Monthly Archives: October 2013

Indian Government Is Taking Google Lightly And Allowing It To Continuously Violate Indian Laws

Indian Government Is Taking Google Lightly And Allowing It To Continuously Violate Indian LawsGoogle has been facing conflict of laws problems in India. While Google is adamant on following the United States laws and polices yet various stakeholders are insisting that Google must adhere to Indian laws as well.

Google has long used the conflict of laws façade and subsidiary argument to evade applicability of Indian laws.  This is natural and there is nothing wrong in taking a legal stand like this. What is not understandable is why Indian government is not taking strict actions against Google and its unregulated services in India.

We take a pride in saying that none is above law and rule of law would prevail in India no matter howsoever high a person or institution may be. However, when it comes to Google, Indian government is not willing to take a tough stand against it. The truth is that technology companies like Google are violating laws of India and Indian government is sleeping over the matter.

The present trend shows that cyber litigations against foreign websites would increase in India. However, neither the cyber law of India nor the Indian government’s attitude is strong enough to make the foreign companies afraid of Indian laws.

While cyber law due diligence for European business would be the new trend yet cyber law due diligence in India is still a matter not known to various technology companies and social media websites.

Companies like Google are also ridiculing the Internet intermediary liability as prescribed by Indian cyber law. They are also deliberately violating Indian laws, including Indian cyber law, and Indian government is looking helplessly in this regard. Indian government must make the commercial operations of foreign companies in India more amenable to Indian laws so that the parent companies located at foreign jurisdictions respect and follow Indian laws as well.

All subsidiary/joint ventures companies in India, especially those dealing in information technology and online environment, must mandatorily establish a server in India. Otherwise, such companies and their websites should not be allowed to operate in India. A stringent liability for Indian subsidiaries dealing in information technology and online environment must be established by laws of India. More stringent online advertisement and e-commerce provisions must be formulated for Indian subsidiary companies and their websites.

The matters touching these aspects have already reached the High Court and Supreme Court levels and if Indian government still remains indifferent towards these issues, suitable directions from our Constitutional courts would be much desirable.

E-Surveillance, Civil Liberties Protection In Cyberspace And Conflict Of Laws

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBNational Security is a “Vague and Misguided Concept” and under the “Guise of National Security”, the Civil Liberties of Citizens is violated World over, including India. As more and more Technology is being used by Citizens and Netizens, the Law Enforcement Agencies and other Government Agencies have started “Targeting” the Online Dealings of various Netizens.

In almost all of these cases, the Civil Liberties in Cyberspace are violated “Without any Judicial Scrutiny and Legal Framework”. Whether it is United States, United Kingdom, India or any other Country, Intelligence and Security Agencies are openly violating various Constitutional and Human Rights in Cyberspace.

Civil Liberties like Privacy, Free Speech, Right to Know, Right to Share Information, etc are at “Serious Peril” of being compromised forever if immediate steps are not taken right now. None would suggest that Privacy should be given prominence over National Security but at the same some none would say that Privacy Rights and other Civil Liberties can be compromised and infringed for the sake of some “Presumed and Artificial National Security Requirements”.

A “Balance” must be maintained between Civil Liberties and National Security Requirements and they must be “Reconciled” to have the best results. If we give unnecessary importance to either Privacy or National Security, the end result would be “Counter Productive” in the long run.

As on date we have no “Globally Acceptable” Cyber Law Treaty, Cyber Security Treaty and Civil Liberties Protection Treaty for Cyberspace. As a result we have no protection at the International Level against Cyber Crimes, Cyber Attacks, Cyber Espionage, Cyber Terrorism, E-Surveillance, Cyber Warfare, etc. Even the Tallinn Manual on the International Law applicable to International Cyber Warfare is not an Internationally Acceptable Legal Framework. As such it is “Not Binding” upon other Countries and they are free to not to follow the same and its Principles.

Among the respective National Legal Frameworks as well there is neither a “Harmony” nor “Accountability” for violation of Civil Liberties in Cyberspace. Intelligence and Security Agencies are operating without “Parliamentary Oversight”. In Countries like U.S., U.K., India, etc, Intelligence Agencies are either operating “Without a Law” or in “Clear Violation of Constitutional Norms”.

