by Atmaja Tripathy[1]

In an era where expression via the internet is recognised as a quintessential part of freedom of speech and expression[2], sovereigns are increasingly seeking to regulate content on the internet as a measure to tackle threats posed by malicious web-based applications. Intermediary liability and content takedown regimes adopted by jurisdictions across the globe have long been matters of controversy. Now, in an unprecedented move, the Indian Government has adopted a new tool via a Press Release imposing a singular ban on 59 web-based applications. The ban, which has further exacerbated the challenge posed to free speech on the web, comes with serious legal and trade ramifications, triggering a wave of concern among legal scholars, internet protectionists and citizens at large.

What is the Ban All About?

 On June 29, the Ministry of Electronics and Information Technology (the nodal ministry of Government of India regulating this space) (Government) issued a Press Release[3] banning 59 mobile applications (Press Release). By invoking powers under Section 69 A[4] of the Indian Information Technology Act 2000 (IT Act) read with the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009[5] (Blocking Rules), the Government has imposed a ban on apps engaged in activities which are ‘prejudicial to the sovereignty and integrity of India, the defence of India, the security of the state and public order.’ In addition the government’s action has been triggered over concern for data security and the protection of privacy of Indian citizens.

While the Government has not issued a detailed order, explaining  the background and rationale behind the ban, a perusal of the Press Release reveals that the Government’s dramatic step is prompted by multiple complaints received from various sources including several reports which record misuse of user data by certain mobile apps available on Android and iOS platforms. The complaints even relate to the surreptitious transmission of user data, in an unauthorised manner, to servers located outside India. Data mining and profiling of data by entities ‘posing a threat to national security and the defence of India seems to be a pivotal point leading to the ban.’

Government’s Power to Invoke the Ban

The ban imposed on the 59 web-based applications of Chinese origin seems to be a geo-political strategy in view of the ongoing border skirmishes between Indian and China which escalated in June 2020.[6] In any event, the action of the Government must necessarily comply with the law of the land, which means we must scrutinise the legal basis on which the Government invoked its powers to impose the ban.

Section 69-A of the IT Act empowers the Government of India to issue directions for blocking from user, content/ information through any computer resource. The grounds for issuing such a blocking order are synonymous with the restrictions on  freedom of speech and expression provided under Article 19(2) of the Constitution of India, 1950[7]. These include the  sovereignty and integrity of India, the defence of India, the security of the state, friendly relations with foreign states, public order or for preventing incitement to the commission of any offence. Further, the blocking order issued by the Government must comply with the Blocking Rules issued pursuant to Section 69-A read with Section 87[8] of the IT Act.

Interestingly, the Blocking Rules provide for a detailed procedure from receipt of a complaint  in writing, to setting up a committee for the examination of the request, the issuance of a show cause notice to the content creator and/ or intermediary until the final stage of issuing an order directing the blocking of the offending information.  The only exception to the adherence of this detailed procedure is in cases of emergency where a blocking order can be imposed expeditiously on the receipt of a complaint. However, in all such instances of emergency, blocking requests must be brought before the committee[9] for consideration not later than 48 hours of issuance of the blocking order. The committee recommends whether the blocking order can be sustained or set aside.

The aforesaid detailed procedure under the Blocking Rules when juxtaposed with the present ban, unfolds a rather fascinating view of the events. Firstly, the actions undertaken pursuant to the Blocking Rules, must be based on complaints received in writing. Secondly, the complaints received by the Department of Information Technology of the Government must be resolved expeditiously with the exterior limit of seven days.[10] While the first limb of receiving complaints from users is clarified in the Press Release, it fails to answer the other pertinent question with respect to compliance with the Blocking Rules. Whether the detailed procedure in terms of rendering expeditious decisions on each of the complaints within the timeline of 7 days as per the Blocking Rules has been adhered to, is quite unclear. Further, the Blocking Rules mandate for a case to case basis analysis of the complaints received, which clearly is absent in the present case as a singular ban attempts to target 59 apps together. Lastly, it is also unclear if the banned apps have ever been given a detailed order or in the least a show cause notice to explain their position vis-à-vis the alleged violations. It seems that the ban which has been imposed in exercise of emergency powers, was ratified by the Committee on July 01, 2020, within 48 hours of the Press Release.[11]

Will the Ban Pass Muster with Judicial Scrutiny?

The Press Release fails to answer compelling questions of law. It is not long before the issue of legality and constitutional validity of the ban will reach Indian courts. The most pertinent issue which will baffle the court is with respect to balancing the fundamental rights of individuals with state security, sovereignty and public order. A challenge to the ban will create an inevitable tussle between constitutional rights such as freedom of speech and expression[12], and freedom of trade or business[13] on one hand and the right to privacy[14], state security and sovereignty on the other.

