Legal Perspective of the Digital Strike
This is an exhaustive and comprehensive research paper on the topic ‘Legality of Banning Chinese Apps in India’ by Anushka Ashok Mhatre, 2nd year BBA LL.B student at the University of Mumbai Law Academy.
Data privacy is one of the biggest problems in this digital world. Unauthorized access to personal data violates a person’s privacy and leads to a number of problems ahead. The issue of data privacy led to a ban of almost 224 Chinese applications in India. These apps were raising various security issues. The ban was imposed under Section 69A of the Information Technology Act, 2000 in the interest of the national security of the country. This article throws light on the legal provisions and constitutional perspective of this ban on Chinese applications. The article further discusses the socio-legal effect of the ban on Indian society. It further stresses the need for Personal Data Protection laws in India.
Keywords: ban, apps, privacy, national security, security, blocking, Information Technology Act.
The Ministry of Electronics and Information Technology has blocked 224 Chinese apps in India till date, invoking Section 69A of the Information Technology Act, 2000 along with the relevant provisions of the Information Technology (Procedure and Safeguard for Blocking of Access of Information by Public) Rules, 2009. The banned apps include social media applications like WeChat, TikTok, Hello, etc., shopping apps like clubfactory, shein, etc. and other similar applications like Pubg, ShareIt, CamScanner, etc. The banned apps were stealing and secretly transmitting user’s data in an unauthorized manner to servers outside India. This unauthorized compilation of data endangers sovereignty and causes a threat to the security and integrity of the country. The Ministry in the press release specifically stated that the unauthorized access and misuse of data is a matter of very deep and immediate concern and it requires emergency measures. The latest ban imposed on 2nd September 2020 is the third in a series of bans. The government has already banned 106 Chinese apps in India in June and July.
PROVISIONS AND PROCEDURAL SAFEGUARDS
Section 69A (1) of the IT Act empowers the Central Government to enable the blocking of certain information generated, transmitted, received, stored, or hosted in any computer resource, if it satisfied that it is expedient to do so in the interest of sovereignty and integrity of India, defense of India, the security of the state, friendly relations with foreign states, public order, for preventing incitement to the commission of any cognizable offense relating to above. Failure to comply with the directions as issued by the government under this section shall be punished with imprisonment for a term of maximum of seven years and shall also be liable to fine.
Section 69A (2) of the IT Act states that blocking for access has to be in accordance with the procedure and safeguards laid down by the provisions contained in the IT Rules. Compliance with these procedures and safeguards is mandatory and not discretionary. The procedure under the IT Rules provides for an institutional framework, wherein the Central Government is enabled to act upon the complaints and requests received from the general public regarding blocking certain computer sources. The procedure to be followed in blocking of access is laid down under Rule 5 to Rule 8. As per the procedure, complaints and requests have to be forwarded to the duly appointed, Designated Officer under Rule 3. The said procedure can be differentiated as Usual Procedure and the Emergency Procedure. Under these rules, the Central Government has the power to block access to applications and websites. It can do so after giving intermediary and concerned other persons notice for appearing and submitting the replies before the Committee which is formed under Rule 7 of the IT Rules. The recommendation of the committee for the ban will be sent to the Secretary of the Department of Information Technology and on the approval by the Secretary, the designated officer shall proceed with the decision of blocking. However, in cases of emergency, if the Secretary is satisfied with the “specific recommendations” of the Designated Officer that the complaint is within the scope of the grounds mentioned in Sec.69 (1) of the IT Act, he is empowered to take interim measures to block access to certain websites and applications. Within 48 hours of issuing such interim order, the Designated Officer has to refer the complaint to the Committee for approval which further gives a specific recommendation to the Secretary. The final order confirming the interim order shall be passed if approved by the Secretary.
THE PRESS RELEASE AND THE STATUTORY SAFEGUARDS
The Secretary of the Ministry of Electronics & Information Technology has banned 224 Chinese applications till date by an interim order. The Press Release by the Press Information Bureau is the only source of information available for the order of banning these apps. The press note did not explicitly mention the rule under which the government had proceeded, it appears that the Government has relied on Rule 9. It described it as a matter of immediate concern which requires emergency measures. The emergency may be attributed to the rising levels of tension between India and China. The constitutional validity of Section 69A was upheld in the case of Shreya Singhal v. Union of India. In this case, the Supreme Court upheld the validity of the IT Rules further elaborating that blocking can be resorted only by the Central Government if satisfied that it was necessary to do so. The reasons for the blocking must be recorded in writing so that they may be assailed in writ petition under Article 226 of the Constitution. Thus, the ban by the Central Government is legal and valid.
RIGHT TO INFORMATION v. RULE 16
Rule 16 of the IT Rules provides that “Strict Confidentiality shall be maintained regarding all the requests and complaints received thereof”. Any information about the complaints received is left outside the ambit of the Right to Information Act, 2005. Therefore, the Ministry is not required to disclose any information of the complaints as they form the fundamental basis of the Ban.