Further, “Surveillance Mechanisms” have been adopted and used to indulge in “Illegal E-Surveillance” World over. E-Surveillance in India has crossed all the “Procedural Safeguards Limits” and these E-Surveillance activities are violating both Constitutional Provisions and Civil Liberties in Cyberspace.

We have “Grossly Offensive” Projects like Aadhaar, Central Monitoring System, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and System (CCTNS), etc without any “Parliamentary Oversight” and “Legal Framework”.

In India there is “No Requirement” to obtain a Court Warrant to engage in E-Surveillance and Eavesdropping. Further, with the introduction of Central Monitoring System of India, the scope for “Judicial Intervention” has been absolutely ruled out. The present position reiterates that when Rights are outlawed only outlaws would have Rights. Similarly, the present Cyberspace environment has also proved that Self Defence in Indian Cyberspace and Internet is need of the hour.

The Conflict of Laws Scenario in Indian Cyberspace has reached a stage where immediate Government action is required. India must ensure Techno Legal Measures to Regulated Indian Cyberspace so that both National Security and Civil Liberties can be respected and protected equally.

Strict Laws against Technology Companies and Social Networking Websites like Google, Facebook, etc must also be framed in India so that they can be forced to comply with Indian Laws.

International E-Surveillance Exercises targeted against India and its Citizens must be rebuked and strongly taken care of by India especially when the Intelligence Agencies are “Targeting Foreign Nationals”, including Indian Nationals.

Online Gambling And Gaming Laws And Regulations In India And Conflict Principles

Online Gambling And Gaming Laws And Regulations In India And Conflict PrinciplesOnline gambling and gaming is fast catching the eyes of entrepreneurs and players alike. We have been frequently approached regarding ascertaining the legality of online gambling and gaming in India. As on date, we have no dedicated online gambling and gaming laws in India. However, keeping in mind the importance of this area there must be dedicated online gambling and gaming laws and regulations in India so that this area is properly regulated and chances of e-commerce frauds and cyber crimes can be minimised.

Recently, it was decided that an anti match fixing law would be formulated for India. This decision was taken due to growing cases of match fixing in series like IPL. We also need to regulate online gambling and gaming activities in India so that no stakeholder is found on the wrong side of the law.

Online gambling and gaming is essentially an international phenomenon as the website may be registered in the name of a person residing in country A, the server hosting the website may be located in country B and the players could be located in multiple countries.

Similarly, the software and application providers may also be involved in legal hassles due to the supply of their products and services in India. For instance, forensics analysis of Nokia’s computers used to download software in India is presently undertaken by Indian tax authorities to investigate violation of income tax and transfer pricing provisions of India.

In short, online gambling and gaming may be legal in one country whereas it may be illegal in another. The country where it is illegal may prosecute the website owner, server provider and the players in their respective jurisdictions as the effect of the same is felt in their jurisdictions and residents of these countries may found involved in online gambling and gaming that is illegal in these countries.

There is a serious conflict of laws in the area of online gambling and gaming industry. When it comes to India, this conflict is further aggravated due to conflict of laws between respective States of India. While in a few States it may be legal in almost all other States it is illegal.

As far as gambling in India is concerned, we have a Central law on gambling known as Public Gambling Act of 1867. Similarly, we have many State laws on gambling that are mostly based upon the central law. Further, almost all the State laws are regulating real world or offline gambling in India. The exception in this regard can be found in the laws applicable in places like Goa and Sikkim.

Recently Goa has made its casino laws very stringent keep in mind the money laundering, black money and tax evasion issues in mind. Similarly, Sikkim is also in the process of harmonising its laws with the central laws.

As far as judiciary is concerned, the Supreme Court of India has made a distinction between skills based and chance based gaming activities. Of course, each case depends upon its own facts and circumstances and the respective state law and we cannot apply one decision uniformly in all cases of gambling and online gambling.

The skill and chance and state subject legal arguments are not sufficient to comply with complicated techno legal requirements of India as on date. So before launching an e-commerce portal, the concerned person or company must make it sure that techno legal requirements are duly complied with.

We believe that cyber law due diligence, Internet intermediary liability and cyber due diligence for Indian companies must be kept in mind by various e-commerce websites and players. The skill and chance and state subject legal arguments are not sufficient to comply with complicated techno legal requirements of India as on date. So before launching an e-commerce portal, the concerned person or company must make it sure that techno legal requirements are duly complied with.