The act of the Government in imposing a singular ban on 59 apps raises questions with respect to legitimacy, proportionality and reasonableness of the act. Internationally, restrictions on free speech can only be imposed in exceptional and limited circumstances, subject to satisfaction of three essential conditions: was the restriction prescribed by law: was the aim of the restriction legitimate: and was the restriction necessary to achieve the aim..^[15] Indian courts have followed a similar approach and have held that restrictions on fundamental rights ought to be weighed against the three tests  of proportionality[16], reasonableness[17] and necessity.[18] If the banned apps pose a threat to security and the sovereignty of the country, the government will have to prove how a complete ban, unilaterally imposed on 59 apps, without an opportunity for hearing, is the most reasonable approach, as opposed, say,  to a partial ban in select territories or restricting use of the app by a certain category of individuals, illustratively, by the armed forces or at the most restricting individuals working with the government, so as to protect the data and ensure safety, security and sovereignty of the country.

The ban not only infringes the freedom of speech and expression of individuals who use the app, but also adversely impacts on the livelihood and occupation of individuals associated with these apps. Illustratively, Tiktok which is one of the banned apps, is used by social media influencers as well as content creators who earn livelihoods by using the app. As of 2019, India was the lead market for Tiktok app with 120 million users.[19] The sudden ban imposed on the app, infringes the freedom of speech and expression of millions. Naturally, when the act of government affects the lives and livelihood of individuals and the cherished right of free speech, it is imperative for a detailed disclosure of the facts, complaints and reasons leading to the ban. The present ban creates a disturbing precedent as freedom of speech and the digital rights of users can be undermined even into the future, without  the opportunity of a hearing. Further, the ban also gives the government uninhibited powers  to impinge on freedom of speech by blocking web-based services in India.

In 2015, the Supreme Court of India, upheld the constitutional validity of Section 69 A of IT Act and the Blocking Rules[20], solely based on the detailed procedure and safeguards entailed therein. In the presence of such a detailed procedural mechanism which was to be followed before issuing a blocking order, the Court held that the said provisions could not be held to be violative of freedom of speech. It is ironic how today, the government has circumvented this and issued the Press Release without any hearing, deliberation or discussion with the concerned entities.

Another interesting aspect of the ban is the invocation of powers of the content regulation provision under Section 69-A, to protect the data and privacy of users by imposing the ban on malicious apps which profile and mine data at the cost of security and sovereignty of India. It is noteworthy that Section 69-A read with the Blocking Rules focuses on regulating content which directly impinges upon the security and sovereignty of the country rather than the indirect protection of users or blocking content to prohibit illegal data mining. The present measure brings an important lesson for India while it seeks to protect personal data, despite still lacking a robust data protection regime.

While the proportionality and reasonableness of the actions seem questionable, more often than not, when governments defend their actions citing national security concerns, courts prefer to err on the side of caution. Threats to national security, whether real or imagined, often trump the fundamental rights of individuals including the right to free speech. Precedents of Indian courts will surely aid in a fair decision-making process. As recently as 2020, the Supreme Court of India, in the context of internet shut-downs in the Union Territory of Kashmir, has determined on issues requiring the balancing of freedom of speech and access to internet with restrictions imposed by the state in view of national security concerns.[21] Situations raising national security concerns require a delicate balancing of the fundamental rights, giving adequate consideration to the peculiar prevalent circumstances and the factors necessitating the implementation of such drastic steps. Whether the ban on the apps would pass the muster of judicial scrutiny depends on the material that the government discloses before the court, which still is unavailable for public scrutiny. The fact that the ban is a ‘digital strike’[22], imposed as a geo-political strategy in the wake of border disputes between India and China, itwill be a challenging issue to decide for Indian courts.

Conclusion

Subsequent to the Press Release, government officials have stated that the interim order banning the apps, will be followed by a detailed order, after the committee reviews the facts and the order.[23] The banned apps have already been taken down from Google as well as Apple stores, and the users who had the application can no longer use the same. Some of those in charge of the banned apps have been invited to meet government officials for an opportunity to respond and submit clarifications.[24] In the last week, the Government filed caveats before one of the Indian High Courts asking the Court to refrain from issuing any injunctive relief in favour of the banned apps by issuing a stay order on the ban.[25] In view of this caveat which has been filed in anticipation of a challenge to the ban by one of the 59 banned apps, only time will tell whether the banned applications will ever interact with Indian users in the future.

