India Takes a Tough Stand on Neighbouring Apps
The Indian Government in an unprecedented move, recently blocked 224 mobile applications (apps) offered by Chinese developers from access and download by users in India. This took place through blocking orders issued by the Government between June and September. Some of the blocked apps include renowned apps such as Helo, TikTok, SHAREit, UC Browser, Club Factory, WeChat and Shein. The Ministry of Electronics and Information Technology, Government of India (MeitY) via press releases dated 29thJune[i] and 2nd September[ii] informed the public of the blocking of the apps.
Since this development, most of the apps listed in the press releases have been taken down from the Google and Apple app stores. In this article, we analyze the legal and regulatory framework under which the Indian Government issued blocking orders for select Chinese apps.
The blocking stem from rising tensions between the Indian and Chinese Governments. MeitY in its press releases mentions that the blocking of the apps was based on information it received that the said apps were engaged in activities ‘prejudicial to the sovereignty and integrity of India, defence of India, security of the state and public order’. MeitY also took the opportunity to state that India is a leading innovator in terms of technology advancement and a primary market in the digital space. The app block also appears to be a cue to promote home-grown technological innovation and solutions. The Indian Government has since been increasingly promoting locally developed apps.
There appeared to be a sense of friction between the Indian Government and some increasingly popular app developers from outside the country. In the preceding months leading to the issuance of the blocking orders, certain Chinese apps had run-ins with the Indian authorities. For instance, TikTok was accused of allegedly promoting certain offences on women. It then had to take appropriate actions and submit a report to the National Commission of Women.[iii] Earlier, the Madras High Court in India[iv] temporarily banned TikTok for spreading pornography, exposing children to sexual content thereby adversely impacting the mindset of users.
The App Blocks
MeitY invoked its power under Section 69A of Information Technology Act, 2000 (IT Act) supplemented bythe Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (Blocking Rules) to issue the blocking orders for the apps. The blocking of the apps extends to mobile and non-mobile internet-enabled devices.
The press releases by MeitY state that there have been ‘raging concerns on aspects relating to data security and safeguarding the privacy of 1,300,000,000 Indians’ and that such concerns pose a threat to the sovereignty of the country. The press releases mention that the Government has received many complaints from various sources regarding misuse of some mobile apps for stealing and surreptitiously transmitting user data in an unauthorized manner outside India. The compilation of such data, its mining and profiling by ‘elements hostile to national security and defence of India’ infringes upon the sovereignty and integrity of India which requires emergency measures. The Government goes on to state that the Computer Emergency Response Team (CERT-In), an office within the MeitY, received many representations from citizens regarding security of their data and breach of privacy. Further, public representatives have also flagged similar concerns and there has been a strong chorus amongst the public to take strict action against apps that harm India’s sovereignty and privacy of citizens. This appears to be the first time that the Indian Government has issued blocking orders for a wide variety of apps, under Section 69A of the IT Act.
Legal Analysis of the Blocking
Information Technology Law
Section 69A of the IT Act confers on the Government and its authorized officers the power to issue directions for blocking content made available via a computer resource. This may be done by the Government when it feels it is necessary to protect the sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or preventing incitement of the commission of certain offences relating to the above. In such cases, the Government has the power to direct any intermediary to block access by the public, any information generated, transmitted, received, stored or hosted over a computer resource.
An ‘intermediary’ to whom such blocking orders may be issued, include telecom, internet and network service providers, web hosting service providers and online marketplaces. An intermediary who does not comply with blocking orders received can be imprisoned for a term which can extend to 7 (seven) years and can also be held liable to pay a fine.
The basis for the Government to issue blocking orders is derived from Article 19(2) of the Constitution of India which sets out reasonable restrictions on exercise of fundamental rights (such as free speech) and permits the Government to limit such fundamental rights in certain circumstances, subject to meeting certain checks and balances.
Blocking orders can be issued by MeitY pursuant to a complaint filed by an individual or by suo moto action. The Blocking Rules provide the procedure for a complaint to be filed under Section 69A of the IT Act.
