The demand for banning the ‘Tik-Tok’ Mobile App: Understanding the law involved

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As per a recent study, India is currently the fastest growing market for mobile applications (apps). Such a rise for India stems from over 250 million Indians who have a smart phone and download these apps. One such heavily downloaded app is Tik-Tok, which has over 1 billion downloads worldwide, a quarter coming from India.

This app which allows users to create short 10 second videos has been in the center of a storm in India. The furor revolves around the fact that the app while enabling the user to create such videos also provides them with the option of using as a background shocking and scandalous content, particularly found to be degrading to women.

 There have been several quarters, calling for a ban on the app as it increases the possibility of a law and order situation, promotes vulgar content and degrades Indian culture. In furtherance of the same, a Petition has been filed in the Bombay High Court.

This polemic against ‘Tik-Tok’ raises a question about the law involved in banning an internet/mobile application. I wish to address the above question in the present post. I shall begin by first explaining the procedure for banning online content and in what circumstances can the same be invoked. This shall be followed up by analyzing the present ‘Tik-Tok’ situation.

Banning of Mobile Apps:
The Information Technology Act, 2000 is the governing law for electronic content and offences relating to the same. The Act was passed to provide legal recognition to electronic transactions and govern connected matters.

Section 69A authorizes the central government or its authorized officer (‘Designated Officer’) to issue directions for blocking of public access of any information through a computer source. Such information includes the use of mobile apps as well.[1]

The provision lays down the grounds on which this access can be blocked. They are: interest of sovereignty and integrity of India, defence 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. The Court has interpreted the term ‘for preventing incitement to the commission of any cognizable offence relating to above’ to mean any cognizable offence i.e. those offences for which a police officer can make arrests without a warrant [Facebook v. State of West Bengal, 2018 SCC Online Cal 2].[2]

The government has also passed the Procedure and Safeguards for Blocking for Access of Information by Public Rules, 2009 which lays down detailed procedure for blocking of online information (‘Rules’).

A direction to ban access can be issued in two situations i.e. on a request from a Nodal Officer or from the order of a competent court.

A. On a request from a Nodal Officer-
The Rules mandate every organization i.e. State governments and Union territories to designate a Nodal Officer (Rule 4). Any citizen of India who wishes for any information to be blocked, has to submit a representation to the Nodal Officer. If the Nodal Officer finds the request valid, she/he forwards it to the Examination Committee. It is to be noted that the application has to mandatorily come through the Nodal Officer.

The Rules provide for an Examination Committee chaired by a Designated Officer appointed by the Central Government along with other representatives (who should not be below the rank of a Joint Secretary in Minsitry of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Energy Response Team). The Committee evaluates the request and assesses whether the said content falls within the grounds under Section 69A. Accordingly, the Committee submits a representation.

Slide1

[Procedure for Blocking of Content]

The Designated Officer then forwards the recommendation to the Secretary, Department of Information Technology. Once, the Secretary gives a green signal to the recommendation, following which a direction blocking the information is passed. Such a direction has to be reasoned i.e. on what basis has the information been blocked.

The government is mandated to constitute a Review Committee, which should meet every 2 months and record its findings regarding the directions passed. It can also set aside the blocking directions and order unblocking (Rule 14). In instances where the government has not complied with the above procedure, Courts have stepped in and directed compliance.[3]

B. By a Court order-
The Rules also provide for blocking of information due to a Court order. Therefore, in cases where the Court has ordered for blocking any information, the Designated Officer is bound to implement the same immediately upon receiving the copy of the order. This power of the Court has been exercised in the famous Blue Whale Game case [Registrar v. Secretary to Government, (2017) SCC Online Mad. 25298], where the Court on its own motion, directed the government to ban the game and ensure intermediaries like Google Playstore and AppStore, do not allow access to it.

The directions of the Designated Officer and the Court are binding not just on the party that owns the content but also the intermediaries. The Act holds the intermediaries equally liable, if they do not take off the content once they are notified of the directions [Section 79(3)(b)]. Therefore, if a direction is passed to block information provided by intermediaries like Google Play and App Store (for instance mobile apps), the intermediaries are legally bound to implement the same.

‘Tick-Tok’- Can it be banned?
The demand for banning the app has come from Tamil Nadu especially from the Information Technology Minister. The Minister’s primary allegation against the app is that it hosts and spreads ‘vulgar content’ and ‘sexually explicit material’.  For successfully securing a ban, the Nodal Officer of the state government would have to submit a request to the central government’s designated officer. Thereafter, it will be adjudged whether the App’s functioning falls into the grounds of Section 69A.

In the case of Tick Tok, the ground of ‘for preventing incitement to the commission of any cognizable offence relating to above’ is relevant. The ground as discussed earlier allows blocking as long as access to information can incite any cognizable offence. As per criminal law in India, obscene acts and abetting in such acts are cognizable offences. Therefore, any online platform that promotes the same can be directed to take off such information.

As long as the state government can prove in its representation that Tik-Tok promotes obscene content, it can get the app banned.

Concluding Remarks:

As of late, demands for banning online content and apps has increased by multifold. After Tick-Tok, people are demanding the ban of PUBG, another famous mobile app. Courts have rightly cautioned against this phenomena by urging people to be more tolerant, as a hyper sensitive approach would only result in chaos and disquiet amongst the involved stakeholder. I hope that as citizens we realize that a ban should be a remedy of last resort and not a tool to curb what we consider undesirable.

[1] Registrar v. Secretary to Government, (2017) SCC Online Mad. 25298

[2] The list of cognizable is provided in Schedule I of the Code of Criminal Procedure, 1973.

[3] Rahul v. State of West Bengal, 2018 SCC Online Cal 8940 (India).

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