E-Commerce Litigation And Legal Disputes Would Increase In India Say Legal Experts

White conceptual keyboard - Law symbol (blue key)E-commerce is booming in India but the regulatory environment is not in a position to match its progress. Indian government tried to use the existing provisions of Information Technology Act, 2000 (IT Act 2000) and other Indian laws to regulate e-commerce in India but this exercise has failed. This happened because issues like cyber law due diligence (pdf), internet intermediary liability, e-commerce dispute resolutions, etc were neither appreciated nor made applicable by Indian government to e-commerce entities operating in India.

Even the recent clarification on Foreign Direct Investment (FDI) in E-Commerce Sector of India 2016 has failed to satisfy the doubts of e-commerce businesses in India. We at Perry4Law Organisation (P4LO) has recommended to the government that a dedicated e-commerce law of India is need of the hour and e-commerce websites must be regulated in India by a suitable techno legal framework.

We have also launched two dedicated blogs to help Indian government in general and e-commerce stakeholders in particular. These blogs are titled e-retailing laws in India and e-commerce laws in India. A good techno legal guidance can be taken from these blogs but they are in no situation substitute for a well reasoned and techno legal e-commerce legal consultancy.

Meanwhile, the brick and mortar business community has taken the e-commerce entrepreneurs to Indian courts for violation of Indian laws. They have also complained to the Department of Industrial Policy and Promotion (DIPP) to ensure a level playing field. Commerce and Industry Minister Nirmala Sitharaman has recently told the media that the government has ensured a level playing field between online and offline retail. She informed that what applies to brick and mortar applies to e-commerce too.

We at Perry4Law Organisation (P4LO) believe that this assurance and approach of the DIPP is the “starting point” and not the “end solution” This is so because e-commerce businesses are required to comply with “additional” techno legal compliances that brick and mortar businesses are not required to comply with. In short, e-commerce businesses in India are required to comply with many more techno legal compliances that are presently flouted by them.

Perry4Law Law Firm predicted in the year 2012 that cyber litigations against foreign websites would increase in India. Almost all the famous e-commerce websites in India are presently facing legal actions against them for violating Indian taxation, foreign exchange and cyber laws. This trend is going to increase in near future as India has decided to widen the tax net for foreign companies like Google, Amazon, etc. A software for calculating e-commerce exports has also been developed by Indian government. Nevertheless, legal violations by big e-commerce platforms of India still continues especially for online pharmacies, telemedicine, online gambling, e-health, m-health, internet of things (IoT), etc. Indian government in general and DIPP in particular must take e-commerce related violations very seriously while allowing them to grow as much as possible.

Now other legal experts have endorsed the view point of Perry4Law and they have agreed that it could be a bumpy ride ahead for online e-commerce companies in India, as litigation in this space could go up.They are blaming the recent FDI guidelines for the same but this is just part of the picture. They have missed the techno legal compliance part completely that is more troublesome than the FDI guidelines.

There is a rise in the number of cases where offline retailers, trade associations and even e-commerce entrepreneurs are approaching the courts, asking for intervention of agencies such as Competition Commission of India (CCI) and the Enforcement Directorate (ED). Sp serious is the situation that e-commerce companies have started strengthening their legal departments in the backdrop of the current volatile e-commerce business environment. Many are not conformable with the expression “indirectly influencing the price” under the recent FDI guidelines. The guidelines have prescribed that no e-commerce marketplace platform must directly or indirectly influence the price of products sold on the platform. This has made the e-commerce companies in India nervous. Another area of concern pertains to interpretation of the two business models i.e. marketplace model and inventory based model .

A few weeks earlier, traders’ body CAIT filed a complaint with DIPP, alleging violation of FDI norms for e-commerce by online retail major Flipkart. The complaint was in reference to an advertisement in newspapers announcing the sale of an item, together with its discounted price, to be available on the e-commerce platform of Flipkart, a marketplace. CAIT says the advertisement violates the guidelines for FDI in e-commerce. Organisations such as the All India Vendors Association (AIOVA) has also taken on companies such as Paytm using micro blogging social media network Twitter.

It asked DIPP to clarify if the practice of giving cash-backs by Paytm above the seller-funded discount was within the purview of the FDI guidelines on the segment. DIPP replied, through a tweet, that the choice was with the seller. “Giving a discount or not is a prerogative of the seller owning inventory. FDI is permitted in marketplace, not in inventory-based model,” it said.

