29 Feb 2012

E-Commerce Dispute Resolution In India

Electronic commerce brings both comforts and discomforts to its users. The comforts include on the spot sales and purchase, competitive costs, convenience, saving of time, etc. The discomforts include frauds and cyber crimes committed against e-commerce users. At times there are disagreements and dissatisfactions as well among buyers and purchasers that cannot be resolved using traditional litigation methods.

This is the reason why we need alternative dispute resolution (ADR) mechanism to resolve e-commerce disputes in India. E-commerce regulations and laws in India are limited in nature and this does not allow use of ADR mechanisms and technology driven solutions. For instance, while European Union and other nations are increasingly using online dispute resolution (ODR) for resolving many aspects of e-commerce disputes yet online dispute resolution (ODR) in India is still not known.

Similarly, establishment of e-courts in India can also facilitate early and effective e-commerce disputes resolutions in India. However, till February 2012 we are still waiting for the establishment of first e-court in India. E-courts and ODR in India are urgently required to reduce backlog of cases and for reducing increasing pressure upon traditional courts. E-courts and ODR can also help in e-commerce disputes resolutions in India.

Some of the areas where we must pay special attention include technology related dispute resolution in India, film, media and entertainment industry dispute resolution in India, cross border e-commerce dispute resolution in India, etc. E-courts and ODR can be effectively used for all the abovementioned purposes.

E-commerce players in India have many techno legal obligations to follow and cyber law due diligence in India is one such obligation. Not only legal requirements for undertaking e-commerce in India are stringent but even Internet intermediaries liability in India must be taken seriously by companies engaged in online transactions and businesses.

Realising that cyberspace can bring many commercial benefits; both individuals and companies are ensuring that they have strong online presence. More and more brand promotion and protection in India are done these days in an online environment. Companies and individuals are also ensuring domain name protection in India so that their reputation and goodwill is not misappropriated by others. Brand protection, reputation management and domain name cyber squatting disputes are at rise and the same can be resolved using e-courts and ODR in India.

However, there is a general lack of awareness regarding use of e-courts and ODR for e-commerce disputes resolution. Further, there are very few e-commerce lawyers and law firms in India that can provide expert services in this regard. E-commerce players must also be aware that other laws, including intellectual property laws, can make these e-commerce players labile for civil and criminal actions. For instance, these e-commerce players can be held liable for online infringement of copyright in India of the copyright owners. Similarly, if any person posts an offending material at the e-commerce site or otherwise deal with the e-commerce site in an illegal manner, the e-commerce site owner may find himself in trouble.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that before opening an e-commerce website or business, the owner of the same must consult a good techno legal law firm that can advice him upon all the possible and applicable aspect of e-commerce laws in India. Further, Perry4Law and PTLB also recommend active use of e-courts and ODR in India for resolving e-commerce disputes resolutions in India and corporate disputes in India.

We also believe that more effective and useful e-commerce laws in India must be formulated that expressly deal with e-commerce aspects in India. Let us hope that these suggestions would be implemented by Indian government very soon.

27 Feb 2012

Corporate Disputes And Online Dispute Resolution In India

Disputes among corporate stakeholders are very common. For obvious reasons corporates prefer to use alternative dispute resolution (ADR) mechanism instead of traditional litigation route. Traditional litigation is time consuming and expansive whereas ADR mechanisms are effective, economical and speedier in nature.

The corporate agreements of these corporate houses essentially contain an arbitration clause and adoption of arbitration proceeding to resolve various future differences and disputes. The commercial division of high courts Bill 2009 also recognises that commercial disputes involving large stakes must be resolved urgently and in an expeditious manner.

It is high time for big corporate houses to shift to next dispute resolution revolution known as online dispute resolution (ODR) in India. Companies and individuals must give more stress to ADR and ODR services in India as they are more productive than traditional litigation system of India. In fact, having e-courts and ODR in India can solve almost all the legal problems of companies and individuals in India and world wide.

We need to adopt cyber arbitration in India, online arbitration in India and technology arbitration in India. Further, cyber arbitration and mediation centre in India also need to be established. Online commercial arbitration in India also needs to be developed.

Similarly, legal issues of media and entertainment industry of India have assumed tremendous importance. Entertainment and media industry dispute resolution in India can be resolved using online dispute resolution. Dispute prevention and resolution in the film and media industry in India is presently not exploring use of ODR and e-courts.

Similarly, ODR and cross border e-commerce transactions and dispute resolution of cross border technology transactions are also interrelated. Dispute resolution in technology transactions is the upcoming trend in the field of ODR. Dispute resolution of cross border technology transactions is a complicated process if we adopt traditional litigation methods to resolve them. Dispute resolution in technology transactions and dealings requires an effective, timely and cost effective mechanism. Traditional litigation is definitely not the place to achieve these objectives.

Perry4Law and Perry4Law Techno Legal Base (PTLB) suggest that companies and individuals must incorporate suitable “ODR clauses” so that ODR in India can grow. In fact, we are already doing so and are also providing the exclusive techno legal ODR services in India and world wide. We hope very soon ODR and e-courts would be actively used in India for the larger interest of all stakeholders.

