22 Apr 2012

Google Facing Conflict Of Laws Problems With US And India

Conflicts of laws, Indian cyberspace and Google have become synonymous these days. Further, the position of US companies, India, conflict of laws and criminal liabilities has also become clear these days. This is so as of late many civil and criminal cases have been filed against foreign companies and social media websites.

However, this is just the beginning as cyber litigations and disputes that are going to increase in India. With this cases of overlapping jurisdictions would also arise. Take the example of recent case where the Gmail id of an Indian was involved. While the US court allowed access to the same yet Indian court granted an inunctions against disclosure of its password and information stored in the account.

The Plaintiff in this case argued that as an India citizen he had a right to privacy under the Indian Constitution and that the defendants could not violate his right. The order was passed ex-parte against an American law firm and Google’s e-mail id that sent the communication pertaining to US court’s order.

Interestingly, the litigation before the US/California court pertains to a dispute between two other parties and it appears that Plaintiff’s Gmail id may hold evidence relevant to resolve dispute between these parties. The normal practice to seek evidence in these cases is to issue “letters rogatory”, under the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters requesting the India to assist in the collection of evidence. Such letters rogatory can be enforced, in India, only by High Courts, as per the Code of Civil Procedure, 1908.

It seems the US court did not consider it necessary to adopt that procedure. This may be so because Google is a US based company over which US courts have primary jurisdiction. In fact, the terms of service of Google clearly stipulates that all Gmail users consent to be governed by the laws of the U.S. Google’s operation is global in nature and it is required to comply with the laws of various jurisdictions, including India.

To confer jurisdiction upon Indian courts, the Plaintiff argued that the cause of action in the present suit arose in India when the Plaintiff created his Gmail id account in Vishakhapatnam and also when he received the legal notice in Vishakhapatnam. Let us see how the case would proceed in this regard.