There is also fear of increased scrutiny from agencies such as CCI and ED, given the increased regulatory push on the e-commerce sector. Chances are that these agencies would work closely with their counterparts monitoring tax and exchange control aspects to check companies flouting the norms while conducting e-commerce business.

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Bitcoin Use, Websites And Businesses Can Be Legal In India If They Comply With Techno Legal Compliances

The legality of bitcoin in India is still a grey area as there is no dedicated law to deal with the same. Different stakeholders have interpreted this vacuum differently. Bitcoin entrepreneurs believe that dealing in bitcoin in India is permissible whereas law enforcement agencies and statutory authorities have considered bitcoin as suspicious so far.

Legal authorities and lawyers are also divided on the fate and legal status of bitcoin in India. Some believe that use of bitcoin is legal in India whereas other have argued that use of bitcoin is illegal in India. Both arguments have their own weaknesses and strengths. However, neither legal argument has brought the true picture so far.

We at Perry4Law Law Firm have tried to bring some certainty in this uncertain environment. We believe that bitcoin use, websites and businesses can be legal in India if they comply with techno legal compliances as prescribed by different laws of India. Anything short of this techno legal compliance on the part of bitcoin community would mean a criminal prosecution. Unfortunately, bitcoin stakeholders in India are not at all aware of techno legal compliances.

A cursory analysis of some of the known bitcoin websites in India proved this point. The bitcoin websites have miserably failed to comply with techno legal requirements of Information Technology Act, 2000 and the rules prescribed under the same. Other Indian laws, especially those pertaining to foreign exchange and taxation, are also not complied with by these websites.

The position maintained by us is applicable so long there is no dedicated law governing use of bitcoin in India. The moment such a law is formulated, the legality of bitcoin and their use must be analysed keeping in mind the specific provisions of such law. However, there is very dim possibility that the Reserve Bank of India (RBI) and Indian government would undertake a legislative exercise to regulate bitcoin in India in the near future.

Naturally, the only choice before the bitcoin community is to comply with techno legal compliances. At the same time it is imperative on the part of law enforcement agencies, regulatory authorities and Indian government to ascertain whether bitcoin have been used for anti national and illegal purposes or not.

Perry4Law recommends that a committee must be established by RBI and central government to analyse the business model and commercial activities of bitcoin websites in India. Those found to be complying with existing Indian laws must be encouraged and those violating the same must be punished. However, the approach of keeping the eyes closed is no more appropriate for RBI and central government.

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Telemedicine And Online Pharmacies Laws Must Be Complied With By Businesses And Entrepreneurs Of India

Technology entrepreneurs and business houses are betting high on e-health, m-health, online pharmacies and telemedicine related business ventures. India government is also trying to streamline the regulatory environment in this regard but it has still to do lots of work in this regard. For instance, the Electronic Health Record (EHR) Standards of India have been prescribed and establishment of a National E-Health Authority (NeHA) of India has also been proposed. However, no dedicated laws for e-health/m-health, telemedicine, online pharmacies, etc have been formulated by Indian government so far.

Information and communication technology (ICT) is proving a useful tool in all spheres of our day to day lives. This also applies to the healthcare sector of India. Medical practitioners and hospitals have started using ICT to effectively manage their medical services. However, there is a problem with this growing use of ICT by medical practitioners and hospitals. In their zest to use ICT for furthering their medical objectives, these medical practitioners and hospitals are flouting Indian laws. Simply putting we have no dedicated telemedicine laws in India and online pharmacies laws in India. However, different laws of India govern the telemedicine and online pharmacies aspects in India.

As on date the online pharmacies in India are violating Indian laws and Indian government is well aware of these violations. In fact, online pharmacies websites of India are under regulatory scanner and punishment may follow. Despite contrary beliefs, online sales of prescribed medicines in India cannot be done through a mere opening of website. The growing craze of e-commerce among Indian medical entrepreneurs has witnessed a spurt of many online pharmacies and telemedicine operations in India. However, most of them are violating the laws of India and some of these laws prescribe very serious punishment for these violations.

While we have basic level e-commerce legal framework in India yet e-health related legal framework is missing. For instance, e-health in India is facing legal roadblocks. Till now we do not have any dedicated e-health laws and regulations in India. The legal enablement of e-health in India is urgently required.

