LEGAL ASPECTS OF BAN ON 106 CHINESE APPS

In the Month of June and July, 2020 the Indian government banned 106 Chinese apps like Tiktok, Club Factory, Shein, CamScanner etc. stating them to be prejudicial to sovereignty and integrity of India, defence of India, security of state and public order. Citing “many complaints” and “various sources including several reports” and recommendation of The Indian Cyber Crime Coordination Centre, Ministry of Home Affairs the government expressed its concerns over security of data and risk to privacy due to the said apps.

The said ban was imposed under section 69A of the Information Technology Act read with the relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009.

Section 69A of the Information Technology Act empowers the government to issue directions for blocking for public access of any information through any computer resource reproduced as under:

“69A. Power to issue directions for blocking for public access of any information through any computer resource.–(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource. (2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed. (3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.”

 (Emphasis supplied)

After the above ban, the entire debate is revolving around why these apps were not given a notice before banning. The aspect of serving a notice is clarified by Rule 9 (2) of the said Rules, 2009 which supplements section 69A stated as under:

 “(2) In a case of emergency nature, the Secretary, Department of information Technology may. if he is satisfied that it is necessary or expedient and justifiable for blocking to' public access of any Information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.”

(emphasis supplied)

 In a recent Supreme Court judgment titled as Anuradha Bhasin v. Union of India & Ors. (2020) 3 SCC 637, the apex Court observed as under:

"Section 69A of the Information Technology Act, 2000 read with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 allows blocking of access to information. This Court, in the Shreya Singhal case (supra), upheld the constitutional validity of this Section and the Rules made thereunder. It is to be noted however, that the field of operation of this section is limited in scope. The aim of the section is not to restrict/block the internet as a whole, but only to block access to particular websites on the internet. Recourse cannot, therefore, be made by the Government to restrict the internet generally under this section.”

From a statement of TikTok it appears that the press releases are in a nature of “interim order” and any legal order is yet to be made public. Regarding publicity of such an order Rule 16 of the aforesaid Rules, 2009 stipulates that strict confidentiality shall be maintained regarding all complaints received and action taken thereof. However, the government must disclose/publish a legal order with necessary redactions for transparency and also in view of the Shreya Singhal Vs. Union of India 2015 (4) SCJ 283 judgment reproduced below:

“109. It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition Under Article 226 of the Constitution.”

The question now is what the way forward for these 106 apps. As of now, taking into consideration the geo-political tensions it seems unlikely that these apps are going to challenge the ban, however, reportedly, the Centre had sought details about these companies' data management practices, security features, and their data collection and processing policy and TikTok, one of the banned apps has already submitted response to almost a 70 question questionnaire by the government and has said that it is committed to comply with local data laws and privacy requirements.