Tuesday, 19 July 2022

Legality of Tiktok Ban in India

 Legality of Tiktok Ban in India

TikTok has more than 100 million active users in India. Combined with more affordable internet recently, Tik Tok has brought marginalised people online in a way no other app has been able to. Trans, lower caste, independent artists from rural areas are creating and broadcasting content on TikTok in a way that was previously the monopoly of groups with greater social capital.

Not only is the short-from video app convenient to use, but it is also more accessible for it has given people who don’t lead instagrammable lives or even speak English the confidence to share their work and showcase their skills.

 in the past decade or so, many Indian students have enrolled in Chinese universities. They too depend on apps like WeChat to communicate with their colleagues and administrations.

Any account of freedom of expression that does not consider how this ban will affect already marginalised communities is disingenuous at best. Since apps that provide a platform for expression and allow for the dissemination of information are protected by Art.19(1)(a) of the Indian Constitution, a constitutional challenge to the ban is likely.

Recently, the Kerala High Court in Faheema Shirin v. State of Kerala recognised that interfering with someone’s access to the internet violates inter alia their fundamental right to privacy.

Subsequently, the Supreme Court in Anuradha Bhasin v. Union of India observed that an indefinite suspension of the internet could amount to an abuse of power. However, it fell short of reaffirming the position laid down by the Kerala High Court. However, since the decision in Faheema Shirin has not been overruled subsequently, it holds enormous persuasive significance and should correctly be assumed to be the correct position in law. Assuming therefore that there does exist freedom of access to the internet under Article 19, it becomes important to evaluate the effect the geoblock on Chinese Apps has on this right.

In order for the freedom of speech and expression to be meaningful, the right must be inclusive and available to everyone; not just those with the requisite social capital to access applications with relatively complex and inaccessible user interfaces. This is particularly true because of low levels of digital literacy in India. The freedom to express in this context should be understood to include the manner in or platform on which people wish to express themselves. Further, even if one is to assume that the freedom to engage in trade or business is not available to Chinese app developers (presumably non-citizens), they continue to exercise the right against under article 14.

In Justice Puttaswamy (Retd.) I v Union of India as well as the decision concerning Modern Dental College the Supreme Court has reaffirmed that rights cannot be viewed as distinct compartments. They must be viewed as a network of interconnected freedoms that complement each other. The most obvious right to get implicated by a geoblock is the fundamental right to access the internet.

Admittedly, the basis of imposing such a restriction has to be one of the numerated conditions mentioned under Article 19(2) (i.e. public order, national security, etc). At the same time, however, due to the interconnected nature of constitutional freedoms, it would also have to be fair, just and reasonable under Article 14. This means that the manner in which the geoblock is imposed should not be arbitrary. 

This right under Article 14 is available to both citizens and non-citizens. The Press Information Bureau notification, therefore, potentially raises two distinct claims based on the right to equality under Article 14. The first, by Chinese tech giants who are already raising concerns of dissimilar treatment with apps developed in other jurisdictions which could potentially also be similarly inconsistent with inter alia privacy concerns (in fact, the Calcutta High Court has recently held that a foreign entity can file a writ petition in an Indian Court in the context of Article 226 of the Constitution).

The second, by Indian users who feel that the decision to ban Tik Tok restricts their access to the internet and the ability to express themselves in a manner that is unreasonable.

In order for a geoblock to be fair, just and reasonable, it would have to be consistent with Article 14 which requires that all persons are treated equally before the law. Article 14, however, does allow dissimilar treatment between two different classes provided that the classification made between them is reasonable. 

A classification between two groups (e.g. Chinese apps on the one hand and American or all other apps on the other) is reasonable if two conditions are satisfied. First, there exists some intelligible differentia, or distinguishing feature between the two groups. Second, the dissimilar treatment has a rational connection with the object that it seeks to achieve. 

The notification treats Chinese investors (i.e. app developers) differently from all other app developers who may also be making similar applications and have been reported to raise similar concerns of (cybersecurity, misinformation, etc.) in the past. However, in Anuradha Bhasin v. Union of India & Ors., the Indian Supreme Court (para  81) admitted that Section 69A read with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 permit the Indian Government to impose narrowly tailored restrictions on access to content. The Court further acknowledged that in Shreya Singhal v. Union of India & Ors., the Supreme Court had acknowledged the constitutionality of section 69A. The Court (in para 111) recognised that the rules are not unconstitutional.  To put it simply, the restriction must be on access to specific platforms on the internet and not access to the internet as a whole. Granularly determined restrictions to access could potentially satisfy this condition, subject to other provisions in the Constitution being met.

 


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