India’s Digital Strike on China: Legal Implications
Written by Gracy Bindra
Co-Founder and Editor-in-Chief, Law & Order
Fifth Year, BA. LLB. Symbiosis Law School, Pune
Source: The Wall Street Journal
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
On 29 June 2020, the Ministry of Electronics and Information Technology upon the recommendation of the Ministry of Home Affairsbanned 59 Chinese applications including Tik Tok, Shein, UC Browser etc. citing reasons related to national security threats caused by the violation of privacy and mishandling of the personal data of Indian citizens. This move was termed as a “digital strike” by the Union Minister, Information Technology and Communications Minister, Ravi Shankar Prasad following the decision of the Government of India to invoke their power under Section 69 A of IT Act, 2000.
The Ministry stated in the press release that these apps are “prejudicial to the sovereignty and integrity of India, defence of India, security of state and public order”.
It was further added that, “At the same time, there have been raging concerns on aspects relating to data security and safeguarding the privacy of 130 crore Indians” And that the concerned authorities have received many complaints about some mobile apps “stealing and surreptitiously transmitting users’ data in an unauthorised manner to servers which have locations outside India”.
Given a series of events, starting from the continuous Sino-India border tensions and the Galwan Valley clash, escalated the rivalry to a ban being imposed by the Delhi Hotel and Bar Association on Chinese nationals from availing accommodation. Later, on 25 June 2020, the Confederation of All Indian Traders (CAIT) boycotted over 3,000 Chinese products, this decision by the Indian government to ban Chinese apps did not come as a surprise.
The Ministry invoked Section 69 A of IT Act, 2000 to pass an interim measure in the form of a press release to protect the sovereignty of the nation in response to receiving many blocking requests. The procedural formalities for exercising this blocking power are prescribed in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
Rule 5 states that the power to block public access to online information is accorded to a Designated Officer and can be exercised only upon a request from either a “Nodal Officer” or a competent court. The particular case does not arise from a direction by the court, but from the “blocking requests”, which are however not proven to be true. Rule 7 requires a committee to examine the blocking request from the Nodal Officer. Rule 8 requires the Designated Officer to serve a notice addressing the intermediary against whom the request has been made to file a reply or any clarifications.
Subsequently, the Committee is required to examine the request vis-a-vis Section 69A of the IT Act, 2000. In case the Committee finds any merit in the request, it seeks approval from the Secretary, Department of Information Technology upon such recommendation, and directs the intermediary to block the required information.
While the press release does not explicitly mention the rule under which the government has taken this action , it would be correct to presume that the government has relied upon Rule 9 that provides for blocking in emergency cases without any delay. This seems evident from statements in the press-release such as “emergent nature of threats” and “a matter of very deep and immediate concern which requires emergency measures”. Under the said Rule, the Designated Officer may directly refer the request to the Secretary of the Department of Information Technology who, upon their satisfaction of the justifiability of the request, may issue interim directions to block access without providing a hearing. Within 48 hours of such a direction, the request has to be placed before the Committee for its deliberation and decision.
Implications of the Decision
The interim nature of the measure taken by the Ministry has been responded to by Tik Tok India in its recent tweet mentioning that the company had “been invited to meet with concerned government stakeholders for an opportunity to respond and submit clarifications”.
It is also pertinent to note that Section 69 A of IT Act requires the blocking of access to online content by way of an order substantiated with written reasons. Although, in the present case, a sole communication to the public was made by way of a press release, and therefore, does not satisfy the requirement of a “government order.”
The vaguely worded press release has been used to justify the decision of the government to have a free hand in arbitrarily taking down online content, and sets an unclear and possibly dangerous precedent.
The intention behind the press release to guard the privacy of personal data is, however, bona fide and benevolent on the part of the government. The importance of the notion that the state and corporations should have primary rights over citizens’ data is evident in the Draft e-Commerce Policy 2019, which characterises data as a “national asset” and “societal commons.” It is relevant to note that, the Indian Economic Survey 2018-19 states that “care must also be taken to not impose the elite’s preference of privacy on the poor, who care for a better quality of living the most”.