India Must Ensure Techno Legal Measures To Regulate Indian Cyberspace

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBTechnology Companies like Google, Yahoo, Microsoft, etc and Social Media Websites like Facebook, Twitter, LinkedIn, etc are providing mechanisms and services through which Civil Liberties in Cyberspace are exercised. The traditional media is so heavily regulated and monitored by our respective Governments that they have limited role in strengthening the Speech and Expression and Right to Know Rights of Netizens. These Technology Companies and Social Media Websites not only provide a “Voice” to the mass population but they also help in keeping a “Check” upon our respective Governments and their Agencies.

However, there is a “Flip Side” to these benefits as well. The services provided by these Technology Companies and Social Media Websites are frequently “Misused” by third parties and these Companies and Websites are not “Compliance Friendly” when it comes to Laws and Regulations of various Jurisdictions. These Companies and Websites frequently abuse the “Conflict of Laws Gaps” to deny information that can help in arresting and prosecution of the Cyber Criminals.

All of these Companies and Websites follow the Laws of their respective Jurisdiction and in almost all cases this means the Laws of United States. What is frustrating for Indian Government and its Agencies is that even if there is a “Clear Violation” of Indian Laws, these Companies and Websites do not provide the “Data and Information” requested by Indian Government and its Agencies. Even Legal Requests by Attorney are not entertained in proper manner and they are required to follow U.S. Laws and Regulations or are asked to undergo a procedure that is neither approved nor recognised by Indian Legal System.

These Companies and Websites can take this “Liberty” because Indian Government has not taken “Techno Legal Steps” against them. As a result Companies like Google, Facebook, etc are openly Violating Indian Laws and “Blatantly Refusing” to entertain and respect Indian Legal Requests for Information.

Even the much hyped Mutual Legal Assistance Treaty (MLAT) has its own “Limitations” to make the offending People/Companies liable as per Indian Laws. For instance, recently U.S. blocked India’s MLAT attempt to make Google, Facebook, etc to comply with Indian Laws. So what would Indian Government do if these Companies and Websites do not comply with Indian Laws and if they cannot be “Compelled” to comply with Indian Laws through MLAT and other mechanisms as well?

Regulating Internet or Cyberspace is a big challenge for all the Nations. India has also started feeling the pressure of the same as Foreign Companies and Websites have started affecting the Law and Order, Peace and Tranquility, National and Cyber Security, etc of India.

India urgently needs to act on both the fronts of Technology and Legal Framework to make these Companies and Websites comply with Indian Laws. On the Technology side, Indian Government must force these Companies and Websites to “Establish Servers in India”. Further, in extreme cases, Indian Government can also “Block” the Services provided by these Companies and Websites at the “National Gateway Level” or “Selectively and Case to Case Basis” through the Indian Computer Emergency Response Team (Cert-In). Judicial Intervention can also be sought to Block the Services provided by these Companies and Websites.

On the Legal Side, Indian Government can make “Necessary Amendments” in the Licenses, Rules and Regulations applicable to these Companies and Websites if they wish to do any sort of “Commercial Activities” in India. Any Company or Website having an Indian Subsidiary Company, Place of Establishment or Business in India, assessable to Indian Income or other Taxes, deriving any Income or Profits from Indian Operations (whether Directly or Indirectly), Income Accruing or Arising in India from their Operations anywhere in the World, etc must be “Compulsorily Amenable” to Indian Laws.

Similarly, Mergers and Acquisitions, Transfer Pricing and Arm Length Dealings, Private Equity and Foreign Direct Investments, Sale and Purchase of Indian Companies Shares and Stakes, etc by these Foreign Companies and Websites must also be “Strictly Regulated” so that they cannot Manipulate and Evade Compliance with Indian Laws.

We request the attention of Indian Government towards these ”Crucial Issues” that must be taken care of on a “Priority Basis”. We are also willing to frame necessary “Techno Legal Framework” so that Foreign Companies and Websites do not evade the Compliance with Indian Laws anymore through the grey area of Conflict of Laws in Cyberspace.

Guidelines Issued By Election Commission Of India For Media Coverage Under Section 126 Of RP Act, 1951

Guidelines Issued By Election Commission Of India For Media Coverage Under Section 126 Of RP Act, 1951The Election Commission of India (ECI) has issued guidelines (PDF) regarding media coverage under section 126 of Representation of People Act, 1951. As per a press release issued by the ECI, Section 126 of the Representation of the People, 1951, prohibits displaying any election matter by means, inter alia, of television or similar apparatus, during the period of 48 hours before the hour fixed for conclusion of poll in a constituency.

