING OF APPS IN INDIA

Profile of the Author: Bhakti Vakil is a 5th year student of Prestige Institute of Management and Research, Department of Law, Indore. She is pursuing B.A. LL. B. (Hons.). Her areas of interest include constitutional law, civil law, corporate law and intellectual property law.

INTRODUCTION

On 29th June 2020, the Central Government imposed the ban on 59 Chinese apps because of the conflict pertaining between the countries at Ladakh Border. The government exercised the power to ban under 69A of the Information Technology Act, 2000 read with the relevant provision of the Information Technology (Procedure and Safeguard for Blocking of Access of Information by Public) Rules, 2009. Rules 5-8 provides the procedure that they must follow to put in place the said blocking. Also, they must constitute a committee to examine the request and they need the approval of the Secretary of the Department of IT. Through the content of the press release, it is quite evident that the government has relied on Rule 9. It describes it as a “matter of immediate concern which requires emergency measures”.

Clause 1 of Section 69 of the IT Act, 2000 empowers the Government to block public access to any information online, whether on the website or mobile apps for the interest of sovereignty and integrity of India. After the ban, there has been a mixed reaction, some adore the idea as it will create more space for the Indian Companies but others thought it might violate Article 19(1) of the Constitution or just announcing in a press release was enough? As it needs to be shown in the public domain but the Government through a press release issued a notification to ban the apps.

THE CONSTITUTIONAL PERSPECTIVE

The current ban is viewed as a violation of Article 19(1) that is, Protection of certain rights regarding Freedom of speech etc. But it does not as in Article 19(2) it is clearly stated that restrictions can be imposed on Article 19(1) in the interest of Public order, Health and Morality. Various Chinese apps share the information of individual users with others, it is a consideration of data privacy. And amid this tense situation of war between India and China, people are criticizing Chinese apps and commodities, so it creates a threat to public order[1], so it is legal under Article 19(1).

In a way, banning of such apps does restrict the Freedom of speech and expression as TikTok was the platform to showcase people’s talent and ideas. The test of proportionality is the leading test to judge whether it is valid. In CPIO v. Subhash Chandra Aggarwal[2], while discussing the proportionality test, Sanjiv Khanna, J. observed that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question. Also, one of reason to ban these apps is the protection of privacy, the press release does not include any specific content related complaints but TikTok was the only app which had complaints of privacy which led to ban by Madras High Court last year. The range of apps that have been banned, further, make it harder to assess their content specific implications. For instance, apart from social networks, games, camera apps, image editors, etc. that are banned, the press release also bans mapping applications, video calling apps, document scanners and battery savers. It is primarily data harvesting and privacy concerns with these apps that is clear.[3]

INFORMATION TECHNOLOGY ACT, 2000

While various cyber experts called this a welcome move, others criticized the move as a violation of application of Section 69A. In Shreya Singhal v. Union of India[4] the constitutionality of Section 69A was upheld. The Supreme Court said that whenever there is an order to block any computer source must be supported by the reason in writing. Also, to disallow the misuse of government power, the court stated that an opportunity to be heard must be given to the affected parties. The notification released exactly mentioned the ban “in view of the emergent nature of the threat”. Hours after the ban, TikTok India issued the statement[5] that they have been invited to meet the Government stakeholders concerned to offer clarification, along with 58 others. TikTok in its statement too clarified about the “interim nature” of the ban. Even if the press note does not expressly mention the rule under which the Government proceeded, specifying “emergent nature” makes it clear. The “urgency” for this step seems to be perfect, considering the border tension. The argument in relation to the violation of freedom of speech and expression seems immature, giving the restrictive nature of these rights. Moreover, banning an app does not in any case restrict any individual right to speech and expression. Individuals have other platforms where they can express themselves.