The government has showcased itself to be concerned with guarding its citizen’s data. This is however, contradictory to its own privacy violation app- Aarogya Setu for tracing COVID-19 patients. The particular app involves excessive collection, processing and storage of Personal Data which never leaves the cyber space and is in clear violation of fundamental right to Right to Privacy guaranteed under Article 21 of the Indian Constitution. The government has not even implemented the Personal Data Protection Bill that aims to prioritize the protection of the personal data of its citizens. In fact, according to a Dow Jones report, ByteDance Ltd.’s viral short-video service TikTok, which was banned by India along with 58 other Chinese apps, said that Indian users’ data is located in servers in Singapore. . The company plans to build a data center in India as well, Chief Executive Kevin Mayer said in a letter sent to Indian officials, according to the report.
Appendix of the press release lists down 59 Chinese apps to be banned and TikTok tops the list which was one of the highest grossing startups of this decade. Estimates by Sensor Tower show that the video-sharing social networking app, TikTok, for instance, has seen about 611 million downloads in India over the app’s lifetime, while estimates of active users vary with the highest pegged at 200 million. According to media reports, Chinese file-sharing tool SHAREIt has about 400 million users. Statcounter places the Alibaba-owned UC Browser second in India market share at 10.19%, after Google Chrome (78.2%). Other reports estimate its user base at 130 million. Various media reports also confirm the ban of Chinese app Club Factory which claimed to be the third-largest e-commerce platform in India. The other banned platforms include ‘Mi Video Call and Mi Community’ of Xiaomi, which is the top smartphone vendor in the country.
Applications like TikTok have given rise to new talent and provided a voice to marginalised communities by providing an easily accessible platform. The ban has not only affected the Chinese providers but also marketplace of ideas in India and in a way curbed the freedom of speech and expression guaranteed to every Indian citizen under Article 19(1)(a) of the Constitution.
In the landmark case of Anuradha Bhasin vs Union of India, the Apex Court upheld the need for proportional restrictive measures. This means that the imposition of any restriction on fundamental rights of individuals should be necessary only when the government seeks to achieve a legitimate aim. In the absence of any other alternatives to achieve that aim, the imposition enacted must be least restrictive in nature. Justice DY Chandrachud’s opinion, co-signed by Chief Justice of India JS Khehar, Justice RK Agrawal and Justice S Abdul Nazeer, reminded us of the test used for all restrictions on Article 21, under which right to privacy has been guaranteed to every individual. It was stated that “the pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness.” The judgement also laid down a requirement to ensure that “the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law”. “Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.”
Indeed, these Chinese apps pose a valid concern to the personal data of the citizens. Articles 7 and 14 of China’s 2017 National Intelligence Law states that all citizens and corporations are required to cooperate with Chinese national intelligence-gathering efforts and maintain secrecy about them. Following this even the US administration has discouraged and banned the use of the Chinese apps by the government employee or officer. However, the press release remains vague and without procedural formalities being followed.
Also it has been observed that the Government of India chose 59 apps instead of a blanket ban, leaving out many other apps such as PUBG, LiveMe to continue.
The Response According to a recent Reuter’s report, the Indian government has petitioned the Rajasthan High Court to stop all of the Chinese companies whose 59 apps it recently banned from obtaining an injunction to block the order, according to two sources and the legal filing.
Recently, a Chinese embassy spokesperson said that India’s ban “selectively and discriminatorily aims at certain Chinese apps on ambiguous and far-fetched grounds, runs against fair and transparent procedure requirements” and likely violates a few World Trade Organisation rules.
The spokesperson also claimed that the action “goes against the general trend of international trade and E-commerce, and is not conducive to consumer interests and the market competition in India”.
However, it is unlikely for China to succeed in their claim at WTO of India’s discriminatory practices. This is because under Article I, GATT provides for Most Favoured Nation (MFN), and Article III provides for National Treatment (NT) which are general principles of trade and applicable to all the member countries, however both are subject to certain exceptions. One such exception is Article XXI of GATT, which provides for Security Exception. Under Article XXI, a state can do the following things if ‘they consider it necessary for the protection of its essential security interest’. This legal provision allows the State to withhold any information which is required to furnish under the GATT obligation.
Article XXI has characterised as a self-judging principle because of the Chapeau of Article XXI. It states that, inter alia, “Nothing in this agreement (GATT Agreement) shall be construed,” that means no limitation has been put forward by the GATT drafters. This ultimately allows India to unilaterally adopt protectionist trade policy.
Article XXI (b) (iii) provides that, inter alia, "any action taken in time of war or other emergency in international relations".
