BAN OF CHINESE APPS: NEED AND IMPACT

Picture Courtesy: https://gadgets.ndtv.com/apps/news/government-said-to-widen-chinese-app-ban-to-include-more-from-xiaomi-baidu-2274667

This guest post was written by Akhil Mishra, a student of Amity Law School, Delhi.

Introduction

Amidst the India-China border dispute, that was unfolding in Ladakh^[1], the government of India exercised its power given under the IT Act,^[2] by banning 59 Chinese apps, and issued the information regarding the same through a press release,^[3] on June 29, 2020. The ban was issued on the grounds of protection of the “sovereignty and the security” of the nation, whereby the given apps were reportedly stealing the data of Indian citizens and sending them to server locations outside of India. The press release also stated that the Ministry of Home Affairs sent an “exhaustive recommendation” for the ban of the said apps^[4] in furtherance of the reasons given above. The top 5 Chinese apps, as a consequence, which was banned in India^[5], are as follows:

• TikTok
• Helo
• ShareIt
• UcBrowser
• CamScanner

The legality of the ban is justified, however, there is a bleak chance for the app firms to get interim relief from the court on the ground that notice was not served to them before the ban was made effective^[6]. But the powers given under Section 69A are emergency powers, which negates the requirement of a prior issuance of notice.

However, it is incorrect to assume that Chinese influence in the Indian market is over. The Chinese smartphone industry is still predominant in India. According to the 2019 statistics, out of 158 million smartphone units that were shipped in India, at least 72% of them were Chinese Brands^[7]. The ban is expected to increase the market activity of the domestic sector, as the Indian companies are already starting to come up with innovative products.

The Need & Legality Of The Ban:

The press release by the government already states the reasoning for the ban i.e. for the security of the state and public order, as well as protecting the sovereignty and integrity of India.^[8] The government also stated that there have been multiple reports from the Indian citizens regarding the loss of data.

The legality of the ban is challenged on the grounds of Geoblock, which means that someone’s right to content is restricted based on their geographical location. Additionally, Tiktok was a means for millions of people to make their voices heard on the internet, with some challenging the ban as a direct violation of Art.19(1)(a) and Art. 21 of the Indian Constitution. The Supreme Court in the case of Justice K.S.Puttaswamy(Retd) vs Union Of India^[9], talked about the compartmentalization of the fundamental rights and stated that the right of privacy is protected under the 3 heads of the Indian Constitution i.e Article 14, 19, and 21. TikTok alone had more than 100 million users, with the app seeing a total usage of 5.5 billion hours in 2019^[10]. There has been judicial opinion in this regard as well, as it is evident from the case of Faheema Shirin.R.K vs State Of Kerala^[11], where the Kerala H.C was of the opinion that interfering with someone’s access to the internet is a violation of their right to privacy.

However, the rights that are given under Article 19(1)(a) can be restricted in view of public order and security under Article 19(2) of the Constitution. In regards to the use of Section 69A of the IT Act, the Supreme court in the case of Anuradha Bhasin v. Union of India & Ors.^[12] recognized the powers that were given to the government in restricting access to the content of users for the peace and security of the nation at large. Additionally, the constitutionality of the section was recognized in the case of Shreya Singhal v. Union of India & Ors^[13].

Thus, access to the internet as a whole can not be restricted, but the content and app ban is totally just, fair, and legal, as long as it is done for the welfare of the nation. India isn’t the only country this applies to, as evident from the actions of the U.S., whereby military personnel was advised against the use of TikTok^[14]. Though TikTok was of the most prevalent concern, other applications were also banned as a preventive measure.

The Impact of The Ban:

Following the ban, there has been an influx of alternative applications accessible for Indian citizens as a means to diminish the impact of the loss of the Chinese apps^[15]. In order to understand the reception amongst Indians, a survey was conducted with the results showing that 49% of the Indians are content with Chinese Firms working in India as long as their private data is not shared with Chinese servers or outside of India^[16]. Users who already have access to the banned apps, installed on their phones are still able to use the apps, however, updates will no longer be available.

The ban also serves as a model for other countries to follow the footsteps of India, and can potentially hamper China’s rise as a Global Tech Power.^[17] Analysts have spoken about their concern for the Indian startups, with regards to banned Chinese apps, as there is a potential to lose Chinese Investment in return.^[18] The 2019 statistics show that the Chinese Investment in the Indian Tech Startups in the past has increased multifold i.e. 12 times and up to 4.6 Billion Dollars.^[19] Another adverse effect of the ban is the loss of communication amongst the different users of the app and as well as their loss of jobs.^[20]

However, the beneficial aspects that arise from the situation at hand, includes the growing contribution of the domestic industries and app developers as a means of providing alternatives to the banned apps. A newfound opportunity has been given to these app developers, with the rise of apps like Mitron, Roposco, JioSwitch, Chingari, AdobeScan, etc. Patriotism has paved the way for the investors, as it is evident from the statements of Flipkart’s former chief product officer and US-based angel investor Balaji Srinivasan who has offered a helping hand to the Indian developers.^[21]

In response to the TikTok ban, it’s Chief Executive Kevin Mayer has written a letter to the Indian government, in which he mentions the app users privacy data, with an additional emphasis on the fact that the data was never given to the Chinese government, nor the government ever asked for it. The company is also taking measures to distance itself from the Chinese roots, in order to appeal to the global market and audience.^[22]

Conclusion

India is well within its powers to impose the ban on the Chinese apps on June 29th, 2020. It’s effects on the Indian Economy and Tech World is yet to be fully realized, however, it does open up the opportunity for the small-time Indian developers and entrepreneurs to come up with substitutes, that will be beneficial to all. The Ladakh border situation has improved since the ban, with both sides agreeing to an early and complete disengagement, from some of the hot spots of the region.