When technology is used for medical purposes, it gives rise to medico legal and techno legal issues. In United States, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Health Information Technology for Economic and Clinical Health Act (HITECH Act), etc are some of the laws that take care of medico legal and techno legal issues of e-health and telemedicine. As far as India is concerned, we have no dedicated e-health and telemedicine laws in India. Even essential attributes of these laws like privacy protection, data protection, data security, cyber security, confidentiality maintenance, etc are not governed by much needed dedicated laws. Time has come to enact a dedicated law that allows online sales and purchase of prescribed drugs and medicines in India.

There is a tendency among medical e-commerce players in India to ignore Indian laws. The Walmart probe , banned drugs regulation in India , e-trading of medicines, digital communication channels , etc have proved that Indian laws must not be taken lightly. Similarly, many telemedicine and online pharmacies initiatives in India rely upon cloud computing without knowing and following the legal and regulatory issues of cloud computing in India. Those engaged in telemedicine and online pharmacies must keep in mind the legal requirements prescribed by Indian laws like Information Technology Act 2000, Drugs and Cosmetics Act, Indian Medical council Act, Code of Ethics Regulations 2002, etc.

The biggest mistake that most of the telemedicine and online pharmacies initiatives in India commit is by believing that offline medico legal requirements can be safely used for online requirements. This is not true and is a fatal misconception as it may bring legal consequences and liabilities.

Online dealings of medicines and healthcare services have their own set of problems and legalities and they must be fully complied with to do an online business. Selling medicines online and providing of online healthcare services in India is not like selling other day to day commodities and they have grave risks attached with their very dealings. Great precautions and absolute compliance with the laws of India is required for their online operations.

The ultimate call is for Indian government to take as it has failed to regulate this much needed field so far. Not only Indian government failed to make dedicated laws in this regard but it has also failed to take stringent action against those who are running illegal online pharmacies and telemedicine shops in India.

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US And Europe Are Enacting Laws To Protect Trade Secrets Of Businesses And Companies

Trade secrets are integral part of intellectual property of an organisation and they must be protected to the maximum possible extent. At times companies and business houses do not prefer to make their methods and strategy public and these methods and strategies are protected as trade secrets. Business houses have to make a trade off between protection of intellectual property rights like patents, trademark, copyright on the one hand and strategic advantage of the highly personal and advantageous information and knowledge on the other hand. It is not always beneficial to make your invention, method or business model public and get intellectual property protection for the same.

Companies and business houses that prefer to maintain trade secrets as an intellectual property have to go to great extents to protect their trade secrets. These days cyber criminals are targeting trade secrets of big organisations and business houses as a stolen trade mark can be sold at great price in national and international market. Cyber espionage has also significantly increased world over to steal trade secrets and intellectual property rights of big companies.

For instance, in the past Japanese company Kawasaki Heavy Industries (KHI) accused Chinese Company CSR Sifang of stealing its Shinkansen Bullet Trains. Japan had also alleged that technology and information from local companies, including chipmaker Toshiba, had been leaked to rivals from other countries. Japan has decided to fight against growing incidences of industrial cyber espionage. United States has also decided in the year 2013 to introduce a legislation that would target companies using stolen IPRs of U.S. Now in the year 2016 US has finally given a shape to a legislation that would protect trade secrets of US companies. Europe has also formulated a trade secret legislation to protect trade secrets of its member nations.

However, there are many techno legal challenges that nations and big companies need to address. Firstly, we need to address the problem of conflict of laws in cyberspace that is resulting in applicability of different laws for different situations. For instance, the recently expanded Rule 41 of US Federal Rules of Criminal Procedure is not binding upon India and other countries. This modified rule would not only violate the civil liberties and cyber laws of different countries but would also force other countries to speed up cyber warfare and cyber espionage race. Naturally, intellectual property rights and trade secrets would be on the receiving end.

Secondly, international legal issues of cyber attacks and cyber security are still required to be managed. Proving a cyber crime that involves multiple jurisdictions is a tedious task and it cannot be proved with certainty in all cases. Mutual cooperation and Mutual Legal Assistance Treaty (MLAT) are not helpful in most cyber crime cases having international ramifications. It is very important to resolve the authorship attribution dilemma so that guilt for a cyber crime can be imputed to a particular individual, nation or organisation.

