LEGALITY OF INDIAN BAN ON CHINESE APPS

Reading time : 6 minutes

Introduction-

On 29th June, 2020 the Indian ministry of electronics and IT (MeITY) circulated “blocking order” banning 59 Chinese apps as per section 69A of information technology act, 2000. Further in September, 2020, government banned 118 more apps and in following November 43 new apps were banned. These apps were supposedly removed from the play store and apple’s app store and Indian telecom service provider were instructed to “block internet traffic to these enumerated apps”[1]. As for the reason of the ban, cited by the government, use of Chinese apps raises concern regarding data mining, profiling, and data collection which purportedly affects and is perilous for the sovereignty and integrity of the nation, security of nation and public order. Almost seven months from the temporary ban of apps, government of India banned these 59 apps permanently. Although the blocking order was imposed as per the prevailing law of the land, but internet policy experts express their concern because of lack of transparency with these bans. Section 69A maintains strict confidentiality regarding complaints and actions taken thereof. This clause renders right to information (RTI) queries inapplicable to the law. Therefore, through this article researcher has tried to look at the legal angle of such a ban at the both national and international level.

What does section 69A of IT act says?

Section 69A of Information Technology Act, 2000, was introduced in the year 2008, via an amendment. This section allows central government to block open accessibility of any information over the internet; be it website or app[2]. It states, if any online information threatens the security and integrity of the nation, or uproots the public order or tries to hinders the friendly relation with the foreign nation than, Indian government can block its access after following the due process of law. The detailed procedure for the same is prescribed under the Information Technology (Procedure and Safeguards for Blocking Access of Information by Public) Rules, 2009. Along with this, a court too can issue blocking orders and telecommunication department can also release blocking orders to the telecom service providers in order to fulfill licensing conditions.

Procedure of blocking under blocking rules:

Section 69A of IT Act establishes that every Central, State and Union Territory Ministry will assign a ‘nodal officer’ who will receive and maintain complaints of websites and apps that encourage “offensive content”, and after the nodal officer is positive about the respective complaint, it may forward so to the designated officer, who then further examines it by setting up the grievance committee.

The committee compromises of officers from the ministries of law and justice, home affairs, information and broadcasting and the Indian Computer Emergency Response Team (CERT-In), and they hear the aggrieved party. Now, once the hearing is over the designated officer may give directions to block the content under the usual circumstances but only on the approval of the secretary of the department of Information Technology.

This section also provides for the complaint under the head of “emergency nature”, in which the designated officer upon the examination and merit of blocking request submits proposition to the secretary of ministry of electronics and Information Technology, who may further issue the blocking orders, as transitional measure. Under emergency cases, the aggrieved party is not allotted hearing until later. Nevertheless, within the 48 hours of such interim order, the designated officer ought to bring the matter in front of the committee. Then, the officer shoots a notice to the website in question and ask it to send in a representative before the committee at specific date and time. Representatives are offered minimum of 48 hours to prepare for the hearing and then the advisory is conveyed to the IT secretary for final approval. This section provides power to the secretary to disapprove the blocking request. Further it also establishes a review committee to check the geoblock, once in two months and if convinced may reverse the blocking order upon misappropriate usage of law.

Government of India issued the blocking order against these Chinese apps under the head of “emergency nature”.

Substantiality of geoblock:

Reportedly, certain apps including Tiktok felicitated self-expressions and allowed propagation of information, which per se is protected under the article 19(1)(a) of Constitution of India. In the judgement of Faheema Shirin v. State of Kerala, Kerala High Court[3] prominently declared access to internet as one of the fundamental rights and violation of such would be against the right to privacy. In another landmark judgement of Anuradha Bhasin v. Union of India[4], supreme Court of India observed that indefinite suspension of internet might amount to exploitation of power. Keeping these judgments in mind, it becomes important to examine the freedom of internet and information with respect to the geoblock of Chinese apps by the government. In this context, Freedom of expression under article 19 must be inclusive of the right to choose the platform on which individual wants to express itself and even the manner for that matter.