The expression similar apparatus includes websites, blogs, social media platforms, etc as well. This makes the enforcement of this prohibition very difficult as websites and social media platforms may not always be located within Indian jurisdictions.

Realising the practical difficulties to regulate foreign websites and social media platforms, it has been proposed that Indian social media websites must be started. It is also been considered to force the technology companies to establish their servers in India so that Indian laws can be enforced more effectively.

Foreign companies like Google, Facebook, etc are not complying with Indian laws and legal requests for information. They are taking shelter behind the conflict of laws in Indian cyberspace and are avoiding compliances with Indian laws. In these circumstances enforcement of the provisions of Section 126 of the Representation of the People, 1951 would be really challenging.

Section 126 (1) (b) provides that no person shall display to the public any election matter by means of cinematograph, television or other similar apparatus in any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in the polling area.

Section 126 (2) provides that any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

Section 126 (3)   provides that for the purposes if Section 126, the expression “election mater” means any matter intended or calculated to influence or affect the result of an election.

Both foreign companies and Indian telecom and technology companies are required to follow cyber law due diligence in India.  They are also “Internet Intermediary” under the provisions of Information Technology Act, 2000. If these companies contravene Indian laws, including section 126 of the RP Act, 1951, they can be prosecuted in India.

Similarly, any individual who assists in the contravention of section 126 shall also be liable to be punished under section 126. Political parties of India and their online supporters must keep this in mind while doing campaign on websites and social media websites.

During elections, there are sometimes allegations of violation of the provisions of the Section 126 of the RP Act, 1951 by TV channels in the telecast of their panel discussions/debates and other news and current affairs programmes. ECI has also invited the attention of all stakeholders to Section 126A of the R.P. Act 1951, which prohibits conduct of Exit poll and dissemination of their results during the period mentioned therein, in the hour fixed for commencement of polls in the first phase and half hour after the time fixed for close of poll for the last phase in all the States.

ECI once again reiterated that the TV/Radio channels and cable networks should ensure that the contents of the programme telecast/broadcast/displayed by them during the period of 48 hours referred to in Section 126 do not contain any material, including views/appeals by panelists/participants that may be construed as promoting/prejudicing the prospect of any particular party or candidate(s) or influencing/affecting the result of the election.

However, during the period not covered by Section 126 or Section 126A, concerned TV/Radio/Cable/FM channels are free to approach the state/district/local authorities for necessary permission for conducting any broadcast related events which must also conform to the provisions of the model code of conduct and the programme code laid down by the Ministry of Information and Broadcasting under the Cable Network (Regulation) Act with regard to decency, maintenance of communal harmony, etc. They are also required to stay within the provisions of Commission’s guidelines dated 27th August, 2012 regarding paid news and related matters. Concerned Chief Electoral Officer/District Election Officer will take into account all relevant aspects including the law and order situation while extending such permission.

Attention of all media has also been drawn to the following guidelines issued by Press Council of India to follow for observance during the election:

(i) It will be the duty of the Press to give objective reports about elections and the candidates. The newspapers are not expected to indulge in unhealthy election campaigns, exaggerated reports about any candidate/party or incident during the elections. In practice, two or three closely contesting candidates attract all the media attention. While reporting on the actual campaign, a newspaper may not leave out any important point raised by a candidate and make an attack on his or her opponent.

(ii) Election campaign along communal or caste lines is banned under the election rules. Hence, the Press should eschew reports, which tend to promote feelings of enmity or hatred between people on the ground of religion, race, caste, community or language.

(iii)  The Press should refrain from publishing false or critical statements in regard to the personal character and conduct of any candidate or in relation to the candidature or withdrawal of any candidate or his candidature, to prejudice the prospects of that candidate in the elections. The Press shall not publish unverified allegations against any candidate/party.

(iv) The Press shall not accept any kind of inducement, financial or otherwise, to project a candidate/party. It shall not accept hospitality or other facilities offered to them by or on behalf of any candidate/party.

(v) The Press is not expected to indulge in canvassing of a particular candidate/party. If it does, it shall allow the right of reply to the other candidate/party.

(vi)  The Press shall not accept/publish any advertisement at the cost of public exchequer regarding achievements of a party/government in power.