Thirdly, cyber security issues are not easy to manage. Present day malware are defeating cyber security products with ease. There is little cyber security available to e-commerce companies and websites in different jurisdictions. In many jurisdictions, including India, cyber security breach disclosure norms are still missing. Thus, if an organisation or company is targeted for cyber attack and its systems are breaches, most of the times such organisation would not report such incidence to the government.

It is good that countries are working in the direction of protection of trade secrets but techno legal issues of trade secret laws cannot be ignored by them.

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US Is Pushing Other Nations Towards Cyber Warfare And Cyber Espionage Race

Cyber security field is a continuous battle field where malware and cyber security products are pitted against each other in an incessant manner. This fight is made more complicated due to absence of uniform international legal issues of cyber security on the one hand and continuous violation of civil liberties on the other. As on date we are facing complicated conflict of laws in cyberspace as far as fields like cyber law and cyber security are concerned.

Take the example of recent expansion of Rule 41 by the US Supreme Court that has conferred a long arm jurisdictions upon US courts regarding cyber crimes. Obviously, the trans border hacking and search activities of FBI would violate civil liberties and cyber laws of different nations. This would also speed up the cyber race among the nations as cyber warfare and cyber espionage activities are going to increase with an inevitable use of malware and zero day vulnerabilities.

India is a blind follower of US when it comes to cyber law, cyber security, e-surveillance and spying. This is done without any background analysis and a model suitable for US is blindly applied to Indian conditions. Obviously, this would bring negative effect upon the Indian business community as well as netizen’s rights.

India’s blind reliance upon foreign technology, especially foreign encryption and cyber security technologies, has made it vulnerable to various forms on arm twisting. For instance, India has recently opposed the idea to include cyber security technology under the Wassenaar Arrangement as this would limit the access of India to cyber security technologies. US is also pushing for formulating trade rules at WTO for e-commerce and cloud computing. It seems US is more guided by its own political and national interests that are in clear conflict with other nations interests.

As on date we have no universal cyber law and cyber security (PDF) treaties at the global level. All nations are free to regulate their physical territories and cyberspace as per their own interests. As far as cyber warfare is concerned, some academic but non binding guidance can be found in the form of Tallinn Manual. But the same is for reference only and countries are free to ignore the same in case they are faced with conflicting interests.

Meanwhile, US is pushing its own agenda world over. While it keeps on blaming countries like China for cyber aggression yet its own initiatives are far more dangerous. For instance, it is believed that the Stuxnet malware was created by US. Similarly, it is well known that US is the biggest buyer of malware in the world. It is also within public domain that US is targeting netizens across the globe for e-surveillance and cyber attacks. Kaspersky has also revealed that hardware based stealth spyware were used by US intelligence agencies besides the radio waves. These negative developments have also forced Indian intelligence agencies to demand for legal immunity against cyber deterrent acts.

It seems US is creating cyber nuisance to such an uncontrolled and unlimited extent that it cannot manage the same for decades in future. US is also forcing the countries to engage in blatant cyber warfare, cyber espionage and cyber race. Cyber security must not be handled the way US is handling it. Instead of suppressing civil liberties, encryption and anonymity, we must concentrate upon better security products and services, unbreakable encryption methods, more secure and private Internet communications, better cyber law and cyber security laws and so on. This seems to be a distant dream as on date and private technology companies have a great role to ensure that Internet is not collapsed and compromised by Orwellian and draconian cyber controls by various nations, especially the US and India.

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NRIs Wish To Use Video Conferencing For Legal Procedures, Lawsuits And Various Certificates

Information and communication technology (ICT) can strengthen the legal and judicial system of India to a great extent. It can also help in reducing backlog of cases, increasing the efficiency and bringing transparency in legal and judicial functioning. Two prominent examples of use of ICT for Indian legal and judicial systems are establishment of e-courts in India and use of online dispute resolution (ODR) for resolving various disputes, including those pertaining to e-commerce.

Similarly, technology can be used for providing statements and evidence through video conferencing, sending of legal notices, sending of bail orders, etc. An increased use of video conferencing for commercial, legal and personal reasons is also a good example of use of technology.

If we analyse the recent trend, an increased number of Non-Resident Indians (NRIs), citizens of Indian origin and non residents are increasingly relying upon video conferencing for complying with legal procedures applicable in India and other jurisdictions, lawsuits and various forms of statutory certificates.