The observation made by the Supreme Court of India in the case of Justice Puttuswamy v Union of India[5] and decision concerning the case of Modern Dental College states that the rights cannot be reviewed at separate footing for every right complement each other one way or another. The basis for the application of blocking order against Chinese apps should lie among the enumerated exceptions listed under article 19(2) i.e., public order, national security, etc. but considering the interconnected nature of constitutional rights, the restrictions should comply with the right to equality i.e., should be just, fair and reasonable under article 14. Unlike article 19 that provides freedom of profession, under which aggrieved party cannot seek protection because this freedom is exclusively for citizens only; article 14 can be enjoyed by both citizens and non-citizens. Representatives of banned apps may seek protection under right to equality by citing dissimilar treatment with the apps developed in other countries having data laws similar to that of Chinese apps. Hence, China claims that the blocking order is discriminatory in nature for there are many apps such as Facebook, google, etc., with data laws inconsistent with the privacy laws in India, and still were not banned. It should be noted that recently, Calcutta high court has maintained that even foreign entity can file writ petition under article 226, in the Indian court of law.

Furthermore, article 14 permits certain dissimilar treatment between two different groups on grounds of reasonable classification. Now, the categorization between two groups is reasonable i.e., Chinese apps and apps based out of another countries; provided it fulfills two conditions: a) there lies “intelligible differentia”, or any distinct attribute between the two categories b) the differential treatment has a reasonable justification for how it helps to achieve the object.

The order treats Chinese apps differently from all the other apps similar in nature, against which many security concerns have been raised in the past, for instance cybersecurity, third party data sharing, spread of misinformation, etc. If examined Chinese apps are not alone when it comes to mass data collection and mining. In fact, there are American and European apps against which concerns were raised in their home countries itself.

Conclusively, the abovementioned points clearly indicate arbitrary nature of geoblock against Chinese apps.

Suitability of India’s purported reasoning:

Indian government while imposing blocking order cited that data laws of China based apps are threatening for the security and integrity of the nation and can disrupt public order. Moreover, section 69A provides for an emergency clause as discussed above concerned with the nation’s security. It can be seen that the notification i.e., section 69A is legitimate and backed by law, it allows government to restrict operation of targeted websites and apps. Section 69A provides for the procedural and substantive safeguards against unreasonable restriction to the access to internet. Nevertheless, as hinted in the review report on legality of Arogya setu app, courts rarely concern over the absence of specifically numerated statutory safeguards in violation of fundamental rights. Since, notification itself has the adequate force of law i.e., it has been made entirely as per the prevailing statutory framework, the notification banning Chinese apps cannot be declared unlawful for it’s contemplated under the scope of section 69A[6]

Furthermore, in 2015 the supreme court of India in the landmark judgement of Shreya Singhal v/s Union of India case[7], sustained the validity and legitimacy of section 69A and its blocking process (para 111). It further declared law to be constitutional and stated that a traffic service to a website can be blocked on merit of the complaint. Supreme Court also put emphasis on the safeguards provided under the section i.e., online information can only be blocked after receiving the approval from the committee and how this section upholds the principle of Audi alteram partem.

Although, in Anuradha Bhasin v. Union of India & Ors., Supreme court of India stated that section 69A with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 empowers the Government of India to enforce carefully stitched restriction on the access to content (para 81).

Restriction should be imposed on some specific platforms, precisely content with high risk factors not on the access to a specific group of content, as a whole. Granularly planned geoblock can be upheld constitutional and proportionate but, blocking order on the access of 59 apps of a specific classification give rise to the scope of doubt.

There is not enough information on exactly how does Chinese apps pose threat to the public order or how it compromises India’s security to the extent, that Indian government had to ban in total of 106 apps. It should be noted that Chinese apps have been functioning in India for quite some time now and the Chinese data laws has been enforced much before the order. Hence, there seems no “apparent emergency” which may demand the government to block these apps as per emergency procedure. However, many reports suggests that data laws of China authorize app services to share data or other information upon demand. Moreover, many research shows that Chinese apps like Shareit, Tiktok etc., gather information in excess to what is necessary to render respective services, information like-precise location information, storage permission, camera permission, etc. While this suggests, stricter privacy safeguards should be imposed by the Chinese apps, a research comparing China based apps and other apps of similar nature should be organized. A detailed comparative study measuring how Chinese apps threaten security concerns much more than other apps like the notification stated, would help establish suitability of geoblock specifically against Chinese apps.

