Selective Banning of OTT Apps: Balancing Development and Freedom

Addressing the nation on the 77th Independence Day, Prime Minister Narendra Modi reaffirmed the central role of ‘Digital India‘ in the country’s journey towards becoming a developed nation by 2047. This vision hinges on the presence of ubiquitous, affordable, secure, resilient, and uninterrupted internet access. The profound surge in digital payments in recent years and the pivotal role played by the digital ecosystem during the pandemic underscore the importance of the internet in achieving our developmental aspirations. Moreover, with user-friendly applications emerging in fields like artificial intelligence, quantum computing, extended reality, and Web3, the momentum toward a digital future is only set to increase.

The Issue of Selective Banning of OTT Apps

The concept of selective banning, as raised by the Telecom Regulatory Authority of India (TRAI) in its July 2023 consultation paper on ‘Regulatory Mechanism for Over-The-Top (OTT) Communication Services, and Selective Banning of OTT Services,’ revolves around the idea of temporarily blocking specific OTT services in certain regions or during times of public unrest or disorder.

Blocking any website, URL, or app imposes significant constraints on fundamental rights, including the right to freedom of speech and the right to trade. As the Supreme Court has previously noted in the Anuradha Bhasin case, these rights extend to the internet. Therefore, any order for selective blocking must meet the Supreme Court’s triple test of lawfulness, necessity, and proportionality to be considered a ‘reasonable restriction‘ under Article 19(2) of the Constitution.

The ‘proportionality principle‘ allows the state to restrict a fundamental right to achieve a legitimate goal, but it must do so in a minimal and least restrictive manner. Selective banning not only infringes upon certain fundamental rights but also raises doubts about whether it constitutes a ‘minimal’ restriction and whether less restrictive alternatives exist.

Technical Infeasibility and Unintended Consequences

Beyond the constitutional and legal concerns, there are significant technical and practical challenges associated with selective banning, whether implemented by an OTT provider or a telecom service provider (TSP). When an OTT provider seeks to selectively ban its services in specific geographies, it must track the ‘live location‘ of all its users to enforce the restriction. This process raises serious privacy and security concerns. Even with the recent enactment of the Digital Personal Data Protection Act, 2023, data collection is typically subject to user consent and heightened notice requirements.

On the other hand, TSPs can theoretically block OTT services hosted on specific IP addresses. However, OTT service providers often use dynamic IP addresses to thwart cyber-attacks, and multiple apps or services may share a single IP. Blocking a specific IP address could inadvertently block other legitimate apps using the same IP.

Deep Packet Inspection (DPI), a potential method for blocking by Telecom Service Providers (TSPs), raises concerns about privacy and freedom of speech. DPI involves inspecting the content of data packets, which could compromise user privacy and even national security.

Selective banning can inadvertently contribute to the spread of disinformation and misinformation. If the affected populace loses access to familiar apps, they may turn to alternative sources, potentially worsening the prevailing or imminent ‘public emergency’ that the selective banning order intended to address.

Selective banning could severely disrupt commercial operations, particularly for micro, small, and medium-sized enterprises (MSMEs), which play a vital role in the economy. Many MSMEs rely on OTT apps for various aspects of their business, including orders, logistics, taxation, and payments. Disrupting access to these apps could have far-reaching economic consequences.

Ineffectiveness Against Malicious Actors

Selective banning may not be an effective strategy for countering malicious actors during times of public unrest. Such actors can use proxy servers or virtual private networks to access banned apps. They may also turn to obscure copycat versions of popular apps that lack a local presence and compliance with regulations. In contrast, established OTT apps are more likely to comply with the law as intermediaries or significant social media intermediaries under the Information Technology Act, 2000 (IT Act).

A More Balanced Approach

Given the numerous challenges associated with selective banning, there is a growing need for a more balanced and nuanced approach that favors minimal intervention while addressing the concerns that trigger selective banning orders.

Instead of selectively banning entire apps or services, the government could issue blocking orders under Section 69A of the IT Act. These orders could direct OTT services to remove specific pieces of content from their platforms or, if necessary, block entire OTT platforms that deliberately fail to comply with the country’s laws.

Analogously, this approach resembles filtering specific pathogens instead of indiscriminately choking the water supply in a particular area. It allows for targeted responses to content or behavior that poses a genuine threat while minimizing the impact on the broader digital ecosystem.

In conclusion, the issue of selective banning of OTT apps presents a multifaceted challenge. While it is crucial to address concerns related to public safety and national security, a balanced approach is essential. This involves carefully considering the constitutional, technical, and unintended consequences associated with selective banning and exploring alternative solutions that protect both development goals and fundamental freedoms. Striking this balance is crucial for India’s journey towards a digitally empowered future.

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