Recently, the passport of business tycoon Vijay Mallya was revoked by Indian government. Now he plans to approach the High Court to challenge such revocation and he has also shown his willingness to be questioned through video conference, an offer that the Enforcement Directorate turned down. Similarly, Non-Resident Indians (NRIs), who are involved in various litigations in India, have requested the authorities to record their statements through video conferencing. The NRIs are of the opinion that video conferencing is a cost-effective measure, as they do not have to fly down to India for recording their statements. Besides, it will also spare them other botheration such as shuttling from one office to another and fear of being implicated in a false case.

After a UK-based woman, who had levelled rape charges against Indian Hockey team Captain Sardar Singh, told the police that she would be available to record her statement through video conferencing, another Canadian NRI woman has requested the city police that she would join investigation through videoconferencing.

We at Perry4Law Organisation (P4LO) strongly recommend that video conferencing laws, regulations and guidelines are urgently needed in India. This would help in a proper handling of various online matters that require a techno legal orientation. Indian government is pushing digital India project that would also require e-delivery of services in India that would include video conferencing facilities and legal framework for the same as well.

Presently, physical presence of the applicant is the rule in India and testimony through video conferencing is the exception. This may remain so for some more time except for selective few services and legal areas where video conferencing is specifically allowed. Nevertheless, few good steps in this regard have already been taken in India. P4LO hopes that Indian government would consider these aspects with all urgency and sincerity.

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Malware Attacks Would Increase In The Year 2016

This is the updated article of our previous blog post titled “Malware Nuisance Would Increase In 2016“. In the present cyber security environment, malware have emerged as undefeatable and uncontrollable. Cyber security product and services providers have no other option left but to innovate so that sophisticated malware can be detected at the earliest stage.

Cyber criminals have unlimited resources at their disposal these days. Many of them are even supported by state actors and this allows them to make customised malware that cannot be detected and eliminated by traditional anti virus and security products. As a result the contemporary cyber security products and services are ineffective in preventing such malware from causing damage.

World has already faced sophisticated malware like Stuxnet, Duqu, Flame, Uroburos/Snake, Blackshades, FinFisher, Gameover Zeus (GOZ), etc. These malware were unique as they were detected much after they infected the targeted systems. Some of these systems remained infected for many years and this facilitated targeted cyber espionage and customised infection of these systems.

The financial sector has its own share of cyber security problems and challenges. Malware targeting financial sector are also in circulation for long. These include Carbanak, Vskimmer Trojan, Malware Dump Memory Grabber, etc that cause tremendous financial loss world over. It is not just the financial loss but also loss of faith and goodwill that banks and other financial institutions have to face.

Perry4Law Organisation (P4LO) has provided the “Cyber Security Trends In India 2016” that have predicted that use of botnet and malware would increase in the year 2016. The trends has also predicted that critical infrastructure, cloud computing and e-health would also be on the receiving end. We have already witnessed an increased use of ransomware and malware for targeting hospitals and health industry. Similarly, big corporations are also frequently targeted and their data are encrypted by the cyber criminals. This data is then decrypted only after the ransom is paid by the corporation to the cyber criminal.

The year 2016 would witness an increased use of malware for various purposes like cyber terrorism, cyber warfare and cyber espionage. It is for us to develop both offensive and defensive cyber security capabilities and a robust cyber security infrastructure so that the impact of these malware can be minimised if not eliminated.

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Indian Online Rummy And Online Poker Websites In Legal Tangles

Online games like online poker, online rummy, online card games, etc are increasingly becoming popular in India. However, the regulatory environment for these online games is still in a state of mess. So bad is the position that even the traditional and offline rummy and poker games are still considered gambling by many States in India. Police and other authorities are still trying to ascertain how to manage offline rummy and poker games in various States. As far as online poker, online rummy, online card games, etc are concerned, law enforcement agencies of India are clueless as to their legality or illegality. In short, online poker, online rummy, online card games, etc are in a state of limbo and uncertainty.

To clear this legal uncertainty, many online games providers approached the Supreme Court while it was dealing one of the cases pertaining to offline rummy. Obviously, that was a premature attempt on the part of these online games providers as not only the matter pertained to a particular party but also the matter relates to offline rummy in a particular State. However, online games providers were hoping that the Supreme Court would clear the mist of uncertainty in this regard. This was a mistaken notion as decision of the Supreme Court on the facts and circumstances of a particular case cannot be decisive for online games providers in India. Even otherwise, they have no locus standi to approach the Supreme Court in the present circumstances.