Legality of India’s ban under international law:

India and China had a bilateral investment treaty which was enforced in the year 2007 (the BIT). Though, India brought an end to this agreement in 2018 itself, article 16 of BIT (known as sunset clause) establishes that investments made before the termination of the BIT will continue to be safeguarded under the provision of the BIT for the next 15 years. And most of the Chinese apps have been functioning in India prior to the termination of BIT, for instance, Tiktok was launched by the China outside the host nation in the year 2017[8].

A significant pre-condition to avail the protection under BIT is that the foreign investor should have “assets” that characterize as an “investment” in accordance to the BIT. Although, the BIT explicitly does not categorize websites and apps as an investment, but the definition of investment is broad enough for Chinese apps to lie within its scope.

(a) First, incorporeal properties such as intellectual property rights (“IPR”) prominently qualify as ‘investment’ under the BIT. Apps qualify under the purview of IPR due to three reasons:

 (i) source codes and user interfaces will be considered as IPR.

 (ii) Apps have fair share of market and goodwill, which is prominently accepted as part of IPR.

(iii) A website domain name shall constitute a trademark.

(b) Second, agreements that provide contractual rights of monetary benefits, or certain functions or operation having monetary value will constitute ‘investment’.

The qualification of abovementioned conditions make Chinese apps eligible under the definition of ‘investment’ and will receive benefits under the BIT.

Furthermore, article 3 under the BIT provide for “fair and equitable treatment” and blocking order was in direct violation of the FET. FET is considered as encompassing as well as an obligation to accord due process to investors. Due process of law states that the host nation should give notice of adverse action in advance to the aggrieved party or investors, provide them enough opportunity of being heard and further examine the matter in a fair manner. Hence, action taken by India results in violation of its obligation under international investment law.

International diplomacy experts have varying opinion on India’s actions. Although, Chinese diplomats are unlikely to challenge this move in front of WTO panel, owing to lack of sector specific commitments by India for mobile app operators. Nevertheless, practices such as blocking order is discouraged on international forum because they falsely signify regressive approach towards international diplomacy along with disobey of international codes.

Conclusion:

For Indian government to show that this geoblock is necessary, it will have to establish that in order to achieve the purported objective no less restrictive mean could have been adopted. To do so, first, government has to demonstrate that it is important to ban all the apps enlisted in the appendix. Since apps included in appendix is of varying functionality, hence the degree to which they pose threat to the nation’s security must also be of different measure. Therefore, just to ban all of them based on their country of origin, seems unjust.

The restriction should have been narrow in nature i.e., only army personal or person holding public office or judicial office should be restricted from using such Chinese apps, for these are the people who handle material data in day-to-day life. These are only some recommendations that could have been adopted by the government to achieve purported goals.

Furthermore, such move on the part of government raise uncertainty about prevailing regulatory policies. It may raise question about India’s tech policy and might scare off foreign investors due to dithering laws and regulations and make them think on future investment plans in India. At present, India’s data protection bill is being examined before joint parliamentary committee and until the policy is passed, India doesn’t have any substantive data protection law to rely upon to check the practices of apps and websites regarding data theft, mining, etc. In such scenario, government is left with IT Act for user data protection. As discussed above, all the player should be subject to law equally and not just Chinese apps because, issue of cyber security risks are there with many major apps in the market either Chinese or other foreign countries. It should be noted that for data protection, legislative means should be enforced, punishments or penalties which are reasonable but bans.


[1] India bans 47 more Chinese mobile apps, 250+ apps reportedly under scanner over privacy concerns, available at: financialexpress.com (last modified: July 27, 2020 1:18 PM)

[2] Can Chinese apps appeal India’s ban? Section 69A of IT Act has the answer, available at: theprint.in (last modified: July 6, 2020)

[3] Faheema Shirin R.K vs State of Kerala and others (WP (C)No.19716 OF 2019)

[4] Anuradha Bhasin v. Union of India, [(2020) 3 SCC 637]

[5] Justice Puttuswamy v Union of India [Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1]

[6] Examining The Legal And Policy Process Behind India’s Ban On Chinese Apps, available at: thewire.in (last visited: July 19,2020)

[7] Shreya Singhal v/s Union of India [(2013) 12 S.C.C. 73]

[8] Insight, Illegality of India’s ban on Chinese apps under international law, July 2020

Author: Devyani Mishra, NLIU, Bhopal

Editor: Kanishka VaishSenior Editor, LexLife India.

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