12 Feb 2012

ICANN’s New Generic Top-Level Domains (GTLDs) Registration: Risks And Benefits Analysis

The allotment of new generic top level domain names (new GTLDs) by Internet Corporation for Assigned Names and Numbers (ICANN) has been recently approved. Now the process of registration of new GTLDs is in full swing. The new GTLDs application process has started from 12 January 2012 and would end on 29th March 2012. As on 12-02-2012, the applicants have 46 more days to apply for new GTLDs.

While the brand and trademark owners can register their brands and trademarks as the GTLDs yet the entire process is not free from troubles and risks. There would be many unforeseen challenges that would crop up before the applicants. Even the filing of a GTLD application would not be an easy task and would require techno legal expertise.

According to ICANN, the new GTLDs promise to expand the domain name system (DNS) and change the Internet forever. However, ICANN warns that the decision to apply for a new GTLD should not be entered into lightly. This is so because applying to run your own GTLD is not the same as registering a second-level domain name. When you apply for a new GTLD you are applying to run a registry business. You will be responsible for a critical and highly visible piece of Internet infrastructure. This would include legal, administrative, financial and management responsibilities to be fulfilled.

The potential benefits of managing GTLDs include entrepreneurship, increased control, ongoing revenue stream, innovative marketing opportunity, innovative business models, internationalised Domain Names (IDNs), engaging your community, bring together your geographic area, etc.

The potential risks and responsibilities include high investments, possible loss of investment in case of non allotment of applied GTLD, compliance with contractual restrictions, staffing, competition, uncharted territory, etc.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly suggest that this is not a complete list of all the risks. Do not rely on this list alone. You should do your own independent research and consult your own technical, business, and legal experts. This list is provided only as general information to get you started.

The introduction of new GTLDs will affect most organisations. Whether or not you decide to apply for a new GTLD, you should still pay attention to the process. In May 2012, once all the applied-for strings have been posted, you will have an opportunity to object to any that you believe would infringe your legal rights. We would cover the Legal Rights Objections under ICANN's New GTLD scheme separately.

6 Feb 2012

Google And Facebook To Remove Offending Contents Within 15 Days

Companies like Google, Facebook, etc are facing civil and criminal trials in India. In fact, representative of these companies have been asked to personally appear before a criminal court on 13th March 2012. Today a civil court has given 15 more days to companies like Google, Facebook, etc remove objectionable contents form their websites.

The entire issue revolves around Internet intermediaries’ liability in India. Companies like Google, Facebook, etc are Internet intermediaries as per the provisions of Information Technology Act 2000 (IT Act 2000). The IT Act 2000 is the cyber law of India that covers dealings of these companies in cyberspace. If these companies fails to ensure cyber law due diligence in India, they are liable to be prosecuted in India.

Cyber due diligence for companies in India has been ignored for long. However, companies and individuals are now facing legal challenges for ignoring the same. There are certain simple procedures that can be adopted to ensure compliance with Indian laws.

For instance, foreign companies and websites must appoint nodal officers to comply with Indian laws. Similarly, these companies and websites must also formulate an India specific legal strategy to tackle cyber law and intellectual property violation issues more properly.

Perry4Law and Perry4Law Techno Legal Base (PTLB) believe that these companies must ensure compliance with Indian laws in true letter and spirit. The Information Technology (Intermediaries Guidelines) Rules, 2011 of India must be specially taken care of by all Internet intermediaries of India.

Companies like Twitter and Google have already taken initiatives to comply with Indian laws. Twitter has put in place a country specific mechanism to remove offending tweets. Google has also started redirecting Indian bloggers to ***.blogspot.in domains instead of ***.blogspot.com domain. This method would allow Google to remove offending contents pertaining to ***.blogspot.in alone once a valid legal request is made from Indian government or individuals residing in India.

Presently, civil and criminal cases are pending against companies like Google, Facebook, etc before various courts in New Delhi. Before the Delhi High Court, the respondent/complainant of the criminal complaint has placed it final arguments on 02-02-2012 and the petitioner companies would put its final arguments on 14-02-2012.

The civil court of New Delhi would analyse the compliance report of Google, Facebook, etc on 01-03-2012. The 22 firms involved in the case have to submit in writing that they have deleted the content before the next hearing. The criminal trial’s hearing is scheduled on 13th March 2012 where representatives of foreign companies have to be personally present. It seems foreign companies would have a busy month ahead.

5 Feb 2012

Google Incorporation’s Indian Strategy To Counter Legal Disputes

Google is increasingly finding itself involved in various regulatory issues around the globe. Even the Indian shares of legal disputes with Google have increased a lot. Presently, Google is facing a criminal trial in New Delhi and representatives of Google would appear before a Court in New Delhi on 13th March 2012.

In the meantime, a new privacy policy and terms of service (ToS) by Google have also been suggested that would become applicable from 01-03-2012. However, European Union officials have asked Google to put on hold this policy implementation. Only time would tell whether this policy would be implemented or not.