The Supreme Court realising this situation asked the Central Government to clarify it stand on the legality of online games in India. However, Central Government was not keen enough to do this exercise and it gave no opinion to the Supreme Court on this regard. Faced with the techno legal issues involved in adjudication of the legality or illegality of online card games, the Supreme Court of India held that it would not decide the legality or illegality of online poker, online rummy, online card games, etc. However, a decision about offline rummy is expected from the Supreme Court next week but that would have no bearing upon the legality or illegality of online poker, online rummy, online card games, etc.

Now the providers of online poker, online rummy, online card games, etc must satisfy the twin requirements of Indian laws. Firstly, they have to prove that online poker, online rummy, online card games, etc are games of skills and not chance. This they cannot prove till there is an authoritative pronouncement from the Supreme Court in this regard. Till that time they would be vulnerable to various forms of legal actions and sanctions as their acts maybe considered to be acts of gambling by various law enforcement agencies of India. Any authoritative pronouncement form the Supreme Court regarding legality or illegality of online poker, online rummy, online card games, etc is ruled out for another decade in the present circumstances and till that time these online games providers would be in a legally vulnerable position.

Secondly, even if online poker, online rummy, online card games, etc are presumed to be games of skills, still they are required to comply with techno legal requirements. There are hardly one or two online card games providers that are complying with these techno legal requirements. Most of the providers of online poker, online rummy, online card games, etc are openly flouting the laws of India especially the techno legal obligations and cyber law due diligence (PDF) requirements. Now as the Supreme Court has refused to decide about the legality or illegality of running websites of online poker, online rummy, online card games, etc, it is imperative that they comply with various techno legal laws of India in this regard. The argument of games of skills is not relevant when it comes to compliance with laws of India.

Online card games stakeholders must not be misguided by the misleading and incorrect media reports about the order of the Supreme Court. Nowhere the Supreme Court has held that of online poker, online rummy, online card games, etc are legal in India. On the contrary, Supreme Court has categorically held that it is not going to decide about the legality or illegality of these websites of online poker, online rummy, online card games, etc. In short, the websites of online poker, online rummy, online card games, etc are operating at their own risks and so are the players who play at these websites.

The only hope of websites running online poker, online rummy, online card games, etc is that the Central Government formulates techno legal framework that can accommodate online games and other Internet related aspects. That is a long and time consuming process and it cannot be expected for a long period of time. Thus, all online games provider must immediately draft their terms and conditions and other legal documents in conformity with the laws of India, especially the Information Technology Act, 2000. Those who have already put at place basic terms and conditions must revisit them and make them in compliance with the present legal requirements.

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Social Networking Laws In India Need Clarity And Codification

Social networking websites have a very crucial role to play in fields like business and commerce, personal relationships, leisure activities, political usages, speech and expression, etc. This is the reason why social media websites like Facebook, Twitter, LinkedIn, etc are very popular world over.

India has also a significant population that is attached to various social media or social networking websites. This has given rise to unique law enforcement and regulatory challenges before the countries around the world. While the United States has the advantage in the sense that most of these social networking websites are located within the legal and territorial limits of US authorities yet law enforcement authorities of India and other countries find it really difficult to manage law enforcement related activities arising due to abuse of these social networking websites.

The conflict of laws in cyberspace has further widened the law enforcement access deficit that India is presently facing. Most of the law enforcement agencies of India openly admit that when the server of a website is located outside India it becomes next to impossible to prosecute a cyber criminal using such a website and committing an offence against Indian citizen.

For instance, Bangalore cyber police is facing investigation difficulties with Facebook and it is well known. Similarly, the Delhi Police was too late to get access to IP address of the accused who hacked the e-mail account of Amrita Rai. It is also well known that most of the social networking websites that are operating in India are not complying with the laws of India.

The Information Technology Act, 2000 (IT Act 2000) is the cyber law of India that governs legal issues pertaining to e-commerce, e-governance, cyber contravention and cyber crimes. However, the cyber law of India is a piecemeal legislation that covers multiple areas and in this attempt it is not covering even a single area effectively. India must either formulate a comprehensive and holistic techno legal framework or it must adopt specific and dedicated laws for various fields. There is no doubt that India needs a new and better cyber law and the old one must be repealed.

