Sunday, January 29, 2012

Cyber Litigations Against Foreign Websites Would Increase In India

Foreign companies and websites are increasingly facing civil and criminal litigations in India. The main problem seems to be application of foreign laws and standards to Indian conditions that is not desirable. These foreign companies and websites apply standards and norms that are well beyond Indian laws and norms.

There are mainly two reasons for this increase in civil and criminal litigations against such foreign companies and websites. Firstly, many individuals and companies in India are neither aware of foreign laws like Digital Millennium Copyright Act (DMCA) 1998 or/and Online Copyright Infringement Liability Limitation Act (OCILLA) nor they prefer to apply the same in derogation of Indian laws, though rightly.

Secondly, even if some individuals and companies invoke foreign laws procedures like DMCA notices and complaints, foreign websites may or may not comply with the same. We have filed a DMCA notice with Google Incorporation and a legal notice to Google India regarding copyright, trademark and impersonation issues. We are still waiting Google’s action in this regard and this shows that even DMCA compliances are not followed by foreign companies and websites.

These are the reasons why filing of civil and criminal cases in India against such foreign companies and websites is increasing. For instance, companies like Google, Facebook, etc are facing a criminal trial in India for not removing objectionable contents from their sites. In other cases, it appear that these companies are deliberately ignoring and violating Indian laws like copyright law, trademarks law and cyber law of India.

There is no doubt that companies like Google, Facebook, Wordpress, etc must comply with Indian laws. These companies cannot claim that they would keep on deriving financial and other benefits from India and would not respect India’s laws and legal procedures.

We believe that India must take urgent steps so that companies and websites like Google, Facebook, WordPress, etc comply with legal demands as per Indian laws as well. We suggest the following in this regard:

(1) All subsidiary/Joint ventures companies operating in India that deal 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 provisions must be formulated for Indian subsidiary companies and their websites.

India must formulate alternatives to DMCA notices to Google, Facebook, WordPress, etc so that these companies and websites comply with Indian laws and legal procedures. These companies and websites should not be allowed to hide behind the fa├žade of being subsidiary company and citing conflict of laws.

Legal action against offending foreign websites can be taken in India if they fail to exercise cyber due diligence. In fact, Google, Facebook, Microsoft, Yahoo, etc have already been summoned to personally appear before a criminal court in New Delhi on March 13, 2012. Further, as a measure of last resort, these foreign websites can be blocked in India for not complying with Indian laws.

We hope the Delhi High Court would consider these suggestions while deciding the fate of companies like Google, Facebook, etc on the forthcoming hearing.

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