FLAW IN THE BAN

The listed reason for the ban and the selection of apps makes press release difficult to understand. But when Section 69A is read, that designed to address specific violation by individual apps and not a general violation by the collection of apps. Together, the ban of these 59 apps thus requires a separate, evidence-based evaluation of the alleged content violation but each of the 59 apps. This shows that apps banned are randomly picked up as Tencent cloud, call of duty was not banned, even PUBG was not listed in that 59 apps (though eventually it was banned in Sept 2020). Assuming that the purpose of the confidentiality clause is essential to protect the identities of the persons making the complaints, the government should consider revealing more on the reasons behind the ban in the interest of transparency. Governmental actions are after all, subject to the rule of law, and the press release makes it prima facie unclear as to how the ban is compliant with the law.

The second most important concern to put ban was privacy. Though it ensures data protection of the citizen, the law to protect that data still in pendency. As the Aarogya Setu app also, received criticism for the invasion of privacy it poses. In spite of that, the government promote the app to be best for the citizen of the country. The vague press release undermines Rule of Law. Not allowing the companies to clarify weakens the natural justice principles. After a day of the ban, China issued two official statements regarding the ban on the apps. The first[6] insisted upon the responsibility to uphold the rights of Chinese business. The other statement[7] comes from the Chinese Embassy in Delhi, stating that India’s measure selectively and discriminatorily aims at certain Chinese apps and is suspected of violating WTO rules.

CONCLUSION

India is the largest market for apps like TikTok, and the decision came as big shock to such Companies. This affect the growing market of China in India, and its ambition with the regard to its Digital Silk Road. The Digital Silk Road is the China’s project to become a technology power. Considering the fact that the corona pandemic has resulted in rising suicidal tendencies amongst Indians, banning a platform, which was a source of livelihood and entertainment of millions, can prove to be provocative for those having suicidal tendencies[8].

Looking into bright side, it is an opportunity for Indian companies to flourish and explore more ideas to uplift the market in India. They can make substitute for such banned apps keeping the data privacy their primary concern.

FREQUENTLY ASKED QUESTION (FAQs)

1. Section 69A of IT Act, 2000 complied with data privacy concern, gives too much power to Government. Does that come under misuse of power?

Government cannot exercise the power in any unreasonable manner, as there exist Principle of Natural Justice which need to be followed by the judiciary. Though data privacy does gives power to the government as the law has not been implemented but the up till now the legality of such power is proved.

[1] Jai Rakshita, ‘Legality of Banning Chinese apps in India’ (Legal Services India http://www.legalserviceindia.com/legal/article-3448-legality-of-banning-chinese-apps-in-india.html

[2] CPIO V. Subhash Chandra Aggarwal [2019] SCC Online SC 1459

[3] Asheeta Regidi, ‘India bans 59 Chinese apps under section 69A; what does the law mean, why the order lacks transparency’ (First Post 11 Oct. 2020) https://www.firstpost.com/tech/news-analysis/india-bans-59-chinese-apps-under-section-69a-what-does-the-law-mean-why-the-order-lacks-transparency-8553141.html

[4] Shreya Singhal V. Union of India [2015] W.P. (CRI.) NO. 167 of 2012

[5] Nikhil Gandhi, “what TikTok India said day after being blocked” NDTV (India, 30 June 2020)

[6] Isaac Yee, Michelle Toh and Hanna Ziady, Beijing says it’s “strongly concerned” by India’s decision to ban Chinese apps, CNN Business (China, 6th July, 2020) https://edition.cnn.com/2020/06/30/tech/india-china-app-ban-intl-hnk/index.html

[7] China: India’s ban on Chinese apps may violate WTO Rules (CGTN, 1 JULY 2020) https://news.cgtn.com/news/2020-07-01/China-India-s-ban-on-Chinese-apps-may-violate-WTO-rules-RLyGBmnSaQ/index.html

[8] Philip Oommen, Critical Analysis of legality of Chinese apps ban, (Latest law, 6th July 2020) <https://www.latestlaws.com/articles/critical-analysis-of-legality-of-chinese-apps-ban/ >

The author undertakes that the work submitted is an original creation of the author. The author has not previously submitted the article for the purpose of publication. Any similarity with a previously published content is not intentional. The author shall be personally liable for any infringement of intellectual property of any person, organization, government or institution.