The Story ‘Ban on 59 Apps’ is not over

On 29th June 2020, Ministry of electronics and information technology issued a press release which essentially blocked public access to a list of 59 apps. This was done as per Section 69A of the Information Technology Act, 2000  read with the relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009. Most of the applications banned in the order were fairly popular in India, ‘Tiktok’ was the most popular one. It has been in conflict with the law in the past in India[ for potentially violating rights of young kids and hence facing an interim ban by the madras high court, which was later lifted], and in other countries as well.

The order stated that the reason for such action was a potential threat to security and sovereignty of the country. It was highlighted that certain apps were “stealing” and “surreptitiously transmitting” user data, to servers which were located outside the border the nation. ‘Breach of privacy’ and ‘security concerns’ were the fundamental concerns raised in the order as these issues could lead to ‘profiling’ of certain elements which could affect the national security and disrupt the public order. It is interesting to note that the term “privacy of citizens” was highlighted throughout the order passed by the MEITY.

Concern By China

While The order didn’t specifically mention that order was against Chinese apps, specifically, most of the apps which were banned had a Chinese parent company. After this step, the Chinese Foreign Ministry spokesperson Zhao Lijian expressed “strong concern” on the matter and described this move as a deliberate interference in practical cooperation” between the two countries. “The Indian government has the responsibility to protect the legitimate rights and interests of international investors in India, including Chinese businesses, in accordance with market principles,” Mr Zhao said. “Practical cooperation between China and India is mutually beneficial. Deliberate interference in such cooperation will not serve the interests of the Indian side.”

The sheer suddenness of the move raises a lot of questions

One can’t stop from wondering the urgency and suddenness of this order, as in March the same thing was asked about in the parliament and no concerns were raised by any stakeholder. Dr Subhash Sarkar, who is a BJP MP, asked the Minister of State of Ministry of Home Affairs, that if ‘Tiktok’ poses any counterintelligence threat to the country and is the government planning the ban on the app? To this, the Hon’ble Minister of Home Affairs had replied in a ‘negative’ to all the aspects.

However, in the present order, Indian Cyber Crime Coordination Centre which is a department of the Ministry of Home Affairs has sent an exhaustive recommendation for blocking these malicious apps.

What is 69A, IT act, 2000 and why is it applied here? 

Section 69A (1) of IT Act, is the law that allows the government to direct any agency of the Government or an intermediary to block the access or cause the block of access by the public of any information generated, transmitted, received, stored or hosted in any computer resource.

It means that the government can order any company or organisation, which provides access to a website or assists in providing one the access to a website, to just stop doing it.

Subsection 2, further reinforces this premise as it talks about how intermediaries will criminally be prosecuted if they don’t comply with the order of section 1. [intermediaries are individuals or organisation who on the behalf of other person or organisation receives, stores or transmits that record or provides any service]

We can understand this with an example: Imagine a Website that hosts content that is inflammatory, and inciting in nature that can cause Disruption to public order. This website also has an app version which can be downloaded from the play store. In this scenario, the government can issue an order against the individual or the organisation who is behind working of the website as well as the network service providers, web hosting service, search engines and google play store market to stop the access the said computer resource or the website.

The aforesaid statement becomes important to understand the context when going through the press release of 29th June. Specifically, the line which states “the Government of India has decided to disallow the usage of certain Apps,”

An analysis of the Blockade

It was on top of the charts at the both Google play store and Apple App Store. The Video sharing app was also very popular amongst the advertisers and movie producers. TikTok did earn a lot of ad revenue from a lot of companies by running their hashtags and sponsored ads campaigns, on the platform. While there is nothing wrong with it as it is a common business model amongst other social media apps as well, it will be interesting to see how the interests of these organisations will pan out as they had a lot of money invested on the platform.

Another thing peculiar about the blockade is the statement released by Tiktok, which described it as an interim order. , which means that this blockade on the access of these 59 apps is not final. It could also mean that that the present order has been passed by the virtue of ‘Emergency Provisions’  as stated in section 9 of  Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009.

The said section states that an order of blocking access for the reasons stated in subsection 1 of section 69A can be passed if no delay for such order is permissible. The said order will have to go through the scrutiny of the committee with the designated officer, representatives not below the rank of joint secretary from the department of law and justice, home affairs,  Information and Broadcasting and the CERT-IN. The said committee can either give it the finality or it can overturn it as well.

The actuality of the above scenario gets warranted by the fact that TikTok was invited by the concerned government stakeholder to give clarifications, which is a part of the general procedure of working of the committee as stated in the IT Rules, 2009. However, the press release by both MEITY and TikTok is only secondary resources to collect information, one can only speculate about the applied statutory provisions.

The pen has not been put down yet 

It will be interesting to see how this interim ban will pan out for all the apps stated in the order. However, until the committee passes any final order one can only speculate to the future of these apps and the validity of the ‘privacy concerns’ stated in the order when a data protection and data privacy law is virtually non-existent in India.