Ban on 59 Mobile Apps: Legal Analysis
Claiming the grounds of national security, the Government of India had recently announced the ban of 59 mobile apps, which are utterly possessed by the Chinese companies. This step could be said to have been taken in the wake of the tension going on between India and China in Ladakh since early May. The Government rests its action of banning the apps on Section 69A[i] of the Information Technology Act, 2000 read with the relevant provisions of the Information technology (Procedure and Safeguard for Blocking of Access of Information by Public) Rules, 2009[ii].
Section 69A(1)[iii] of the Information Technology Act, 2000 bestows upon the Central Government the powers to restrict the access to any information generated, transmitted, received, stored or hosted in any computer resources concerning the sovereignty, integrity, and defense of India, security of the State, friendly relations with foreign states, public order and for averting instigation towards the commission of any cognizable offense. Moreover, as provided by the Information Technology Rules, 2009, the usual procedure involves the examination as well as consideration of the requests concerning blocking of a computer source by a Committee formed under Rule 7[iv] of the Information Technology Act, 2009, followed by recognition and issuance of notice to the intermediary by the Designated Officer of the committee. It is only after the consideration of all the relevant materials, ‘specific recommendation’ regarding the ban is sent to the Secretary of the Department of Information Technology for his approval. On approval, the Designated Officer proceeds towards the decision of banning the computer source. However, in case of emergency, as provided by Rule 9[v] of the Information Technology Act, 2009, ‘specific recommendation’ is sent to the Secretary for his approval without an opportunity of hearing being furnished to the Intermediary or the Originator, provided that the Designated Officer is satisfied as to the grounds of the request be it within the ambit of those mentioned in Section 69A(1)[vi].
On 29 June 2020, the Ministry of Information and Technology had passed an interim order to ban 59 mobile apps contending that it has received several complaints concerning the misuse of some mobile apps for stealing, and secretly transferring the user’s information to servers located outside India and such acts hamper the sovereignty and integrity of India making it mandatory to take emergency measures. Rule 9 of the Information Technology Rules, dealing with the Emergency Procedure was invoked to ban the apps. The escalating tensions between India and China could be blamed for emergency measures. Furthermore, the Government relied upon Article 69A of the Information technology Act, 2002 to pass the interim order.
Does the Interim order violate WTO Obligation?
Following the day of the ban, Ji Rong, the embassy of China incriminated the ban to be violative of WTO Rules. World Trade Organization is an inter-governmental organization concerning itself with the global rules of trade between nations through various agreements. Although the foundational agreements of WTO dealt with telecommunication and electronic networks, internet regulation and privacy are generally dealt with in the General Agreement on Trade in Services (GATS). It is provided by Article XIV[vii] of GATS that the member states are free to take necessary steps to protect public and public order and the Government notification reflects the concern of ‘public order.’ Substantially, clause(b)[viii] of Article XIV bis confers the right upon the member states to take necessary measures concerning security interest as well as at the time of war or emergency in international relations. And the current border tension manifests a situation of emergency between India and China. Therefore, it can be said that China’s claim of incriminating the ban to be violative of WTO Rules is irrational and fallacious.
Are the provisions of Information Technology Act, 2002 violated?
The validity of the Government’s action with regards to the Information technology Act, 2000 read with the relevant provisions of the Information Technology (Procedure and Safeguard for Blocking of Access of Information by Public) Rules, 2009 has been discussed at various platforms. The Government’s action was an emergency measure taken under Rule 9 of the Information Technology Rules, 2009 attributing to the border tension. Moreover, some hours after the ban, TikTok along with 58 others were invited by the Government stakeholders to offer clarifications. Therefore, in no sense is the Government’s action violative of the Information Technology Act, 2000.
Is the Right to speech and expression kept untouched?
The Interim order banning a plethora of apps has been severely criticized by many contending it to be violative of freedom of speech and expression, the reason being that the apps providing a platform for expressions and circulating information are protected by Article 19(1)(a)[ix] of the Indian Constitution. However, this argument seems to be immature as the individual’s right of speech and expression is not restricted by banning an app, unless and until he is devoid of the access to the internet as a whole. In the current situation, the individuals are provided with other platforms to express themselves, thus, protecting their right to speech and expression.
The flaw in the recent order
Although, the interim order banning 59 apps has been passed by the Secretary of the IT Department, yet the Government of India has not made the order available on the public domain. It is only through the press release that we got to know about this action of the Government. Non-releasing of the order has led to an unprecedented legal scenario as 59 apps with massive followers have been banned. As provided by the IT Rules, it is mandatory to issue an order concerning blocking of a computer source with detailed reasons. However, in the present case, the order is yet to be released.
Thus, it can be concluded that the interim order banning 59 mobile apps complies with all the procedure established by law. It is the concern of data misuse that has provoked the Government to block those apps invoking sovereignty, defense, and security of India. However, such actions of the Indian Government would prove detrimental to the Indian companies and individuals in the future and therefore, it would be dangerous to let these actions unabated. At present, the least that the government can do is to release the Interim Order on the public domain with the detailed reasons behind this step. Moreover, the Originators should be provided with a fair opportunity to be heard.
[i] Sec.69A, The Information Technology Act, 2000, No. 21, 2002 (India).
[ii] The Information technology (Procedure and Safeguard for Blocking of Access of Information by Public) Rules, 2009 (India).
[iii] Sec.69A cl.1, The Information Technology Act, 2000, No. 21, 2002 (India).
[iv] Rule 7, The Information technology (Procedure and Safeguard for Blocking of Access of Information by Public) Rules, 2009 (India).
[v] Rule 9, The Information technology (Procedure and Safeguard for Blocking of Access of Information by Public) Rules, 2009 (India).
[vi] Supra note (iii).
[vii] Art. XIV, The General Agreement on Trade in Services, 1995.
[viii] Art. XIV bis cl.(b), The General Agreement on Trade in Services, 1995.i] Art. XIV bis cl.(b), The General Agreement on Trade in Services, 1995.
[ix] Art.19 cl.1 sub-clause(a), Constitution of India, 1950.
The author of this post is Kshitija Yadav (a student at Faculty of Law, University of Lucknow)
The views expressed in this article belong to the author/s and do not necessarily reflect those of the JCLJ Blog. We welcome comments and contributions to this blog – please comment below.