Google has also started redirecting Indian bloggers to ***.blogspot.in domain from the original ***.blogspot.com domain. This way Google can “selectively remove” offending contents in a particular jurisdiction like India and leave the same contents available in other jurisdictions.

Whether it is copyright violation, trademark violation, cyber law infringements or any similar legal issue, Google has been facing many regulatory and legal hurdles. Perry4Law and Perry4Law Techno Legal Base (PTLB) believe that Google has been doing its level best to resolve disputes of various parties though many times disputes are not resolved as per desired expectations. However, Google needs to do something more to avoid future cyber litigations and disputes that are going to increase in India

In order to avoid unnecessary troubles, Google must appoint a nodal officer in India. Further, Google must also keep in mind the privacy rights and laws in India, data protection laws of India, Internet intermediary liability in India and many more such issues.

Perry4Law and PTLB believe that the most important aspect of Google Incorporation’s policy to counter Indian legal disputes is to segregate Indian and non Indian based legal disputes. While dealing with Indian disputes, the Indian team and nodal officer must be pro active. While dealing with disputes involving foreign jurisdictions, Google’s core team may be involved.

Perry4Law and PTLB further believe that legal arguments based upon “subsidiary status” are not good in the long term. Rather, these arguments reflect the “evasive approach” and should be abdicated as soon as possible. Instead a pro active approach must be adopted by Google where legally tenable requests must be entertained immediately and pressure tactics and arm twisting methods should be fought to the maximum possible extent.

Perry4Law and PTLB hope that Google would find these suggestions worth consideration.

Privacy Rights And Laws In India

Privacy rights in India have taken a centre stage in India. From Indian citizens to foreign companies, all are now insisting upon a sound privacy rights regime in India. However, for one reason or other, privacy laws in India have been ignored by Indian government.

Similarly, an exclusive and dedicated data protection law in India is also absent. Absence of proper legal frameworks for privacy and data protection has made the personal information and data of individuals and companies prone to misuse in India.

Telemarketing companies are openly violating privacy of Indians due to lack of proper regulatory regime of India. Spam communications are increasing in India and India has become the premier location to indulge in spam communications.

Privacy rights and data protection rights are essential part of civil liberties protection in cyberspace. With the growing use of information and communication technology (ICT), privacy rights have acquired a very different meaning. It would not be wrong to assume privacy and data protection rights as integral part of human rights protection in cyberspace.

We have no dedicated privacy laws in India and data protection laws in India. The privacy rights in India in the information era are unique in nature that requires a techno legal orientation. The growing use of e-surveillance in India has also necessitated enactment of data privacy laws in India, privacy rights and laws in India and data protection law in India.

At the policy level as well privacy rights and data protection rights have been ignored in India. In fact, an Indian national privacy policy is missing till now. Even legislative efforts in this regard are not adequate in India. A national privacy policy of India is urgently required.

A right to privacy bill of India 2011 has been suggested in the year 2011 yet till now we do not have any conclusive draft in this regard that can be introduced in that parliament of India. In fact, we are still waiting for a public disclosure of final and conclusive proposed draft right to privacy bill 2011 of India that can be discussed in the parliament.

The Supreme Court of India must expand privacy rights in India as that is the need of hour. Fortunately, the issue is already pending before it and there would not be much trouble in formulating a privacy framework for India.

However, the call is for the Indian parliament to take and it must enact sound and effective privacy and data protection laws for India.

Data Protection Laws In India

We have no dedicated data protection laws in India. Data of individuals and companies require both constitutional as well as statutory protection. The constitutional analysis of data protection in India has still not attracted the attention of either Indian individuals/companies nor of Indian government.

The statutory aspects of data protection in India are scattered under various enactments. The Information Technology Act 2000 (IT Act 2000), which is the cyber law of India, also incorporate few provisions regarding data protection in India. However, till now we have no dedicated statutory and constitutional data privacy laws in India and data protection law in India.

Further, we do not have a dedicated privacy law in India as well. Privacy rights in India are still not recognised although the Supreme Court of India has interpreted Article 21 of Indian constitution as the source of privacy rights in India. Just like data protection, provisions pertaining to privacy laws in India are also scattered in various statutory enactments. Privacy rights and laws in India need to be strengthened keeping in mind the privacy rights in India in the information age.

Another related aspect pertains to data security in India. In the absence of proper data protection, privacy rights and cyber security in India, data security in India is also not adequate. Further, we do not have a dedicated cyber security law in India as well.

Perry4Law and Perry4Law Techno Legal Base (PTLB) believe that data protection requirements are essential part of civil liberties protection in cyberspace. With the growing use of information and communication technology (ICT), data protection requirement has become very important. It would not be wrong to assume privacy and data protection rights as integral part of human rights protection in cyberspace.

Perry4Law and PTLB believe that Indian government must formulate different laws for privacy, data protection and data security. The IT Act 2000 has already committed the mistake of incorporating all cyberspace related aspects at a single place. This has resulted in a chaos and we have no effective law for any aspect of cyberspace.

Perry4Law and PTLB suggest that India government must formulate separate laws for issues like privacy, data security and data protection.