Legal implications of banning Chinese apps: Cyberspace no longer independent
July 20, 2020
The Ministry of Electronics and Information Technology [“MeitY”]under the current regime recently banned 59 Chinese apps.[1]While invoking it’s power under Section 69A of the Information Technology Act r/w Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009 [“Blocking Rules”], the government decided to block the apps due to concerns relating to data security and safeguarding the privacy of Indians. The press release further stated that the compilation of these data, its mining and profiling by elements hostile to national security and defence of India, which ultimately impinges upon the sovereignty and integrity of India, is a matter of very deep and immediate concern which requires emergency measures.
Therefore, it is pertinent to find out whether the order can be challenged in an Indian Court. Further, the author also tried to ascertain the balance between the right to freedom of speech under Article 19(1) and the right to privacy by the Indian Judiciary, relating to banning of apps.
As the population of internet expanded from a small group of academics to billions of people on their smartphones around the world, the imposition of regulations by the government was foreseeable. Unfortunately, 24 years on, Barlow’s utopian vision for the internet did not materialize. In its place we have widespread government surveillance,[2]concentration of power with Multi-National Corporations[3]and widespread online harassments.[4]
India has had plenty legal precedents wherein the Courts aimed at striking a balance between the right to freedom of speech under Article 19(1) and the right to privacy. India introduced the regulatory structure for the cyber environment in the context of the E-Commerce Act, 1998. The basic legislation for cyberspace transactions in India has subsequently emerged in the form of the Information Technology Act, 2000 [“IT Act”],amended in 2008. Unlike other countries like EU, India still does not have a comprehensive and dedicated data protection legislation. However, certain provisions of the IT Act and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 [“SPDI Rules”]deal with protection of personal information and sensitive personal data and information.[5]
The Central Government in exercise of the powers conferred by Section 87 (2) (ob) r/w Section 43A of the IT Act, 2000 set restrictions on international data transfer under Rule 7 of the SPDI Rules. Accordingly, sensitive personal data or information can be transferred by an entity to another entity in a different jurisdiction, provided that the transferee entity ensures the same level of data protection that is adhered in India, under the SPDI Rules.[6]
It is also worthwhile to note that transfer of personal data to other jurisdictions does not require any prior approval from the data protection authorities. There is not such provision prescribed under the IT Act or the SPDI Rules. However, under the proposed PDP Bill, sensitive personal data to be transferred, may require approval from Data Protection Authority of India or the Central Government.
In April 2019, a similar communication was sent by the MeitY to both Google and Apple to ban downloads of TikTok app on Google Play and Apple App stores. The Madras High Court in S. Muthukumarv.Telecom Regulatory Authority of India, Ministry of Communications & Ors.,[7] tackled a similar issue. Ironically, while discussing the mass appeal of the app, the Court observed that ‘since it’s introduction in overseas market by China, TikTok has spread like a virus’. However, the contention of the petitioner in the writ was the vulnerability of children due cyber crimes and misuse of the app. The petitioner also emphasized on the widespread circulation of pornography, susceptibility of children to paedophiles, degrading culture and social stigma, within the writ petition. While disregarding the protection given to online intermediaries like TikTok under Section 79 of the IT Act, the Court issued an Interim Order prohibiting downloading of the TikTok app. The Court cited the prohibition of the suicide game ‘Blue Whale’, which had its origin from Russia, within the order. It is to be noted that the Madras High Court did not follow the dictum of the Apex Court in the case of Shreya Singhal v. Union of India, wherein the court observed that intermediaries are neutral platforms that cannot judge the legitimacy of the content posed on their website.
Subsequently, when the Supreme Court refused to stay the interim order, the Madras High Court lifted the ban on TikTok, three weeks after the Interim Order. Amicus Curiae cited the safeguards within the IT Act to intermediaries like TikTok against liability for content created by the users. The security mechanism within the app was also explained while citing the financial loss of up to $500,000 a day due to the ban.
The regulatory environment is clearly tilting towards jurisdictional over-regulations. States extending their jurisdiction and application of their laws to internet activities has been unprecedented. Such control by the government of online environment results in the creation of more laws.
The power to pass an interim blocking order in the aforementioned case, without giving notice and opportunity of hearing to the opposite party, is derived from Rule 9 of the Blocking Rules which warrants such imposition in emergency situations. Even in the present circumstances, the press release by MeitY has an effect of an interim ban without the opportunity of hearing. Regarding the opportunity of hearing, the same has been provided through Rule 9 (3), taking the course of Rule 8 of Blocking Rules. The same is achieved by a post-decisional hearing. Therefore, detailed examination under Rule 8 is still pending.
TikTok ban created massive attention to the banning of the Chinese app. However, another app which could potentially be harmed is the e-sports giant, PUBG Mobile which has more than 50 million Indian players. The app was saved during the Modi government’s China purge due to its Korean origin. Thus, it implies that investment or distribution of a product by China, is not regarded as a basis for banning the same.
[1]Press Information Bureau, Government of India, Ministry of Electronics & IT, Government Bans 59 mobile apps which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order, 29thJune, 2020. Available at https://pib.gov.in/PressReleseDetailm.aspx?PRID=1635206.
[2]The Guardian, Mass internet surveillance threatens international law, UN report claims, 15thOctober, 2014.
[3]The Guardian, Facebook and Google: most powerful and secretive empires we've ever known, 28thSeptember, 2016.
[4]The Guardian, A normalization of violence: how cyberbullying began and how to fight it, 22ndNovember, 2016.
[5]Harsh Walia & Supratim Chakraborty, India: Data Protection Laws and Regulations 2020, ICLG.com, 6thJuly, 2020.
[6]Rule 7, Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.
[7]S. Muthukumarv. Telecom Regulatory Authority of India, Ministry of Communications & Ors, Writ Petition (MD) no. 7855, 2019.