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 façade 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.

Social Networking Laws In India

Social networking in India has increased tremendously. This has also given rise to many legal issues as well. Most of these legal issues are related to online acts or omissions that are resulting in giving rise to civil and criminal liabilities.

Laws ranging from intellectual property rights (IPRs) to information technology laws are applicable to social networking acts or omissions in India. The growing demands for cyber due diligence in India has further necessitated for adopting of a sound social networking policy in India by various stakeholders.

Social networking media is an “intermediary” within the meaning of Indian information technology act 2000 (IT Act 2000). Thus social networking sites in India are liable for various acts or omissions that are punishable under the laws of India. For instance, social networking sites are liable for online IPRs violations, including online copyright violations in India.

Although we have no law on the lines of online copyright infringement liability limitation Act (OCILLA) of United States yet the “safe harbour” provisions protecting intermediaries are not available under certain conditions as per Indian laws. Social networking sites must be aware of these limitations while operating in India.

At Perry4Law and Perry4Law Techno Legal Base (PTLB) we have been spreading public awareness about social networking issues in general and cyber laws in particular. We hope that social networking sites would be cautious while operating in India.

Cloud Computing Due Diligence In India

Cloud computing in India is still at the infancy stage. The primary reasons for this situation is absence of legal framework for cloud computing in India, missing privacy laws, absence of data protection laws in India, inadequate data security in India, etc. Even the basic level cloud computing regulations in India are missing.

Many legal experts in India have opined that India must not use software as a service (SaaS), cloud computing, m-governance, etc till proper legal frameworks and procedural safeguards are at place. Even the CEOs of many companies are apprehensive of using cloud computing for their companies businesses.

Even if a company or individual offers cloud computing services in India, it/he has to comply with many legal provisions and cyber due diligence requirements. The information technology act 2000 (IT Act 2000) has prescribed due diligence requirements for various business organisations and stakeholders. These due diligence requirements equally apply to cloud computing service providers in India.

These due diligence requirements are very stringent and cloud computing providers can find themselves in legal hassles if they ignore the same. Managing sensitive and personal data and information in India is no more a causal approach but it has become very stringent.

With the proposal to codify law of torts in India, more and more civil proceeding for violation of privacy rights may be initiated against the cloud computing service providers. It would be a wise option to establish best practices and cloud computing policy by all stakeholders in their own larger interests.

Cyber Law Due Diligence In India

Cyber Law Due Diligence and Cyber Security Diligence in India are two fields that are not taken seriously by Stakeholders and Intermediaries of India. Under the Information Technology Act 2000 (IT Act 2000) there are many “Due Diligence Requirements” that Banks, Internet Service Providers (ISPs), Search Engines, E-Commerce Portals, etc must fulfill. However, by and large these Due Diligence Requirements are seldom followed till some “Criminal Prosecution” takes place.

This “Mindset” needs to be changed in India. The Cyber Law of India has express provisions that provides for both Civil and Criminal Liabilities for “Non Observance of Due Diligence”. Once these provisions are attracted, the concerned Person or Institutions has to defend himself/itself in a Court of Law.

In India there is a lack of awareness about both Cyber Law of India as well Cyber Law Due Diligence Requirements in India. This is the main reason why Cyber Law Due Diligence has not been upto the requirements and expectations.

Of all stakeholders, Intermediaries must pay special attention to Cyber Law Due Diligence Requirements of India. Intermediaries like ISPs, Cyber Café owners, Web Hosting Service Providers, Blogging Platforms, etc have to take care of issues pertaining to Cyber Law, Cyber Security, Defamation Laws, Intellectual Property Rights (IPRs) Violations, etc.

A special care must be taken of the Online Copyright issues that are increasingly posing problems for Intermediaries. The liability of Internet Intermediaries for Copyright Violations is an issue that should be taken very seriously. With Laws like Digital Millennium Copyright Act (DMCA) and similar Laws, this liability has become very onerous.

“Take Down Notices” for Copyright Violations in the Cyberspace are very common these days. The moment a take Down Notice is communicated to the Intermediary, it becomes imperative on its behalf to take appropriate action. Further, the “Long Arm Jurisdiction” makes the applicability of National Law Extra Territorial. Even the Cyber Law of India has Extra Territorial Applicability.

Perry4Law and Perry4Law Techno Legal Base (PTLB) “Strongly Recommends” that all Stakeholders and Intermediaries must put in place Robust and Effective Due Diligence Mechanisms at their places. This would not only help them in preventing Crimes and Cyber Crimes but would also protect them from various Civil and Criminal Liabilities as well.