Although the general public had to suffer because of the ban, the alternatives were readily available, and the citizens took the opportunity to adapt to domestic alternatives. The ban did not provide for any guidelines regarding the complete removal of the apps from the users’ smartphones, however, the updates for the same apps will be stopped. A newfound opportunity has been provided for ingenious apps to come up front, and take charge of the multimedia platform. With the heart of the citizens beating with patriotism, the overall consensus is towards the use of the apps developed by Indian developers, and make the best of this given opportunity.

^[1] Sushant Singh, India-China Border Stand-off, Indianexpress, https://Indianexpress.com/article/explained/india-china-stand-off-what-we-know-about-the-unfolding-situation-in-ladakh-6447644/ (Last Visited on July 19, 2020)

^[2] The Information Technology Act, 2000 s. 69A

^[3]  Government Bans 59 mobile apps which are prejudicial to sovereignty and integrity of India, defence of India, security, https://pib.gov.in/PressReleseDetailm.aspx?PRID=1635206 (Last Visited on July 19, 2020

^[4] Ibid

^[5] Yash Tripathi, Top 25 Chinese Apps List In India, Republicworld,  https://www.republicworld.com/technology-news/apps/Chinese-apps-taking-over-the-Indian-app-market-know-the-top-25-apps.html (Last Visited on July 20, 2020)

^[6] FE Bureau, Bleak chances for Chinese apps to get interim relief from courts, https://www.financialexpress.com/industry/can-Chinese-apps-like-tiktok-move-courts-against-ban-heres-what-rules-say/2013510/ (Last Visited on July 20, 2020)

^[7] Shelly Singh, China’s mobile and digital dominance runs deep into Indian economy, EconomicTimes, https://economictimes.indiatimes.com/tech/hardware/chinas-mobile-and-digital-dominance-run-deep-into-Indian-economy/articleshow/74154017.cms (Last Visited on 20 July, 2020)

^[8] Supra note 3

^[9] Writ Petition (Civil) No 494 Of 2012

^[10] Ankita Chakravarti, Indian users spent over 5.5 billion hours on TikTok in 2019, reports reveal, Indiatoday, https://www.indiatoday.in/technology/news/story/Indian-users-spent-over-5-5-billion-hours-on-tiktok-in-2019-reports-reveal-1642876-2020-02-03 (Last Visited on 20 July, 2020)

^[11] WP(C)No.19716 OF 2019(L)

^[12] Writ Petition (Civil) No. 1031 Of 2019

^[13] Writ Petition (Criminal) No.167 Of 2012

^[14] Neil Vigdor, U.S. Military Branches Block Access to TikTok App Amid Pentagon Warning, NYTimes, https://www.nytimes.com/2020/01/04/us/tiktok-pentagon-military-ban.html (Last Visited on July 21, 2020)

^[15] Dhruv Bhutani, The best alternatives to Chinese apps banned in India, AndroidAuthority, https://www.androidauthority.com/Chinese-apps-alternative-banned-india-1134373/ (Last Visited on July 22, 2020)

^[16] Pia Krishnankutty, 49% Indians say Chinese firms can operate if there isn’t data sharing with China: Survey, ThePrint, https://theprint.in/india/49-Indians-say-Chinese-firms-can-operate-if-there-isnt-data-sharing-with-china-survey/456746/ (Last visited on July 22, 2020)

^[17] Bloomberg, India’s app ban threatens China’s rise as a global tech power, Times Of India, https://timesofindia.indiatimes.com/business/india-business/indias-app-ban-threatens-chinas-rise-as-a-global-tech-power/articleshow/76715699.cms (Last Visited on July 22, 2020)

^[18] GlobalTimes Reporters, Ban on Chinese apps will hurt Indian start-ups, deter Chinese investment: analysts, https://www.globaltimes.cn/content/1193046.shtml (Last Visited on July 23, 2020)

^[19] Editorial, Chinese investments in Indian start-ups grow 12 times to USD 4.6 bn in 2019: GlobalData, https://retail.economictimes.indiatimes.com/news/industry/Chinese-investments-in-Indian-start-ups-grow-12-times-to-usd-4-6-bn-in-2019-globaldata/76655652 (Last Visited on July 23, 2020)

^[20] GlobalTimes Reporters, Indians worry Chinese app ban could result in job losses, reduced communication, https://www.globaltimes.cn/content/1193204.shtml (Last Visited on July 24, 2020)

^[21] Sandeep Soni, Chinese apps ban watershed moment for desi startups’ user experience, valuation only if sentiment stays, FinancialExpress, https://www.financialexpress.com/industry/sme/Chinese-apps-ban-watershed-moment-for-desi-startups-user-experience-valuation-only-if-sentiment-stays/2010451/ (Last Visited on July 24, 2020)

^[22] TikTok distances itself from Beijing in response to India’s app ban, https://www.business-standard.com/article/companies/tiktok-distances-itself-from-beijing-in-response-to-india-s-app-ban-120070400376_1.html (Last Visited on July 24, 2020)