Sweeping Government Ban on Chinese Apps under the Information Technology Act – Tyranny or Safeguarding?

Posted on 30 June 2020

Authored by Tanya Varshney

Source: lokmarg.com

The breaking news of the Central Government’s ban on 59 Chinese apps, including the popular TikTok, CamScanner, Shein etc., took the nation by a storm on 29th June 2020. The Ministry of Electronics and Information Technology (MEIT) passed this sweeping ban by way of a Press Release under Section 69A of the Information Technology Act (IT Act) read with ‘relevant provisions’ (unspecified which relevant provisions in the order) of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 (Blocking Access Rules). The broad reasons providing for this ban were ‘sovereignty and integrity of India, defense of India, security of state and public order’. In recent times, the Chinese apps, and particularly TikTok, have been under the heat for allegedly collecting unauthorized data which could potentially be used against national security. In United States of America, in a meeting with government officials and law makers, senator Josh Hawley discussed the dangers of the TikTok app on the devices of government officials and their families while addressing potential leaks of sensitive information. The United States also witnessed some states in favour of legislations banning TikTok, at least for federal employees. In this article, I examine the scope of restrictions under the IT Act along with the jurisprudence on blocking access and right to freedom of speech and expression.

Access to Online Apps – Fundamental Right?

Section 69A of the IT Act authorizes the Central Government to issue directions for blocking public access to any information through any computer resource where it is satisfied that “it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above”. Constitutionality of this provision was challenged before the Supreme Court in the landmark case of Shreya Singhal v. Union of India where the role of online intermediaries and freedom of speech was balanced against Sections 66A, 69A and 79 of the IT Act. The court noted the Statement of Objects and Reasons in the Amendment Act introducing this provision which justified the inclusion of penal provisions in the IT Act to combat the rapid increase of cyber crimes such as voyeurism, breach of confidentiality, data leakage by intermediaries, e-commerce frauds, phishing, identity theft, etc.  

As noted above, Section 69A authorizes the Government to block access to any information. While it is clear that the right to freedom of speech and expression under Article 19 of the Indian Constitution envisages the right to disseminate information, there is also some jurisprudence that even access to information is included under the right to freedom of speech and expression. Internationally, the UN General Assembly Special Rapporteur’s report has emphasized on the importance of access to the internet and has noted that “there should be as little restriction as possible to the flow of information on the Internet, except under a few, very exceptional and limited circumstances prescribed by international law for the protection of other human rights”. The United Nations has relied on a three part test, that is, – (a) the restriction to freedom of speech and expression must be provided by a law accessible to the public; (b) the restriction must pursue a legitimate objective such as reputation of others, public order, morals, national security, etc.; and (c) restriction must be necessary, proportionate and the least restrictive means to achieve the legitimate objective.

In India, the Supreme Court in S. Rangarajan v. P. Jagjivan & Ors also noted that when freedom of speech and expression is restricted to prevent an anticipated danger, this “anticipated danger should not be remote, conjectural or far-fetched”. In Ramji Lal Modi v. The State of U.P., the court noted that there must be a ‘tendency’ to cause public disorder. In Shreya Singhal, the court held Section 66A to be unconstitutional and violative of Article 19(1)(a) due to its vague language and broad scope. However, Section 69A provides the grounds for blocking access similar to the reasonable restrictions envisaged under Article 19(2). Thus, there is a legitimate objective enshrined under Section 69A. Now the pertinent question to answer is whether the Government’s ban on 59 apps was an excessive restriction to pursue the legitimate objective and whether there was an imminent threat which justified this sweeping ban.

Scope of Blocking Access Rules

Under the Blocking Access Rules, the Designated Officer appointed by the Central Government can issue directions to block access to information as per Section 69A. Rule 5 states that the Designated Officer may direct any agency of the Government to block access to information on receipt of a complaint from the appointed officer of an organization or a competent court. Based on a reading of this rule, it is unclear whether the Government or the Designated Officer has suo moto powers to issue directions blocking access to online content. Further, Rule 8 also states that the Designated Officer has to issue a notice to the intermediaries or controllers of the computer resource to submit their reply and clarifications. It is also mentioned that this notice requirement applies to foreign entities as well.

However, these Rules also allow for emergency blocking under Rule 9. The Designated Officer may issue directions to block access without complying with the procedure laid down in Rule 8 in cases of emergency where “no delay is acceptable”. The blocking request must be within the scope of the grounds stated under Section 69A and it must be “necessary and expedient” to block such information. It is also noted that the blocking orders must be examined by a Review Committee at least one in two months. In Shreya Singhal, it was argued that Section 69A and the Blocking Access Rules do not afford any ‘pre-decisional hearing’ to the intermediaries and that the procedural safeguards are not sufficient and proper. However, the Supreme Court opined that the scope of Section 69A is not as broad and vague as 66A. The court also noted that “blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do” and that the grounds for necessity are similar to the reasonable restrictions stated under Article 19(2). Moreover, the blocking order must provide reasons for such blocking in writing which could be challenged in a writ petition under Article 226 of the Constitution. In light of these reasons, the Supreme Court upheld the validity and constitutionality of Section 69A read with the Blocking Access Rules. However, it must be noted that these provisions afford the Government to make a decision whether blocking is justified “in their opinion”. One may ask – whether this is too much law-making power at the hands of Government?

The Press Release by MEIT stated that they received “many complaints from various sources including several reports about misuse of some mobile apps available on Android and iOS platforms for stealing and surreptitiously transmitting users’ data in an unauthorized manner to servers which have locations outside India”. There have also been serious border tensions between India and China which have also resulted in severe casualties. Undeniably, there is a situation with potential threat to India’s national security. However, these circumstances alone should not be enough to justify such a sweeping ban. There must be objective reasons indicating that these content platforms are posing a threat to national security and their blocking is ‘necessary and expedient’.

What Lies Ahead – International Conflict?

General Comment 34 to the International Covenant on Civil and Political Rights (ICCPR) (ratified both by India and China) clarifies that suspending access to or blocking of online platforms is an interference to the right to freedom and expression. Not only does the blocking order interfere with the right of users to access these online platforms, but it also interferes with the online platforms’ right to disseminate their content. It is certainly a possibility that this dispute may reach the international courts soon – even if not by China but by one of the 59 apps which have been blocked. Based on the international jurisprudence, various judgments of the European Court of Human Rights[1] have noted that there must be a ‘pressing social need’ to justify such restrictions. The other point of contention is that the restriction must be the least restrictive means to pursue the objective[2]. On the other hand, there are concerns of data privacy which must be balanced against the right to access. Intermediaries who process and collect ‘unauthorized data’ beyond the scope of their consent terms that are usually captured by way of click-wrap agreements should also be held responsible for unlawful data processing. However, lack of any examination reports by the Government of India at this stage make it difficult to assess whether there was scope of unauthorized data processing or not.

Many have criticized this order for giving vague and unsubstantiated reasons while others have supported this decision in light of the tensions with China. However, objectively, this decision may set a dangerous precedent for the future to allow such sweeping bans on grounds such as sovereignty, public disorder and national security. It would be interesting to see whether this decision reaches the Indian courts or International courts and what the outcome of that would be. Though for now, there appear to be legitimate reasons that justify this blocking but the question of ‘necessity’ remains open.

[1] See Lingens v. Austria (8 July 1986) Series A no 103, para 39; Handyside v UK (7 December 1976) Series A no 24, para 48.

[2] Mouvement Raëlien Suisse v Switzerland App no 16354/06 (ECtHR, 13 July 2012), para 75; Morice v France App no 29369/10 (ECtHR, 23 April 2015), para 127

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