Should Foreign Websites And Social Media Platform Establish Servers In India?

Foreign companies like Google, Yahoo, Microsoft, etc and social media websites like Facebook, Twitter, etc are continuously made parties to various civil and criminal proceeding world over. Even in India, foreign websites and companies have been constantly prosecuted for violation of various Indian laws.

Perry4Law and Perry4Law Techno Legal Base (PTLB) believe that India must take urgent steps so that companies and websites like Google, Facebook, etc and social networking websites comply with legal demands as per Indian laws as well.

We have no dedicated social media laws in India. Even social media websites investigation in India is not up to the mark. Further, social media due diligence in India is also required to be taken seriously by social media platforms. Now legal actions against foreign websites can be taken in India. Further, cyber litigations against such foreign websites would increase in India in the near future.

The cyber laws due diligence requirements for companies in India are strenuous in nature and Internet intermediaries in India need to take care of the same to avoid legal troubles. Companies like Google, Facebook, etc must appoint nodal officers in India that can be served with notices and communication pertaining to Internet intermediary obligations in India.

Internet intermediary law in India is incorporated in the Information Technology Act 2000 (IT Act 2000) and the Rules made there under. Internet intermediaries’ liability in India is now well established and foreign companies and websites must duly comply with the same to avoid civil, criminal, administrative and financial penalties. In short, these foreign companies and their Indian subsidiaries must ensure that they comply with the cyber law due diligence in India. This is more so after the passing of Information Technology (Intermediaries Guidelines) Rules 2011 of India.  

Foreign companies and social media websites must comply with Indian laws in true letter and spirit. Otherwise, India may adopt more stringent and drastic steps to make them comply with Indian laws.

Conflicts of laws in Indian cyberspace have further complicated the situation. For instance, Google is presently facing conflict of laws problem with US and Indian laws. What would happen if foreign companies and social media websites refuse to comply with Indian laws and insist for complying with US or other foreign laws? This is a possible situation for which a readymade solution must exist.

We suggest the following in this regard:

(1) 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.

(2) A stringent liability for Indian subsidiaries dealing in information technology and online environment must be established by laws of India.

(3) More stringent online advertisement and e-commerce laws in India must be formulated for Indian subsidiary companies and their websites.

If still Indian intellectual property and cyber laws are not respected, there is no other option but to choose a harsh stand of foreign websites blocking in India.

We at Perry4Law and PTLB believe that any attempt by Internet intermediaries to pre screen contents uploaded by users in India is not practical and feasible. However, we believe that cyber law due diligence by Internet intermediaries operating in India cannot be taken casually and with great disregard to India laws as is presently happening in India. If companies are not willing to follow either foreign laws like DMCA or Indian laws, they clearly lack the intention to comply with various legal frameworks.

In any case, companies and websites that have Indian existence and are deriving financial gains from India must adhere to India’s laws that they are currently flouting. The Telecom Regulatory Authority of India (TRAI) has recently suggested the National Telecom Policy 2012 of India. It has suggested many important reforms and changes some of them can apply to foreign websites and social media websites.

Some of the suggestions of Perry4Law and PTLB have been accepted by TRAI and one of them pertains to establishment of servers in India by foreign companies. It has been recommended that all servers on which sensitive data are hosted must be located within India and ensure that all local content is hosted on servers located within the country.

It is high time that foreign companies, websites and social media platforms must fall in line with Indian laws. Otherwise, stringent regulations may follow that would not be beneficial for any individual and organisation.