In Sep 2020, the Government of India out of the blue banned Players Unknown Battle Ground and 117 other apps in India a few days after banning one of the most popular applications: Titkot. As of now a total number of 224 Chinese apps have been banned. The news generated a great stir amongst gamers and all other app users. The explanation given by the government stated that the apps were ‘prejudicial to sovereignty and integrity’. The Ministry of Electronics and Information Technology highlighted another aspect, that is, the ‘stealing and surreptitiously transmitting users' data’ to servers located outside the country[1]. Many questions were raised. For instance, whether the government employed sovereign power to ban popular apps in the country without any deterrent effect? The international news mediums telecasted the news stating that the Indian government banned the apps because of geopolitical tensions with China and termed it as a ‘digital strike’[2].
Some of the app companies ensured that they were taking action and providing adjunct protection to the Indian users as India has the largest market and boycotting the apps in India can lead to enormous losses. PUBG also occupied half of the game streaming market[3]. The PUBG Corporation also stated that they are ready to work hand in hand with the government and clarify how Intellectual Property is owned and developed by the Company and take on all the publications and responsibilities within the country. But the statement has been put on hold and there is no response from the side of the government till now. From a legal point of view, the government has all the authority to block a website or application if it is claimed to be a threat to the national security.
BORDER CONTROVERSIES:
PUBG amongst several other Chinese origin apps was banned as it was under the radar for possible misuse of data, as the data of these apps is stored with the developers who are foreign entities and consequently can be misused by foreign countries. It was coined as a malicious app. There remains a presumption that the ban was due to an outburst of border issues. Yet, the government stated that there is a possible threat of theft by Chinese companies.
Proceeding forward with the border controversies, the main issue is the lack of a proper border between India and China. For the past few months, both countries have been moving their army forces to Galwan Valley. The Pangong Lake connects the countries as one end flows in India and the other end runs in China. In the India-China war which broke in 1962, China allegedly used the lake in order to attack India. So, the Indian Special Force which consists of Tibetan Officers concerted in the southern mountain peaks before the arrival of China. This sudden, unforeseen move by the Indian Army alarmed and triggered the Chinese Army. This news is unverified by either of the governments involved and is considered as an allegation reported by the International media only[4]. Soon enough, Chinese media reported that India has occupied the Chinese border. The American Intelligence Agency affirmed that China is partaking in these actions intended to create a huge commotion.
LEGAL PROVISIONS:
Section 69A of the Information Technology Act, 2000 with the provisions of Information Technology (Procedure and Safeguard for blocking access of information by the public) Rules, 2009 gives various powers to the Central government and State government. The powers include blocking public access to any information online on websites as well as applications. It was inserted by the 2008 amendment to the Act. As per the Act, the Government of India can forbid the application after following the due procedure. Only the Court, Government of India, and Telecommunication Department can direct block the online apps and information. The government appoints a Nodal Officer to receive complaints regarding the offensive content. The Officer is bound to see the merits in the complaint and forward it to the designated officer followed by forming a committee to examine the grievance. The Party will be given an opportunity to be heard, and if the committee is satisfied with the decision of blocking the app/s it can direct the same after getting the approval of the Secretary of the Department of Information Technology in ordinary circumstances.
There can also be a case of emergency as mentioned in Rule 9[5]. Accordingly, the Ministry of Electronics and Information Technology issued an interim measure to block the applications. Though no hearing is given in the beginning, a 48-hour time limit is given to the aggrieved party to appear on a specified date and time with no delay. The decision of the secretary will be considered to be final. The aggrieved party can consequently challenge the decision under Article 226 of the Constitution before any High Court. The said PUBG and other apps were banned on the grounds of the formerly discussed emergency clause.
Strict and mandated confidentiality[6] is followed by the means of the Act and so, Right to Information is not applicable. The Committee members are mostly from the executive branch of the government. As dissension emerged regarding the provisions due to the absence of public announcement, in Shreya Singhal V. Union of India[7], the court upheld the validity of Section 69A of the Act. It was also assumed to infringe Article 19 of the Indian Constitution. In Faheema Shirin V. State of Kerala[8], the court held that the provision came under the purview of reasonable restrictions and was effective.
Internationally, the World Trade Organisation allows security exemption to the state to take action when it is considered to be necessary for the security of the nation. The Dispute Settlement body looked at it as an exception under ‘essential security interest’[9].
CONCLUSION:
The ban of the apps by the Government of India is valid as per legal principles. Although this act was opposed by several parties, it was largely appreciated by many too. The action taken against the apps is considered as an indirect action taken against China for their wicked act at the border. The forbidden apps are being replaced by the apps made in India. It has also predominantly encouraged the use of Indian apps leading to the welfare of the Indian economy.
[1] Jagmeet Singh, 2/09/2020, PUBG Ban in India: Legal Experts Question the Chinese App Ban, https://gadgets.ndtv.com/apps/news/pubg-ban-india-118-chinese-apps-legal-experts-comments-2289472#:~:text=PUBG%20Mobile%20and%20117%20other,Information%20by%20Public)%20Rules%202009.
[2] Sai Ishwar, 30/06/2020, Digital strike: India bans 59 Chinese mobile apps on security threat, https://www.business-standard.com/article/companies/digital-strike-india-bans-59-chinese-mobile-apps-on-security-threat-120063000052_1.html
[3] Megha Mandavia & Priyanka Sangani, 09/09/2020, App ban fallout: PUBG Corporation cancels India franchise with Tencent Games,
https://economictimes.indiatimes.com/tech/software/app-ban-fallout-pubg-cancels-india-franchisee-with-tencent/articleshow/77992137.cms?from=mdr
[4] Aljazeera, 2/09/2020, India bans 118 more Chinese apps as border dispute escalates, https://www.aljazeera.com/news/2020/09/02/india-bans-118-more-chinese-apps-as-border-dispute-escalates/
[5] Information Technology (procedure and safeguard for blocking access of information by public) Rules, 2009
[6] Rule 16 of Information Technology (procedure and safeguard for blocking access of information by public) Rules, 2009
[7] Shreya Singhal V. Union of India, (2013) 12 S.C.C. 73
[8] Faheema Shirin V. State of Kerala, 2019(2) KHC 220
[9] Vaibhav Parikh and Yashasvi Tripathi, 12/08/2020, Technology Turmoil: The Impact of India Banning Chinese Apps, https://www.law.com/legaltechnews/2020/08/12/technology-turmoil-the-impact-of-india-banning-chinese-apps/
Authored by,
Jaya Shanthini Ilarajan,
School of excellence in law
Image credits: https://www.theimagefreak.com/pubg-mobile-along-with-117-other-chinese-apps-banned-in-india/ [Image used for academic representation only]
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