It has been suggested that foreign websites and social networking websites must establish servers in India. It has also been suggested that India’s own social networking websites must be established so that compliance with Indian laws can be ensured. As per the amended Indian Companies Act, 2013, the directors of India companies can be held liable for cyber law and cyber security related techno legal compliances. Individuals, companies and their directors are also required to observe cyber law due diligence (PDF) under the IT Act 2000.

India has been using mutual legal assistance treaty (MLAT) to mutually cooperate on law enforcement related issues. However, MLAT is not always successful as the country to whom such a request is issued may deny cooperation if the act committed by the accused is not an offence as per the laws of that country. For instance, in the past US has refused to issue summons upon companies like Facebook, Google, etc citing similar grounds. So the MLAT route is not full proof and it is full of surprises.

Some stakeholders have started using social networking websites for business purposes in such a manner that they violate Indian laws. However, as the servers of these social networking websites are located outside India and are governed by foreign laws, Indian law enforcement agencies are helpless to enforce Indian laws against such stakeholders.

For instance, online pharmacies related legal compliances are absolutely ignored in India by most of the online pharmacies operating from India. As a result Perry4Law has suggested that online pharmacies laws must be enacted by Indian government. Similarly, the online card games websites in India are also in a limbo and they are operating in a legally risky manner. This is more so when social networking websites are used for games like online rummy, online poker and other online card games.

India has no dedicated privacy and data protection (PDF) laws. Indian government is also very committed to violate the civil liberties of Indian citizens in cyberspace. This is the reason why we have no privacy rights in India that can protect the privacy of Indian in cyberspace. Further, e-surveillance tools like Aadhaar have been clubbed with projects like Digital India and this has made the digital India initiative the biggest digital panopticon of human history. The social networking websites provides further data and information to Indian government for data mining purposes and this result in violation of privacy of Indian citizens.

Nevertheless, business and other stakeholders are required to comply with applicable privacy, data protection, cyber law and other laws applicable to their respective fields. One of the requirements that is applicable to all stakeholders including e-commerce players pertain to observation of cyber law due diligence (PDF). Similarly, e-commerce laws in India are also required to be adhered to by various stakeholders. Since the stakeholders are also using the platform of foreign companies, they are also subject to the laws of foreign jurisdictions as well. Thus, there is no significant benefit of hosting a website on a foreign server if the law enforcement agencies of India are committed to punish an offender.

Perry4Law Organisation (P4LO) hopes that this article would help various stakeholders in sensibly using the social networking websites so that they remain on the right side of the law. At the same time P4LO also believes that very soon social networking related laws and regulations would be clearly enacted by the Indian government for the larger benefit of all stakeholders.

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Guidelines On Protection Of Good Samaritan While Saving Lives Of Road Accident Victims (2015)

Protection of lives of road accident victims is possible to the maximum possible extent only if good people come forward to take them to hospitals. A timely first aid and early access to medical facilities is sine quo non for lesser mortality rates.

Supreme Court of India addressed this issue and other related ones in Savelife Foundation & Anr v. Union of India & Anr, Writ Petition (Civil) No(s). 235 Of 2012 (SC) (PDF). A Committee was constituted by the Supreme Court and one of the points of reference was incorporated into clause (x) which reads as follows:

(x) Deliberate and develop a set of guidelines for protecting Good Samaritans from police harassment and legal hassles. The guidelines will aim to address the root causes for fear of harassment and legal hassles in general public regarding helping injured victims. These guidelines will also serve as a foundation for further legislative work in the area of protecting Good Samaritans.

In a welcome move, the Narendra Modi led Government has issued Guidelines on Protection of Good Samaritan While Saving Lives of Road Accident Victims (2015) (PDF). This shows the sensitivity of Indian Government towards the precious lives that can be saved if road accident victims can be taken to hospitals as soon as possible.

Although there is no dearth of good people to take accident victims to the hospitals yet legal formalities and legal hassles have forced many not to take the much needed actions. Now with these guidelines it can be hoped that more precious lives would be saved.

Perry4Law organisation (P4LO) welcomes this move of Indian Government and hopes that more such constructive and pro active initiatives would be taken by the Indian Government in near future.

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