• Lex Specialis

The Legality of Tik Tok ban in India

- Utkarshini Rai


The Ministry of Electronics and Information Technology on 29th June 2020 through a press release invoked its powers under Section 69A of the Information Technology Act, 2000 read with the provisions of Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009 decided to block 59 apps citing their role in activities prejudicial to the integrity and sovereignty of India and in view of defence in public order. It stated that the Ministry has received complaints regarding the misuse of certain apps available on various platforms. This was in relation to claims of the apps “stealing and surreptitiously transmitting users’ data in an unauthorized manner to servers which have locations outside India”. It claimed that such data mining is done by elements which are hostile to the nation’s security of India. It also cited recommendations by the Indian Cyber Crime Coordination Centre, Ministry of Home Affairs which was in favour of blocking these apps. It further said that the Computer Emergency Response Team had also received representations from common people regarding the same. Consequently, the Government of India (“GoI”) has decided to disallow the usage of those apps in mobile and non-mobile internet-enabled devices.

Questions Raised


The first issue that comes into the picture is the lack of any formal order from the ministry. The ban has been instituted through a simple press release on the Ministry’s website. While it may constitute an interim order, it creates a question of the extent of its legal validity. For example, the Ministry of Finance had issued a duly signed office memorandum declaring the coronavirus outbreak as a Force Majeure clause action. The order also does not cite any complaints or their sources in the press release either. Apple did discover via the release of its operating system update iOS 14 that TikTok was snooping on users’ clipboard data. In February, an Android app called 'Suedo' had claimed that TikTok was deciphering information from the device which might ascertain its location. But the US Government was reported to start investigating the app about the same concerns in November 2019 itself. So, objections have been raised regarding the timing of the ban as being politically profitable instead of safeguarding national interests. Furthermore, the app claimed on the very next day of the press release that it had been invited to meet the government for an opportunity to “respond and submit clarifications''. While the ban may be said to have been instituted bona fide, the lack of any verifiable sources or statements and the ambivalent approach of the government make it look more like a political gimmick without any real repercussions whatsoever.


Technical loopholes also plague the implementation of this ban. People who already have some of these apps installed have not been affected. The author has verified the same with their own device A message box might appear to restrict the accessibility of these apps but a workaround to that is the installation of proxy servers. This has also previously been done to access apps not available in the country. Lastly, it is not certain how the ban would be implemented on apps which do not require an active internet connection.


Arbitrary Curbing of Information


The Hon’ble Apex Court had read in certain procedural safeguards in Shreya Singhal v. Union of India. According to the judgement, the 2009 Rules has provided for a Committee that would hear the issue and look into the details of blocking information. Any blocking order was to be made based on the findings of the same Committee. Rule 8 states that the originator of the information has been identified, he is also to be heard before the order is passed. In Facebook Inc. v. State of West Bengal, Rules 7 and 8(4) had been cited to raise the alternative of a certified copy of a court order to pass the blocking order. The safeguards have been blatantly disregarded by the GoI and although the press release mentions the 2009 Rules, they have been seemingly selectively applied. There has been a steady rise in this trend of arbitrarily blocking of information without following the safeguards and this instance is just another brick in the wall. It is pertinent to say that this action definitely holds much more significance as moral and nationalist arguments have clouded a rational approach towards its analysis and its far-reaching consequences. A ban like this without credible sources sets the precedent for similar executive actions in the future, under a similar guise of national interests.


The seemingly indefinite ban on internet services in Jammu & Kashmir has been continued under the same pretext. Although the Apex Court, in Anuradha Bhasin v. Union of India had stated that such disruption is impermissible under Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017, it had failed to define what constituted as “indefinite” and consequently, internet services still have not been restored entirely in the region. Only a myopic view of these actions would consider their significance in terms of national security, despite lack of any credible claims or reports. Statements in the press release mentioning “credible inputs” and “strong chorus in public space” seem vague and intentional in order to stoke patriotism.


Takeaway


Although the current precedents may declare this ban order illegal at first glance, it must be taken into consideration that judicial review is not a usual avenue when national security policy matters are considered. TikTok has even stated that it does not plan to pursue legal action against GoI. Taking into account the fact that the app is already in talks with the stakeholders, it might be allowed back in after changing user data policies. It would be remiss to not mention that certain apps on the list, like Shein, had already been under regulatory radar and ordered to modify their operational structure in order to comply with Indian foreign trade policy. Last of all, the data privacy concerns regarding these apps have been valid across the globe. It is simply the credibility of the order which is murky. But one can hope for more clarity and legal compliance while waiting for further orders.


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