Banning of 59 Apps by India Law in India and UN Resolutions

29th June,2020 at 8.49 PM Meity released a Press Note banning 59 Chinese App. There was a resounding effect of the said decision internationally.Most of the Countries have supported said ban.

Now let us see what if the same is challenged in court of Law.

Let us see first provisions of Indian Laws

Information and Technology Act,2000 is inter-alia concerned law. Section 2 provides for various definitions.

Section 2(a) defines term Access with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network;

Section 69A of the said Act empowers Central Government to block public access of any information it provides as under:

69A. Power to issue directions for blocking for public access of any information through any computer resource.–(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defense  of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource. (2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed. (3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.

69B. Power to authorise to monitor and collect traffic data or information through any computer resource for cyber security.–(1) The Central Government may, to enhance cyber security and for identification, analysis and prevention of intrusion or spread of computer contaminant in the country, by notification in the Official Gazette, authorise any agency of the Government to monitor and collect traffic data or information generated, transmitted, received or stored in any computer resource.

(2) The intermediary or any person in-charge or the computer resource shall, when called upon by the agency which has been authorised under sub-section (1), provide technical assistance and extend all facilities to such agency to enable online access or to secure and provide online access to the computer resource generating, transmitting, receiving or storing such traffic data or information.

(3) The procedure and safeguards for monitoring and collecting traffic data or information, shall be such as may be prescribed.

 (4) Any intermediary who intentionally or knowingly contravenes the provisions of sub-section (2) shall be punished with an imprisonment for a term which any extend to three years and shall also be liable to fine.

Explanation.–For the purposes of this section,– (i) ―computer contaminant shall have the meaning assigned to it in section 43; (ii) ―traffic data means any data identifying or purporting to identify any person, computer system or computer network or location to or from which the communication is or may be transmitted and includes communications origin, destination, route, time, data, size, duration or type of underlying service and any other information.]

Let us now see Constitutional provisions

Article 19 Guarantees Right to Freedom but under sub clause 2 government is empowered to make such laws or impose reasonable restrictions in the interest of country. It reads as ; ‘Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence’

National Security Act,1980 empowers government to detail any person for who is acting against national security.

It says : ‘ 3. Power to make orders detaining certain persons.—(1) The Central Government or the State Government may,— (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defense of India, the relations of India with foreign powers, or the security of India, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of Public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. Explanation.—For the purposes of this sub-section, “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” does not include “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.

Personal Note:

While reading the Act I felt that even definition of Foreign Company must be inserted and consequential amendment in the Act may be made as proposed by Committee of Law and Justice Department.

Now let us see what does United Nation (UN)  says on blocking of internet. On 16th May 2011 UN a report is submitted to the Human Rights Council by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression pursuant to Human Rights Council resolution 7/36. In particular, the resolution requests the Special Rapporteur “to continue to provide his/her views, when appropriate, on the advantages and challenges of new information and communication technologies, including the Internet and mobile technologies, for the exercise of the right to freedom of opinion and expression, including the right to seek, receive and impart information and the relevance of a wide diversity of sources, as well as access to the information society for all.

Basically it provides and discuss about blocking and filtering but there is no mention of blocking or banning due to enemy country. The situation today in Asia region persist was not there when this Rapporteur was submitted.

Para 22 of the said Rapporteur says

22. The right to freedom of opinion and expression is as much a fundamental right on its own accord as it is an “enabler” of other rights, including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly. Thus, by acting as a catalyst for individuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realization of a range of other human rights.

IV. Restriction of content on the Internet

28. As outlined under Chapter III, any restriction to the right to freedom of expression must meet the strict criteria under international human rights law. A restriction on the right of individuals to express themselves through the Internet can take various forms, from technical measures to prevent access to certain content, such as blocking and filtering, to inadequate guarantees of the right to privacy and protection of personal data, which inhibit the dissemination of opinions and information. The Special Rapporteur is of the view that the arbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right, as it not only creates a “chilling effect”, but also leads to other human rights violations, such as arbitrary detention and torture and other forms of cruel, inhuman or degrading treatment or punishment.