As per the Blocking Rules, a complaint may be sent by an individual to a designated nodal officer of the Government. The contact information of the nodal officer is published on the website of MeitY. If the nodal officer determines that the content in question is in contravention of Section 69A of the IT Act, the complaint maybe forwarded to the chairperson of the content examination committee for examination. Alternatively, the complaint can also be sent by an individual directly to the chairperson for examination, upon obtaining prior permission from the chief secretary of the concerned State or the Union Territory in India.
The chairperson should acknowledge the complaint within 24 (twenty-four) hours and share the complaint with other members of the content examination committee for examination. The chairperson also identifies and requests the intermediary hosting (or individual posting) the content to submit their response to the complaint. A span of 48 (forty-eight) hours is given to the intermediary after receipt of the notice, to respond or present themselves for deposition. If the intermediary does not respond or present itself, then the committee provides recommendations to the chairperson. The chairperson provides the recommendations and the evaluation of the complaint by the content examination committee to an IT secretary at MeitY.
The content is not blocked until the final decision is made by the concerned IT secretary at MeitY. If the IT secretary decides that the content falls within the scope of Section 69A of the IT Act, the chairperson may direct the intermediary to takedown and block public access to the content. If on the other hand, the complaint is denied, then the chairperson should inform the nodal officer. Complaints that are denied may be subject to further review and appeal for verification.
In emergency situations, the IT secretary upon receipt of recommendations from the chairperson of the content examination committee, may pass interim orders for blocking of the content. Such interim measures are usually passed for 48 (forty-eight) hours until which time the recommendations of the content examination committee are obtained, and final orders are passed either upholding or overruling the interim blocking order.
In the instance of orders passed by a Court directing the blocking of content, there is no independent review of the content by the content examination committee as described above.[v] Upon receipt of the Court order, the chairperson of the content examination committee forwards such orders to the IT Secretary for issuance to the intermediary. The intermediary is then obligated to take necessary actions for takedown based on the blocking orders received.
Review of Emergency Measures
Although the blocking orders issued are not made publicly available to validate, the app blocking may have been undertaken as an emergency measure by the Government under the Blocking Rules.[vi] Although, the Supreme Court of India in the case of Shreya Singhal v. Union of India[vii] upheld the constitutional validity of Section 69A of the IT Act on the basis that there are adequate safeguards provided, it remains unclear as to whether there are adequate safeguards in case of orders issued as emergency measures. For instance, there is no specific timeline prescribed for final orders to be passed post interim blocking orders issued by the IT secretary.
International Trade Law
A concern raised with respect to the app blocks imposed by Indian Government is the possible violation of international trade law. Disputes under international trade law are overseen by the World Trade Organization (WTO).
India and China are both parties to the WTO and subject to the General Agreement on Tariffs and Trade (GATT). The objective of the GATT is to promote international trade by reducing or minimizing trade barriers. This includes facilitating cross-border supply of services from one territory to another. As per the ‘most-favored-nation’ (MFN) principle, member countries are to extend services or service suppliers of other members ‘treatment no less favorable than that accorded to like services and services suppliers of any other country’.
However, there are certain exemptions prescribed wherein the MFN principle or specific commitments may not be extended. These include measures necessary to maintain public order. Given that the Government issued press releases on the app blocks mention ‘public order’ as a reason for the blocking orders, it appears that the Indian Government has sought to avail of the exemption available.
Constitution of India
The app blocks has raised various concerns in relation to the freedom of speech and expression[viii], livelihood and privacy enshrined under the Constitution of India.[ix] The Constitution of India provides for reasonable restrictions on the exercise of fundamental rights. For a law to curb fundamental rights, it would need to pass the following tests:[x]
The need for an existence of a law; and
The law should not be arbitrary; and
The infringement of the right by such law should be proportional for achieving a legitimate state aim.
Hence, to determine whether the blocking orders are unconstitutional, one should assess whether the app blocks and its impact is proportional for achieving the purpose cited by MeitY in the press release, i.e. primarily being the sovereignty and security of the country and privacy of citizens.
The app blocks by the Indian Government as well as other cybersecurity concerns have been a subject of discussion in recently concluded Parliamentary discussions. MeitY appeared not make any specific reference to China or political ties with China as reasons for the app blocks. Furthermore, at the time being, there is no formal consideration or proposal to block other services or products manufactured in China or any other south-east Asian countries.