Notes

[1] Atmaja is an advocate based out of Delhi, India. She regularly appears before different courts and judicial forums in India. Her areas of interest predominantly lie in the crossroads of technology, media and telecommunication laws and constitutional laws. She can be reached at atmajatripathy@gmail.com

[2] Reno v ACLU, 521 US 844 (1997); Anuradha Bhasin v. Union of India and Ors.,Writ Petition (C) No. 1031 of 2019, Supreme Court of India; UNCHR, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression’ (2011) UN Doc A/HRC/17/27; UNHRC General comment 34, UN Doc CCPR/333C/GC/34/CRP.2 (2010) 12

[3] ‘Government Bans 59 mobile apps which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order, Press Information Bureau’, June 29, 2020  https://pib.gov.in/PressReleseDetailm.aspx?PRID=1635206 (last accessed on 06.07.2020, at 15:00 hrs)

[4] ‘Power to issue directions for blocking for public access of any information through any computer resource’, Section 69A of the Information Technology Act, 2000, https://indiankanoon.org/doc/10190353/ (last accessed on 06.07.2020, at 14:00 hrs)

[5] The Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009, https://meity.gov.in/writereaddata/files/Information%20Technology%20%28%20Procedure%20and%20safeguards%20for%20blocking%20for%20access%20of%20information%20by%20public%29%20Rules%2C%202009.pdf (last accessed on 06.07.2020, at 15:00 hrs)

[6] ‘Why are India and China Fighting?’, James Palmer and Ravi Agrawal, June 16, 2020, https://foreignpolicy.com/2020/06/16/why-are-india-china-fighting-ladakh-skirmish/ (last accessed on 06.07.2020, at 17:00 hrs) ; ‘India – China clash: 20 Indian troops killed in Ladakh fighting’, June 16, 2020, https://www.bbc.com/news/world-asia-53061476 (last accessed on 06.07.2020, at 17:30 hrs)

[7]  https://indiankanoon.org/doc/493243/ (last accessed on 06.07.2020, at 17:45 hrs)

[8] ‘Power of Central Government to Make Rules’, Section 87 of the Information Technology Act, 2000

[9] Committee consisting of members from the Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Information and Broadcasting and Indian Computer Emergency Response Team (CERT-IN)

[10] Expeditious Disposal of Request seeking blocking, Rule 11 of The Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009

[11] ‘Trigger Appy but what about data protection?’, The  Economic Times, July 02, 2020, https://economictimes.indiatimes.com/tech/internet/view-trigger-appy-but-what-about-data-protection/primeshow/76756785.cms (last accessed on 08.07.2020, at 17:00 hrs)

[12] Freedom of speech and expression is a fundamental right under Article 19(1)(a) of the Constitution of India, 1950

[13] Freedom of Trade and Commerce is fundamental right under Article 19(1)(g) of the Constitution of India, 1950

[14] The Supreme Court of India has recognised right to privacy as a fundamental right under the Indian Constitution, Justice K. S. Puttuswamy (Retd) and Anr. v. Union of India and Ors., WP (Civil) No. 494 of 2012

^[15] OHCHR, ‘Report of the Special Rapporteur to the General Assembly on the right to freedom of opinion and expression exercised through the Internet’, (2011) A/66/290,¶12

[16] Justice K. S. Puttuswamy (Retd) and Anr. v. Union of India and Ors., WP (Civil) No. 494 of 2012; Mohammed Faruk v. State of Madhya Pradesh, (1969) 1 SCC 853

[17] State of Madras v. V.G. Row, AIR 1952 SC 196, Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118

[18] Anuradha Bhasin v. Union of India and Ors., Writ Petition (C) No. 1031 of 2019

[19]‘Tiktok Revenue and Usage Statistics (2020)’, Business of Apps, June 23, 2020, https://www.businessofapps.com/data/tik-tok-statistics/#:~:text=As%20of%20June%202019%2C%20it,of%20TikTok%20numbered%20190%20million., (last accessed on 08.07.2020, at 18:00 hrs)

[20] Shreya Singhal v. Union of India, WP (Cr) No. 167 of 2012

[21] Anuradha Bhasin v. Union of India and Ors., Writ Petition (C) No. 1031 of 2019 and Foundation of Media Professionals v. Union Territory of Jamu and Kashmir & Anr, WP (C) Diary No. 10817 of 2020

[22] ‘Ban on Apps a Digital Strike: Prasad’, The Times of India, July 03, 2020, https://timesofindia.indiatimes.com/india/ban-on-apps-a-digital-strike-prasad/articleshow/76760451.cms (last accessed on 08.07.2020, at 18:00 hrs)

[23] ‘Govt to give chance to TikTok, other banned Chinese apps to explain their case’, Livemint, June 20, 2020, https://www.livemint.com/companies/news/govt-to-give-chance-to-tiktok-other-banned-chinese-apps-to-explain-their-case-11593497839432.html (last accessed on 08.07.2020, at 16:40 hrs)

[24] ‘Tiktok Offline after India app ban, says will follow directive’, Hindustan Times, July 01, 2020, https://www.hindustantimes.com/india-news/tiktok-offline-after-india-app-ban-says-will-follow-directive/story-lpi3lN59fKG3p5t6L8ZcVK.html (last accessed on 08.07.2020, at 17:00 hrs)

[25] ‘Centre Asks Rajasthan HC to Stymie Potential Challenge to Chinese App Ban: Report’, The Wire, July 11, 2020, https://thewire.in/law/chinese-app-ban-rajasthan-hc (last accessed on 11.07.2020, at 21:50 hrs)