A. Arbitrary blocking or filtering of content

29. Blocking refers to measures taken to prevent certain content from reaching an end-user. This includes preventing users from accessing specific websites, Internet Protocol (IP) addresses, domain name extensions, the taking down of websites from the web server where they are hosted, or using filtering technologies to exclude pages containing keywords or other specific content from appearing. For example, several countries continue to block access to YouTube, a video-sharing website on which users can upload, share and view videos. China, which has in place one of the most sophisticated and extensive systems for controlling information on the Internet, has adopted extensive filtering systems that block access to websites containing key terms such as “democracy” and “human rights”. The Special Rapporteur is deeply concerned that mechanisms used to regulate and censor information on the Internet are increasingly sophisticated, with multi-layered controls that are often hidden from the public.

The Special Rapporteur is also concerned by the emerging trend of timed (or “justin-time”) blocking to prevent users from accessing or disseminating information at key political moments, such as elections, times of social unrest, or anniversaries of politically or historically significant events. During such times, websites of opposition parties, independent media, and social networking platforms such as Twitter and Facebook are blocked, as witnessed in the context of recent protests across the Middle East and North African region. In Egypt, users were disconnected entirely from Internet access.

 States’ use of blocking or filtering technologies is frequently in violation of their obligation to guarantee the right to freedom of expression, as the criteria mentioned under chapter III are not met. Firstly, the specific conditions that justify blocking are not established in law, or are provided by law but in an overly broad and vague manner, which risks content being blocked arbitrarily and excessively. Secondly, blocking is not justified to pursue aims which are listed under article 19, paragraph 3, of the International Covenant on Civil and Political Rights, and blocking lists are generally kept secret, which makes it difficult to assess whether access to content is being restricted for a legitimate purpose. Thirdly, even where justification is provided, blocking measures constitute an unnecessary or disproportionate means to achieve the purported aim, as they are often not sufficiently targeted and render a wide range of content inaccessible beyond that which has been deemed illegal. Lastly, content is frequently blocked without the intervention of or possibility for review by a judicial or independent body.

Many States have adopted laws which impose liability upon intermediaries if they do not filter, remove or block content generated by users which is deemed illegal. For example, in Turkey, Law 5651 on the Prevention of Crime Committed in the Information Technology Domain, which was enacted in 2007, imposes new obligations on content providers, ISPs and website hosts. It also grants authority to an agency to issue administrative orders to block websites for content hosted outside of Turkey, and to take down eight broad types of unlawful content, including “crimes against Ataturk”, which includes “insulting” the founder of the Republic of Turkey, Mustafa Kemal Ataturk. In Thailand, the 2007 Computer Crimes Act imposes liability upon intermediaries that transmit or host third-party content and content authors themselves. This law has been used to prosecute individuals providing online platforms, some of which are summarized in the first addendum.

Suggestions by Rapporteur

Arbitrary blocking or filtering of content on the Internet

70. The Special Rapporteur is deeply concerned by increasingly sophisticated blocking or filtering mechanisms used by States for censorship. The lack of transparency surrounding these measures also makes it difficult to ascertain whether blocking or filtering is really necessary for the purported aims put forward by States. As such, the Special Rapporteur calls upon States that currently block websites to provide lists of blocked websites and full details regarding the necessity and justification for blocking each individual website. An explanation should also be provided on the affected websites as to why they have been blocked. Any determination on what content should be blocked must be undertaken by a competent judicial authority or a body which is independent of any political, commercial, or other unwarranted influences

Disconnecting users from Internet access, including on the basis of intellectual property rights law

78. While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

So the Rapporteur is silent on situations like war in giving suggestions.

Difference between App and Website

As such both are used on the same media (smartphones and tablets), mobile applications (apps) and mobile websites (also called Web Applications) are very different. A mobile app is a program that is downloaded and installed onto a user’s mobile device, whereas a mobile website is simply a website adapted to tablet and smartphone formats.

In India there is Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 These Rules were declared valid in Shreya Singhal vs UOI by Supreme Court. In para 109 of the said Judgment its observed by Supreme Court that, ‘It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.’

The Rules further provide for a hearing before the Committee set up – which Committee then looks into whether or not it is necessary to block such information. It is only when the Committee finds that there is such a necessity that a blocking order is made.

Before blocking the 59 Chinese apps government has received several complaints and noted that there is a threat to sovereignty of country and hence decided to block 59 Apps. Government Press release makes it clear that they have followed proper procedure and the same is in consonance with Rapporteur suggestion. Hence any party approaching court may not succeed.

Shruti Desai

2nd July,2020

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