(vii) The Press shall observe all the directions/orders/instructions of the Election Commission/Returning Officers or Chief Electoral Officer issued from time to time.

The above guidelines should be duly observed for compliance by all the concerned media, including social media. There are great chances that these guidelines would be violated by various political parties and their supporters especially through online mechanisms and social media websites. Only time would tell how far ECI would be able to meet the objectives mentioned in this press release.

Google, Facebook, Etc Continue To Violate Indian Laws

Google, Facebook, Etc Continue To Violate Indian LawsConflict of laws in Indian cyberspace is getting more and more complicated day by day as Indian government fails to take proper and stringent actions against social media websites like Facebook and technology companies like Google.

While these companies are openly refusing to comply with Indian legal requests yet Indian government has still to find a mechanism to make them  comply with Indian laws especially the Information Technology Act, 2000, Code of Criminal Procedure, 1973 and other related civil and criminal laws of India.

These companies are willing to provide only that much of information as they may deem proper as per their own policies and local laws. Even when it comes to adhering to their own policies they are not strictly following to the same.

The Chandigarh Police cyber cell has recently faced this attitude of Facebook and Google. They have complained of lack of cooperation from United States located technology companies like Google and Facebook.

The cyber crime cell says that their investigation is not making any progress due to lack of cooperation from Google and Facebook. As per the records, the cyber cell here has received over 100 complaints about social networking sites – mainly Facebook – related to account hacking, creation of fake accounts, and uploading of objectionable pictures and posts in the past nine months (January to September), but only seven of them have been converted into First Information Reports (FIRs).

Although Facebook and Google may not be liable under the laws of United States for non compliance with requests and directions of  law enforcement agencies of India yet these companies are “Internet Intermediary” within the meaning of Information Technology Act, 2000 and they are required to follow cyber law due diligence in India.

Indian government may force companies like Facebook, Google, etc to establish servers in India by allowing them to commercially operate in India only once they comply with Indian laws. This is a much needed step in the present circumstances as per cyber law experts of India.

Conflict Of Laws Scenario In Indian Cyberspace

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBOne of the most complex problems of Cyberspaces is that Jurisdictional Issues are not easy to determine and enforce. The Sovereignty of Nations is often found clashing with each other where each Nation tries to enforce its own Laws and Policies. This is the reason that Conflict of Laws in Cyberspace can be found very easily.

Many Technology Companies are incorporated in United States but they have global presence are often found in Conflict of Laws situation in India. These U.S. Companies include Companies like Google, Microsoft, Yahoo, Facebook, Twitter, etc. These Companies are required to follow Cyber Law Due Diligence in India otherwise they can be Criminally Prosecuted in India. Cyber Law Due Diligence for Companies in India has now been well established by the Information Technology Act, 2000 (IT Act 2000).

These Companies are also Intermediary within the meaning of IT Act, 2000 and they are bound by statutory defined Internet Intermediary Liability in India. It is very clear that Cyber Litigations Against Foreign Websites would increase in India.

Foreign Countries, especially European countries, have prescribed stringent provisions for Technology Companies and they follow the same religiously. However, when it comes to Indian Laws, these Foreign Companies cite one excuse or other to avoid compliance with them.  The Cyber Law of India applies to Technology Companies like Google, Facebook, etc no matter whatever excuse they may take this regard.

It is a well known fact that Companies like Google are not complying with Indian laws and Indian Government is not doing much in this regard. Of course, Indian Government may force Companies like Facebook, Google, etc to Establish Servers in India by allowing them to commercially operate in India only once they comply with Indian Laws. This is a much needed step in the present circumstances.

Even Mutual Legal Assistance Treaties (MLAT) are not very effective in all cases. Recently the United States refused to serve Indian summons upon Technology Companies including Google Facebook, etc. Similarly, United States also blocked Indian attempt to make Companies like Google, Facebook, etc comply with Indian laws.

At Perry4Law and Perry4Law’s Techno Legal Base (PTLB) we believe that Indian Government must take “Urgent Steps” to force these Technology Companies to comply with Indian laws. Indian Government must use Techno Legal Methods to achieve this objective.

Similarly, steps against Indian Companies and Intermediaries must also be taken as right now they are not taking Indian Laws seriously and this gives a bad signal to other Companies. We would be glad to help Indian Government and Law Enforcement Agencies in achieving these much needed objectives.