Can TikTok & Other Chinese Apps Get Ban Overturned In Courts?

The govt’s ban on TikTok & other apps is an interim measure now. Here’s the process for finalising it – or not.

Published03 Jul 2020, 01:55 AM IST
Law
6 min read

Following the Indian government’s surprise announcement that it had blocked 59 Chinese apps in India, the most high-profile among these, TikTok, put out a statement in which they said they had been invited to meet with the government to respond and submit clarifications.

But why are TikTok and other Chinese app companies being given this opportunity? Could the ban be overturned by the government? And if not, can these 59 app companies approach Indian law courts?

Here’s how the ban has been imposed, and the process that can be followed by the app companies to challenge it.

What is the legal basis for the ban on the 59 apps? When can the government order block access to such apps?

As specified in the press release by the Ministry of Electronics and Information Technology (MeitY), the 59 apps have been banned by the ministry using its power under Section 69A of the Information Technology Act 2000.

Section 69A of the IT Act says that the central government can ensure that public access to any information (whether an app or a website) is blocked, if it is

“satisfied that this is necessary or expedient to do so in the interest of the sovereignty and integrity of India, defence of India, security of the State... or public order”.

In their press release, MeitY has expressly said that they have received many complaints about the misuse of mobile apps for “stealing and surreptitiously transmitting users’ data in an unauthorised manner to servers which have locations outside India.” As this can pose a threat to the sovereignty and integrity of India, the government decided to disallow the usage of these apps.

You can read the full press release here.

Can the government just announce a ban like this or is there some process to be followed to make it effective?

While the IT Act provides the power to impose a ban like this, the procedure for doing so is provided by the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009.

Under these rules, public access to websites, apps, etc can be blocked at the request of persons who believe the conditions under the IT Act are fulfilled, after evaluation by a designated officer of the government, and after giving relevant stakeholders a chance to respond.

The rules also allow the Secretary of the Department of Information Technology to take interim measures to block access in case of emergencies, without first giving the stakeholders a chance to respond (Rule 9).

In their press release, the government has specifically stated that the misuse of data collected by the 59 apps in question “is a matter of very deep and immediate concern which requires emergency measures.” Which means that the ban is in the form of an interim order for an emergency under Rule 9 – this also explains why the app companies involved here were not given a hearing before the ban.

So why are the Chinese app companies being given a chance to respond now?

In an emergency situation, there is no time to give stakeholders like the Chinese app companies a chance to respond before taking the required action. However, that action can’t become permanent without giving them a chance at a hearing – this is one of the principles of natural justice, which is extremely important in a country that follows the rule of law.

Rule 9 of the IT Blocking Rules recognises this principle, and states that while the Secretary of the Department of Information Technology can take urgent action as an interim measure, this has to then be reviewed by the committee set up under the rules to examine the requests for blocking public access.

As part of its evaluation of the interim measures, the committee has to give notice to the relevant stakeholders – in this case the Chinese app companies – who are to be given a chance to appear before the committee and submit their reply and clarifications.

Once they have done so, the committee has to send its recommendations regarding the case, including whether it is justifiable to block the apps under Section 69A of the IT Act, to the government. Only then can the ban on the 59 apps be finalised.

Does this mean the ban on the 59 Chinese apps is only temporary?

Technically, at this point, yes, the order isn’t final, but that’s not something the app companies or their users can rely on as a source of comfort.

What is the timeline for finalising the order for the ban?

Once the government takes emergency measures, they have to place the interim order before the committee within 48 hours for its evaluation. As the interim order was passed on Monday, 29 June, the government had till Wednesday, 1 July, to do this.

Once the committee receives a request/order for blocking, it is supposed to make a decision on it within seven working days. The app companies would have had to respond within 48 hours of receiving notice from the committee – from TikTok’s statement about an invitation, they would presumably be expected to give their reply by Friday, 3 July.

The final decision on the ban should be available, by 10 July or so, following this timeline.

What would TikTok (ByteDance, technically) need to argue/show to get their ban overturned by the committee? What proof does the government have against them?

In their public statement, TikTok has claimed that it “continues to comply with all data privacy and security requirements under Indian law and has not shared any information of our users in India with any foreign government, including the Chinese Government.” They also say they would not share such information in the future even if asked to.

While this would seem to address the broad issues raised by the government in their press release, we do not at this stage know exactly what information and evidence the government has indicated as ‘misuse’ and ‘stealing’ of data by the apps in question. Even the actual order by the government for the banning of the apps is not available at this time, only the press release.

The press release cites three sources of concerns about security and privacy breaches relating to the 59 apps:

  1. recommendations by the Indian Cyber Crime Coordination Centre, Ministry of Home Affairs;
  2. representations by citizens to the MHA and the government’s Computer Emergency Response Team (CERT-IN);
  3. concerns flagged inside and outside Parliament.

To argue against these concerns, the companies behind the apps would presumably need to see copies of all of them.

However, as Smitha Krishna Prasad, Director of the Centre for Communication Governance at NLU Delhi points out, the IT Blocking Rules “contain a broad confidentiality provision which provides that ‘strict confidentiality’ must be maintained in relation to any complaints/requests to block content”.

As a result, TikTok and other app companies may find themselves receiving very little information from the government about why they are being banned. Their only chance of getting the ban overturned will be to somehow convince the government that they will not in fact allow any data of their Indian users to be stored/transmitted outside India, especially to foreign governments.

What is the likelihood of TikTok’s ban being overturned?

It is difficult to say, because we don’t know exactly what information the government has against them and the other app companies. Experts point out that it is incredibly rare to see bans under Section 69A of the IT Act being overturned by the committee at the first instance, although there have been some cases where the blocking orders are reconsidered and overturned after some time.

Admittedly, there is little available data on this as the government doesn’t normally release much information about such blocking orders, but the chances would appear to be slim at this point.

In addition to the technical and legal aspects of this ban, there are also political considerations at play, given the current tensions between India and China, and the brutal killing of 20 Indian soldiers at the Galwan Valley – though of course these will not be officially part of the review process.

Can the app companies approach the courts if the committee upholds the ban?

As Smitha Krishna Prasad explains, “The rules do not provide for any appeals mechanism that allows intermediaries or originators of content to go to the court when a blocking order is received.”

However, this does not mean that the companies can’t go to court. In the Shreya Singhal case (which struck down Section 66A of the IT Act), the Supreme Court “specifically noted that the requirement for orders to recorded in writing indicates that they can be challenged before the courts”, Prasad points out.

This would have to be in the form of a writ petition, either before the high courts or the Supreme Court of India, where the app companies would have to argue that the government’s decision was not justified, that they do not pose a threat to India’s sovereignty/security/defence, and that they protect the data and privacy of Indian users.

However, as Prasad notes, “there are very few instances of such appeals being filed and there is little in the way of set precedents for the blocked apps / sites to follow in this case.”

TikTok released a statement on Thursday, 2 July, clarifying that they have no plans for legal action at this time. They have reiterated that they comply with Indian law, and that they are “committed to working with the government to address its concerns”.

Liked this story? We'll send you more. Subscribe to The Quint's newsletter and get selected stories delivered to your inbox every day. Click to get started.

The Quint is available on Telegram & WhatsApp too, click to join.

Stay Updated

Subscribe To Our Daily Newsletter And Get News Delivered Straight To Your Inbox.

Join over 120,000 subscribers!