It is however worthy to note that the app blocks have been undertaken by the Indian Government only a few months after it amended its policy on foreign direct investment (FDI). The Government earlier in April this year issued a press note[xi] to make inbound investments from an individual or entity of a country sharing a land border with India, which includes China of course, subject to Government approval.
Focus on Domestic Innovation
The app blocks seem to run in parallel with the Indian Government’s initiatives to promote homegrown apps as substitutes and competitors on the world platform. Within a week of the first press release relating to the app blocks, the Indian Government launched its own app innovation challenge called the ‘Digital India Aatma Nirbhar Bharat Innovate Challenge’ for Indian tech entrepreneurs and startups.[xii] It appears to be an initiative under the ‘Make in India’ campaign. It is understood that almost 7000 (seven thousand) applications were received in the program.[xiii]
The program envisages promotion of existing apps and the development of new apps. The former relates to identifying the best Indian apps already in use that have the potential to become world-class apps in their respective categories. The objective is to create an ecosystem where entrepreneurs and startups are encouraged to ideate, incubate, build, nurture, and sustain technology solutions not only to users in India but the world. The latter seeks to identify Indian entrepreneurs and startups and encourage them to ideate, incubate, prototype and roll out applications.
The Way Forward
The app blocks by the Indian Government appears to be in the midst of military and political heat between the two countries. It would be advisable for both countries to engage in appropriate political and diplomatic dialogue, as it is in the interest of both countries for business and commerce to resume normally, with due respect to security, sovereignty and applicable law.
[i] ‘Government Bans 59 mobile apps which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order’, available at: https://pib.gov.in/PressReleseDetailm.aspx?PRID=1635206, last accessed on October 23, 2020.
[ii] ‘Government Blocks 118 Mobile Apps Which are Prejudicial to Sovereignty and Integrity of India, Defence of India, Security of State and Public Order’, available at: https://pib.gov.in/PressReleasePage.aspx?PRID=1650669, last accessed on October 23, 2020
[iii] ‘NCW asks Tik Tok India to take down video showing violence against women’, available at: https://economictimes.indiatimes.com/tech/internet/ncw-asks-tik-tok-india-to-take-down-video-showing-violence-against-women/articleshow/75802690.cms?from=mdr, last accessed on October 23, 2020.
[iv] S Muthukumar v. Telecom Regulatory Authority of India and Ors., W.P.(MD) No.7855 of 2019.
[v] ‘How does a Section 69A blocking order come into existence’, available at: https://www.medianama.com/2020/06/223-section-69a-blocking-order-chinese-apps-ban/, last accessed on October 23, 2020.
[vi] ‘Examining the Legal and Policy Process Behind India's Ban on Chinese Apps’, available at: https://thewire.in/tech/india-ban-chinese-apps-tiktok-legal, last accessed on October 23, 2020.
[vii] Shreya Singhal v. Union of India, AIR 2015 SC 1523.
[viii] Article 19, Constitution of India, 1950.
[ix] Ibid at Article 21.
[x] Justice K.S Puttaswamy v. Union of India, (2017) 10 SCC 1.
[xi] 'Review of Foreign Direct Investment (FDI) policy for curbing opportunistic takeovers/acquisitions of Indian companies due to the current COVID-19 pandemic', available at: https://dipp.gov.in/sites/default/files/pn3_2020.pdf, last accessed on October 23, 2020.
[xii] ‘Digital India Aatma nirbhar Bharat Innovate Challenge’, available at: https://innovate.mygov.in/app-challenge/, last accessed on October 23, 2020.
[xiii] Digital India Aatma Nirbhar Bharat App Innovation Challenge receives 6490 entries’, available at: https://tech.hindustantimes.com/tech/news/digital-india-aatmanirbhar-bharat-app-innovation-challenge-receives-6490-entries-71595863257976.html#:~:text=Prime%20Minister%20Narendra%20Modi%20announced,Innovation%20Mission%20and%20Niti%20Aayog, last accessed on October 23, 2020.