In the present situation, there is no formal declaration of war from either side. Nevertheless, the current border situation with China would definitely fall under “other emergency in international relations,”, therefore allowing India to take as many restrictive decisions as necessary to protect its essential security interest. In fact, various public sector undertakings have already started to make such decisions, as seen in the cancellation of contracts given to Chinese firms by BSNL and the Railways.
In conclusion, the Indian government has arbitrarily banned the Chinese applications creating a state of chaos and non- cooperation. However, considering the increasing user base of these apps and
the severe manhandling of sensitive information and the personal data of Indian citizens on the part of these Chinese corporations– this step became the need of the hour. As far as the complete boycott and ban of Chinese apps is concerned, that is still a distant possibility, as China has a big market for its products and services in India and is one of the biggest investors in Indian infrastructure and industry. The threat by the Chinese government to take the case to WTO on the basis of selective and discriminatory practice is unsubstantiated. The claims made are rather weak as India’s actions qualify the objective test laid under Article XXI of GATT. Therefore, India cannot be held liable for derogation from non -discrimination principles. Although “emergency situation” remains subjective and open to interpretation until the Government of India releases an official notification with the required evidence of the blocking requests and provides clear reasons for the ban.
 THE ECONOMIC TIMES, 18 Jul 2020; https://economictimes.indiatimes.com/topic/the-Ministry-of-Home-Affairs  PRESS RELEASE: Ministry of Electronics and IT; https://pib.gov.in/PressReleasePage.aspx?PRID=1635206  FIRST POST, “India ban on Chinese apps a digital strike”; 02 Jul 2020; https://www.firstpost.com/india/india-ban-on-chinese-apps-a-digital-strike-will-give-befitting-reply-if-anyone-casts-evil-eye-says-ravi-shankar-prasad-8550411.html  HINDUSTAN TIMES, “No accommodation for Chinese nationals says Delhi Hotel state body”, 25 Jun 2020; https://www.hindustantimes.com/india-news/chinese-nationals-won-t-be-provided-accommodation-in-hotels-and-guest-houses-delhi-hotel-association/story-iz3NRdWiUMhBvP90RVDGzI.html#:~:text=The%20Delhi%20Hotel%20and%20Restaurants,members%20in%20the%20national%20capital.  INDIAN EXPRESS; https://indianexpress.com/article/cities/chandigarh/boycott-china-products-chinese-india-6453692/  https://www.indiacode.nic.in/bitstream/123456789/1999/3/A2000-21.pdf  Supra no. 2  Notification: Information technology, Procedure and safeguards for blocking for access of information by public Rules, 27 Oct, 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  Supra no. 7 Supra no. 7  Ibid  THE INFORMATION TECHNOLOGY ACT, 2000; https://www.indiacode.nic.in/bitstream/123456789/1999/3/A2000-21.pdf  Supra no. 10  Supra no. 2  https://twitter.com/TikTok_IN/status/1277811841364668416  DRAFT NATIONAL E-COMMERCE POLICY, 23 Feb 2019; https://dipp.gov.in/sites/default/files/DraftNational_e-commerce_Policy_23February2019.pdf  ECONOMIC SURVEY 2019-20; https://www.indiabudget.gov.in/economicsurvey/doc/echapter.pdf  https://internetfreedom.in/we-studied-the-protocol-and-no-this-doesnt-sufficiently-protect-your-privacy/  BLOOMBERG QUINT, “TikTok says Indian users’data located in Singapore”; https://www.bloombergquint.com/business/tiktok-says-indian-users-data-located-in-singapore-servers dj#:~:text=TikTok%20Says%20Indian%20Users'%20Data%20Located%20in%20Singapore%20Servers%3A%20DJ,-Nour%20Al%20Ali&text=(Bloomberg)%20%2D%2D%20ByteDance%20Ltd.,in%20Singapore%2C%20Dow%20Jones%20reported.  