THE BAN FROM A CONSTITUTIONAL POINT OF VIEW
Internet is a fundamental right and a major means of spreading information. The Internet has become a part and parcel of one’s life. It is a medium for expressing one’s views, portraying talents. It is a tool for trade and business. But, the Court in the case of Anuradha Bhasin v. Union of India held that the degree of restriction and the scope of the same, both territorially and temporally, must be legitimate to combat an emergent situation. Privacy concerns were cited as reasons for the ban on these applications. Data of thousands of users was leaked to servers outside the country. The government also stated that several citizens had reportedly raised concerns to the Indian Computer Emergency Response Team (CERT-In) regarding the security of data and loss of privacy in using these apps. In addition, the Ministry stated that it had also received “exhaustive recommendations” from the Home Ministry’s Indian Cyber Crime Coordination Centre. Thus, the ban is constitutionally valid in order to safeguard the privacy of the people and protect the national integrity of the nation.
CAN THIS ORDER BE CHALLENGED IN THE COURT OF LAW?
The ban on these apps can be challenged by either the companies or any affected individual in India for violation of the right to freedom and expression as well as the right to trade under Article 19 of the Constitution of India. If challenged by the companies, then the courts will look at the fact whether the government has provided sufficient explanation for the banning of these Chinese apps. The courts will further decide the validity of this order by analyzing the nexus between the reason given by the government such as national security and strategic interests and what the banned apps were actually doing. The court will also consider the necessary steps that could be taken if the ban is inappropriate.
THE SOCIO-LEGAL EFFECTS OF THE AN ON INDIAN SOCIETY
A report by Paulson Institute’s MacroPolo Think Tank in April 2020, 6 of the top 10 most downloaded apps in India were from Chinese companies, as compared to 4 from US companies. The banned apps witnessed 4.9 billion downloads from Apple App Store and 75 Crore downloads from Google Play Store in India since 2014 till the time the order for the ban of these apps was not passed. Around 30% of TikTok users were from India. TikTok was a platform for people to portray their ideas in front of the world. This app was a source of livelihood for many. Report says, on an average, 5.5 billion hours were spent on this app by Indians in 2019. Some apps on the banned list are very popular in India, especially like social media platforms – Helo and Likee, as well as video chat app Bigo Live. They were immensely popular among Indians who are not comfortable in English. WeChat was immensely popular amongst the Tibetan refugees in Delhi who used to connect to their families and friends in Tibet. Also, many Indian students who had enrolled in Chinese universities were dependent on such apps. Millions of Indian users will be adversely affected due to the ban. How far the restriction is proportional is a question. The straightaway ban seems a little vague. The Government should provide a justification regarding every application. The Government should provide content-specific reasons.
But looking at this ban from another point of view, it has certain benefits as well. Privacy issues will be resolved to a certain extent. Also, the application called Pubg which was immensely popular amongst the young generation also had an adverse effect on their health. It was an addiction in various age groups of India. In addition to this, directions were issued through a writ of Mandamus by the Madras High Court for the ban of TikTok as it exposed young minds to pornographic and disturbing content. It was withdrawn only after ensuring that TikTok sets up adequate safety protocol. The blocking and banning of Chinese apps have created an immense opportunity for the Indians. This has opened doors to Indian app developers to come up with new applications. This is a big opportunity for the Indian IT sector to come up with new things. The real effects of the ban of these apps will be more clearly seen in the coming future.
ARE THERE ANY ALTERNATIVES AVAILABLE?
It is quite tough to find new alternatives to the banned apps as these apps were used by everyone on a daily basis for entertainment, editing, etc. But, there are other options available. Chingari, an Indian origin video app experienced its download from 1 lakh to above 1 crore on Google Play Store after the ban. ‘Reels’, an instagram feature is gaining immense popularity as a substitute for TikTok. Call of Duty, a free-to- play shooter game is gaining immense popularity amongst the young generations after the ban of Pubg. FAU-G, an Indian online multiplayer smartphone game is all set to be released in October 2020. Developed by nCore Games, this game will depict sacrifices made by the Indian Government and 20% of its revenue. An Indian document scanner has been developed by Zoho Corporation in a substitute for CamScanner.
The arbitrary blocking of social media platforms will impede Foreign Direct Investment in India. The Government can legally ban the apps under the umbrella of sovereignty, defense, and security of India as the concern for national security and data privacy is important. But, since the ban affects millions of lives, it should be more transparent. Transparency and accountability are the core elements that make a government policy effective. The Government should not overlook the economic impacts of this ban. Few of the banned apps were a means of livelihood and a platform for creative entrepreneurs. Talking about privacy concerns, such blocking orders only serve as a band-aid for the prevention of data theft and misuse. At present, what stands out most is the sheer inadequacy and lack of proper law to address data protection concerns. India’s only data protection law- Section 43A of the IT Act, is very limited in its redressal. It protects only a breach of sensitive personal data by a body corporate. Personal Data Protection Bill is the need of the hour. The world is turning digital. And to survive in this digital era, robust data privacy laws are a must.
 (2015) 5 SCC 1.
 WP (C) 1031/2019.
 What will be the impact of the Chinese apps ban? (Last modified on July 05, 2020)