The Chinese App Ban Through the Legal Prism: A Critique

Amol Verma, CNLU, Patna

Introduction:

In the past few weeks, tensions had escalated between India and China. Earlier in May, four Indian soldiers were injured after a brutal face-off with the Chinese Army at the bank of the Pangong Lake. Amidst de-escalation talks between the diplomats of the neighbouring nations, twenty Indian soldiers were killed in a confrontation. The confrontation was one of the deadliest Indo-China conflicts since 1975.

Recently, The Ministry of Electronics and Information Technology exercised its power under Section 69A of Information Technology Act, 2000 read with the provisions of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009 and decided to ban 59 Chinese Apps including TikTok. The ban has been imposed citing the reason that the information available from these apps is prejudicial to the sovereignty and integrity, security, defence, and public order of India. It can be reasonably deduced that the digital strike on Chinese applications is linked to the recent stand-off at the Line of Actual Control (LAC) and is some sort of retaliation for the military threat faced by India at Ladakh.  

The Sovereignty and Security Conundrum Surrounding the Chinese Applications

The sweeping ban on Chinese applications has been undertaken with the objective to safeguard the privacy and interests of Indian Citizens. The government, through the press release, cited that there have been various privacy and security problems with these apps with occasional incidents of data theft and transfer to servers located outside India. Furthermore, the Ministry of Information and Technology emphasised that the apps were occasionally reported owing to their misuse of secretively and unauthorisedly handling the users’ data. Moreover, the recommendations to block the Chinese apps were also pushed by the Ministry of Home Affairs and the Cyber Crime Coordination Committee. The government based on the above inputs and recommendations, aims at protecting the integrity and sovereignty of Cyberspace in India.

A pertinent question remains as to why only the Chinese applications have been banned when there are several applications from other countries that pose similar or even worse challenges. Concerns have also been raised by privacy advocates in India about Facebook that it illegally collects data from its users. Furthermore, India’s indigenously developed Covid-19 tracker ‘Aarogya Setu’ has been subjected to much flak from the privacy activists owing to the grossly invasive nature of the application through GPS and Bluetooth and its mandatory application by the Government of India. Therefore, the move to block the Chinese apps appears to have been initiated to satisfy the prevailing Anti-Chinese sentiments among the Indian population.

Lack of Transparency and a Blow to the Freedom of Speech and Expression

The government order under 69A is legally on an unsound footing. Extracting data of the users in an illegal manner is a significant security concern for any application. However, Section 69 is not designed to deal with safety or privacy concerns. The provision merely acts as a content regulation mechanism and can only block the inappropriate content on platforms by blocking it. Rule 5 of The Information Technology Rules, 2009 provides that access to online information can be blocked by a designated officer and he shall exercise his powers only when a request is made by a competent court or a nodal officer. However, in the present situation, the procedural formalities as laid down under Rule 5 have not been complied with.

Furthermore, Rule 8 of the Information and Technology Blocking Rules, 2009 specifically provides for a defined process of notice hearing and a well-reasoned order. These procedures have been laid down in the case of Shreya Singhal v Union of India. In disregard to the rules mentioned above, neither was a blocking request made nor was a notice served to the Chinese applications and websites before the said ban came into effect.

Section 69A is one of the various laws that fall within the bracket of reasonable restrictions under Article 19(2). Thus, the power to limit the fundamental right by blocking public access to information of the users can be exercised only when there is a threat to the sovereignty and integrity of India, defence of India, public order, or security of India.  The Apex Court in Anuradha Bhasin v. Union of India has pointed out that any embargo on the fundamental rights of the persons must only be put when it is of utmost importance to achieve a legitimate aim. If there is any other least restrictive measure, then that should be adopted. Therefore, in light of the Supreme Court’s judgement, a blanket ban on as many as 59 applications when other alternatives such as that of restrictive use of the said apps can be explored is undoubtedly not the least restrictive measure and thereby the ban clearly violates the right to freedom of speech and expression guaranteed under Article 19(1)(a).

Most importantly, the move to ban Chinese applications lacks transparency and appropriate disclosure. The public release by the Ministry of Electronics and Information Technology is not sufficient to list out the legal intricacies involved behind Chinese app ban. A well-drafted legal order by the government, listing out the legal grounds/reasons on which the said move has been initiated is much needed. Moreover, the government owes a duty towards the citizens as well the applications and websites to make them aware of the legal grounds on which the order has been passed.

Challenges and Way Forward

The much-debated move of the government to ban the Chinese apps is bound to present problems such as loss of livelihood for the users and unemployment at a larger scale given the vast user base of these applications in India. Among the 59 applications banned, TikTok has been the most discussed and rightly so because the platform allowed the users to produce content with limited means thereby allowing people from even the most underprivileged of societies to showcase their talent. The absence of such an application means the absence of a platform and disposition to express human agency. On an estimate, nearly 119 million TikTok users are set to be devoid of their source of income. Given the condition of the already dwindling economy amidst the existing plight of the pandemic, the repercussions of the ban are going to be gross.

International relations between these two neighbouring countries are going to descend even further. The diplomatic tensions between the two countries might further get catalysed as China is known for its retaliatory measures. America has praised India’s efforts to ban the Chinese applications and is keeping a close watch over the Indo-China row. Hence, it is highly likely that we witness clashes between China and India in the near future with the US backing India. Whatever is the turn of events, international relations and diplomatic ties are bound to suffer a significant setback.


Amol Verma is a student at Chanakya National Law University, Patna.


Photo Credits: NOAH SEELAM/AFP

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