Ibid  SENSOR TOWER BLOG,29 Apr 20; https://sensortower.com/blog/tiktok-downloads-2-billion  https://technuter.com/interview/there-are-over-400million-india-users-on-shareit-by-shareit-ceo-mr-karam-malhotra.html  THE ECONOMIC TIMES; https://economictimes.indiatimes.com/tech/internet/uc-browser-becomes-worlds-2nd-most-popular-mobile-browser-study/articleshow/49923053.cms  BUSINESS STANDARD, “Chinese app ban create funding hurdle for Indian unicorns and soonicorns”; https://www.business-standard.com/article/companies/chinese-app-ban-to-create-funding-hurdle-for-indian-unicorns-and-soonicorns-120070101740_1.html  Ibid  Write Petition no. 1031 of 2019; https://indiankanoon.org/doc/82461587/  Ibid  Justice K.S.Puttaswamy(Retd) v. Union Of India And Ors., Writ Petition (CIVIL) NO 494 OF 2012; https://indiankanoon.org/doc/91938676/  Ibid  NATIONAL INTELLIGENCE LAW OF THE PEOPLES’ REPUBLIC, 27 June 17; https://cs.brown.edu/courses/csci1800/sources/2017_PRC_NationalIntelligenceLaw.pdf  LAWFARE, “Unpacking TikTok, mobile apps and national Security Risks”; https://www.lawfareblog.com/unpacking-tiktok-mobile-apps-and-national-security-risks  THE WIRE; https://thewire.in/law/chinese-app-ban-rajasthan-hc  THE PRINT, 30 Jun 20; https://theprint.in/diplomacy/banning-apps-violates-wto-rules-will-affect-employment-of-indians-chinese-embassy/451938/  THE WIRE, 1 July 20; https://thewire.in/tech/chinese-app-ban-data-sharing-practices  https://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm#articleI  https://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm#articleIII  https://www.wto.org/english/docs_e/legal_e/gatt47_02_e.htm#articleXXI  https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art21_jur.pdf  Ibid  https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art21_jur.pdf  THE INDIAN EXPRESS, 18 Jun 20; https://indianexpress.com/article/business/economy/border-dispute-chinese-firms-india-business-railways-telecom-6464148/ Bibliography Articles/Websites:
THE ECONOMIC TIMES, 18 Jul 2020; https://economictimes.indiatimes.com/topic/the-Ministry-of-Home-Affairs
FIRST POST, “India ban on Chinese apps a digital strike”; 02 Jul 2020; https://www.firstpost.com/india/india-ban-on-chinese-apps-a-digital-strike-will-give-befitting-reply-if-anyone-casts-evil-eye-says-ravi-shankar-prasad-8550411.html
HINDUSTAN TIMES, “No accommodation for Chinese nationals says Delhi Hotel state body”, 25 Jun 2020; https://www.hindustantimes.com/india-news/chinese-nationals-won-t-be-provided-accommodation-in-hotels-and-guest-houses-delhi-hotel-association/story-iz3NRdWiUMhBvP90RVDGzI.html#:~:text=The%20Delhi%20Hotel%20and%20Restaurants,members%20in%20the%20national%20capital.
BLOOMBERG QUINT, “TikTok says Indian users’data located in Singapore”; https://www.bloombergquint.com/business/tiktok-says-indian-users-data-located-in-singapore-servers-dj#:~:text=TikTok%20Says%20Indian%20Users'%20Data%20Located%20in%20Singapore%20Servers%3A%20DJ,-Nour%20Al%20Ali&text=(Bloomberg)%20%2D%2D%20ByteDance%20Ltd.,in%20Singapore%2C%20Dow%20Jones%20reported.
THE INDIAN EXPRESS, 18 Jun 20; https://indianexpress.com/article/business/economy/border-dispute-chinese-firms-india-business-railways-telecom-6464148/
THE WIRE, 1 July 20; https://thewire.in/tech/chinese-app-ban-data-sharing-practices
BUSINESS STANDARD, “Chinese app ban create funding hurdle for Indian unicorns and soonicorns”; https://www.business-standard.com/article/companies/chinese-app-ban-to-create-funding-hurdle-for-indian-unicorns-and-soonicorns-120070101740_1.html
LAWFARE, “Unpacking TikTok, mobile apps and national Security Risks”; https://www.lawfareblog.com/unpacking-tiktok-mobile-apps-and-national-security-risks
PRESS RELEASE: Ministry of Electronics and IT; https://pib.gov.in/PressReleasePage.aspx?PRID=1635206
THE INFORMATION TECHNOLOGY ACT, 2000; https://www.indiacode.nic.in/bitstream/123456789/1999/3/A2000-21.pdf
Notification: Information technology, Procedure and safeguards for blocking for access of information by public Rules, 27 Oct, 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
ECONOMIC SURVEY 2019-20; https://www.indiabudget.gov.in/economicsurvey/doc/echapter.pdf
DRAFT NATIONAL E-COMMERCE POLICY, 23 Feb 2019; https://dipp.gov.in/sites/default/files/DraftNational_e-commerce_Policy_23February2019.pdf