Government of India announced the ban[1] of 59 Chinese apps giving a pertinent reason of threat posed by these apps on national security which ultimately impinges upon the sovereignty and integrity of India. The Government exercised its power to ban under Section 69-A of the Information Technology Act, 2000[2] read with the relevant provision of the Information Technology (Procedure and Safeguard for Blocking of Access of Information by Public) Rules, 2009[3]. After the decision we see various stakeholders giving their viewpoint on the ban. While various cyber experts called this a welcome move, others criticized the move as a violation of International Law obligation and also the Information technology Act, 2000, particularly the application of Section 69-A. Too much surprise, China issued two official statements, giving its concern over the ban on apps. The first official statement[4] comes a day after the ban (June 30) expressing deep concerns over the decision where the Chinese foreign ministry spokesperson Zhao Lijian insisted upon the responsibility to uphold the rights of Chinese business. While the other official statement[5] comes later that day from the Chinese Embassy in New Delhi, stating that India’s measure selectively and discriminatorily aims at certain Chinese apps and is “suspected” of violating WTO rules. These concerns raised various issues with respect to the obligation in WTO and the effective application of Section 69-A. Let us discuss both the valid concerns.
WTO Obligation
World Trade Organization, replacing General Agreement on Tariffs and Trade in 1994, is the largest inter-governmental organization concerning itself with the regulation of international trade through various agreements signed by member countries. India and China, both are the members of the WTO. These agreements have different rules as to how the member countries could effectively work without prejudicing the other. Internet regulation and the issues of e-commerce have constantly been negotiated by member countries. The WTO’s foundational agreements do addressed the telecommunication and other electronic networks, including the internet. Concerns over internet regulation and governing the internet privacy is generally regulated through the General Agreement on Trade in Services[6] (GATS). The GATS discussed four modes of supply in its present form. These four modes of supply[7] are cross-border supply, consumption abroad, commercial presence and presence of a natural person. In these modes of supply, the issue of internet regulation and telecommunication is covered under the cross-border supply. Under this mode, the service is delivered within the territory through cross border where the supplier is present in the originator country. The supplier and the consumer transact from their respective home economies. Hence, this makes us clear that in this situation GATS will apply.
All these agreements do come with certain exceptions which become very pertinent to be discussed in the current situations. These exceptions do substantiate some of the very pressing issues like that of data protection and free expression, which various member countries have reiterated at various forums. Article XIV of GATS clearly states that nothing in the agreement shall be construed to prevent the adoption or enforcement by any member of measures “necessary” to protect the public or to maintain the public order. The “public order” concern is clearly mentioned in the Government notification. More importantly sub-clause (ii) of clause (c) of Article XIV clearly mentions the protection of the privacy of individual in relation to the “processing and dissemination of personal data and the protection of confidentiality of individual records and accounts”. The article overrides any other provision of this agreement in its fullest capacity. Article XIV bis also goes on the same line talking about security exception. Clause (b) of the article does not prevent any member to take action when it is necessary for its essential security interest. The ongoing border tension can also be taken as a reason for banning if one reads sub-clause (iii) of clause (b) of the same article which clearly states situation with regards to “emergency in international relation”. The current situation does exhibit an emergency situation in the relations of India and China.
WTO has nothing to do with the internet privacy of which it does not have any power to force any Government to forego sovereign privacy protection. Right from the history of establishment of WTO, no decision and action have ever been taken on the protection of internet privacy on behalf of any member country. Article XIV covers almost all measures which the Government will find necessary for the protection of the privacy of individual, overriding all other provisions. In this discussion, it’s very pertinent to discuss an important case of US-Gambling[8] against Antigua, in which US stops the cross-border supply of gambling and betting services communication from Antigua by enacting law such as “the Wire Act”, the “the Travel Act” and the “the Illegal Gambling Business Act”. The Appellate Body decides in favour of US, the act being in conformity on the ground specified under Article XIV(a). The Appellate Body found the measure “necessary”; US making prima facie case showing “necessity” to maintain public order. India substantiated the “necessary” part of banning the apps by giving the reason of national security, which prima facie shows the “necessity”.
The contention of China that the move of India is violation of WTO is baseless and without reason. India does have each and every reason according to the agreement which makes the ban in conformity with the rules of WTO.
Information Technology Act, 2000
Various platforms discussed the validity of the ban with regards to the IT Act, 2000 read with the Information Technology (Procedure and Safeguard for Blocking of Access of Information by Public) Rules, 2009. The notification exactly mentioned the ban “in view of the emergent nature of threat”. With substantiating the “emergent nature” of the ban, the rule which has been exercised is undoubtedly Rule 9. This rule specifies the blocking of information in cases of emergency for which no delay is acceptable. Discussion over Rule 7 and Rule 8, regarding the whole process for compliance to give effect the ban, is baseless. Hours after the ban, TikTok India issued the statement[9] that they have been invited to meet the Government stakeholders concerned to offer clarification, along with 58 others. TikTok in its statement too clarified about the “interim nature” of the ban. Even if the press note does not expressly mention the rule under which the Government proceeded, specifying “emergent nature” makes it clear. The “urgency” for this step seems to be perfect, considering the border tension. The argument in relation to the violation of freedom of speech and expression seems immature, giving the restrictive nature of these rights. Moreover, banning an app does not in any case restrict any individual right to speech and expression. Individuals have other platforms where they can express themselves.
It is not the first time an app is banned. In April 2019, the Madras High Court issued an order[10] prohibiting downloading the TikTok citing the widespread circulation of pornography, exposure of children to disturbing content. In 2017, Indian Army[11] ordered its troops on China border to delete apps due to data security implication. These apps are updated regularly by the Army which now counts to 89 banned apps which also include deleting Facebook. Earlier this year, Indian Navy[12] too banned and restricted 85 applications including Facebook, Instagram. The current ban is indeed different and is much “sound” from a legal perspective in the present scenario since grounds like national security is difficult to challenge in a court of law.
* Author is pursuing LLM from Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur
[1] https://pib.gov.in/PressReleasePage.aspx?PRID=1635206
[2] Information Technology Act, 2000
[3] Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009
[4] https://edition.cnn.com/2020/06/30/tech/india-china-app-ban-intl-hnk/index.html
[5]https://news.cgtn.com/news/2020-07-01/China-India-s-ban-on-Chinese-apps-may-violate-WTO-rules-RLyGBmnSaQ/index.html
[6] General Agreement on Trade in Services, 1995
[7] https://www.wto.org/english/tratop_e/serv_e/cbt_course_e/c1s3p1_e.htm
[8]United States — Measures Affecting the Cross-Border Supply of Gambling and Betting Services – Communication from Antigua and Barbuda, WT/DS285/26, dated 25-4-2013, available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm
[9] https://www.ndtv.com/india-news/tiktok-india-full-statement-after-being-blocked-2254311
[10] S. Muthukumar v. Telecom Regulatory Authority of India, WP (MD) No. 7855 of 2019, order dated 3-4-2019
[11]https://theprint.in/defence/tiktok-wechat-were-banned-by-armed-forces-much-before-modi-govt-blocked-them/451639/
[12]https://theprint.in/defence/cant-use-facebook-post-on-twitter-new-social-media-rules-for-navy-after-spy-ring-bust/359135/?amp
Image Credits: The Financial Express