Conflict Of Laws And US Companies And Websites

Internet has changed the way we create and share information. Further, Internet has also made the conflict of laws problem more troublesome and complicated. For instance US companies and websites may not comply with Indian cyber laws and vice versa.

As per a recent research analysis by India leading techno legal ICT law firm Perry4Law and its techno legal segment PTLB, US companies and websites are increasingly feeling the pressure to comply with Indian laws, especially the intellectual property and cyber law. Google, Facebook, etc may even be asked to establish servers in India to make compliance with Indian laws easier.

Further, conflict of laws is also posing a big problem for US companies and websites. Those companies and websites that have no physical presence in India find it unnecessary to comply with Indian laws.

Take the recent example of Nirmal baba episode where an ex parte interim injunction was issued against Hubpages.Com and one of its writers known as Indijobs. Not only this, Hubpages was also directed that on the next date it shall provide the complete details of identity of Indijobs and his Author Log in data including contact details, registration data, residence address and IP address to the Delhi High Court in sealed cover.

Since neither Hubpages nor Indijobs contested the suit, it was single sided and ex parte in nature although it could have been well contested. US companies, India, conflict of laws and criminal liabilities issues would become more complicated in the future. It would not be a good strategy to surrender to unjustified demands without a fight.

US companies like Google, Facebook, etc must formulate Techno Legal Strategies for India, suggests Praveen Dalal, managing partner of Perry4Law and leading techno legal expert of Asia. Google is already facing Conflict of Laws Problem in India, informs Dalal.

Further, cyber litigations and disputes are going to increase in India and companies that are eying upon Indian business must not let such proceedings seal their fates.

Google and Facebook In Indian Cyber Law Tangle

Internet intermediaries in India are required to follow certain due diligence requirements under the cyber law of India incorporated in the information technology act, 2000 (IT Act 2000). If they fail to observe such cyber due diligence, the safe harbour protection available under the IT Act 2000 is lost.

While pre screening of contents and expecting Internet intermediaries like Google, Facebook, Microsoft, Yahoo, YouTube, Linkedin, etc to keep a vigil watch upon the Internet is simply unreasonable and unrealistic yet asking Internet intermediaries to block or remove offending contents, after they have been duly notified in this regard, is a genuine need and reasonable demand.

Such removal or non removal of objectionable and offending contents cannot be considered to be right or wrong as per Internet intermediaries or Indian government’s viewpoint. Rather an independent analysis of the same must be made by courts keeping in mind the facts and applicable laws.

Further, there must be uniformity in application of Indian laws to all in similar situations. If there is a discrimination against foreign companies and favour for domestic companies, this undermines the confidence and trust of online community world over. For instance, recently Reliance and Airtel blocked websites in India whose legality is still doubtful. Department of information technology (DIT) must investigate such blocking in order to rule out favoritism for domestic companies.

It has also been reported that social media websites users in other states of India are planning to engage in legal battles in such states to access any blockage of such websites. Legally they can do so but in the long run such a move would be counter productive.

Companies like Google and Facebook would appear today before the Delhi High Court to prove their innocence in the recently filed criminal case before a trial court. In fact, the trial court has asked the representatives of the parent companies to appear before it and face the trial.

Clearly, the argument of being a subsidiary has kicked back and now the parent company has to face the trial. Even if the subsidiaries are exempted from any criminal liability, the liability of parent company is now emerging as an even bigger issue. Let us see how Delhi High Court would decide the case today.

How Would Google, Facebook, Microsoft And Yahoo Approach Delhi High Court?

Recently the Indian government granted its approval to criminally prosecute companies like Google, Facebook, Microsoft and Yahoo for posting objectionable contents on their websites. Indian government claims that despite repetitive requests being made to these websites, they failed to remove the objectionable contents from their websites.

Before that companies like Google and Facebook approached the Delhi High Court to quash the complaint against them. However, the Delhi High Court refused to do so and this cleared the way for continuance of the complaint against these companies. With the granting of sanction by central government under section 196 of the Code of Criminal Procedure (CrPC), 1973, the criminal trial against these companies can now be started for diverse offenses under Indian laws.

The trial court has adjourned the matter till March 13, 2012. The trial court has also directed the external affairs ministry to serve the summons issued to foreign-based social networking and other websites. With this the excuse of being an Indian subsidiary is also gone and now parent companies would have to face the heat and their executives have to appear personally before the trial court. Now the Delhi Police can also prosecute these parent companies after the sanction has been received.

The representatives of companies may or may not appear before the trial court. If they appear, they have to face the trial and prove their innocence as per Indian laws. If they do not appear, this may have serious ramifications that these companies cannot afford to face.

On 16th January 2012 the Delhi High Court would hear further arguments of these companies. However, it seems the matter would not be settled easily and lightly by Delhi High Court. Techno legal experts like Praveen Dalal have been warning against unconstitutional cyber laws in India. He was the only cyber law expert of India who protested against the information technology amendment act 2008 (IT Act 2008) in its present form that is root of all present cyber law related distortions in India.

According to Praveen Dalal, the cyber law of India should be repealed. There is no second opinion about the fact that the cyber law of India needs urgent reforms if not a repeal. However, the companies like Google, Facebook, Microsoft, Yahoo, etc cannot complain now when they did not complain earlier at the time of IT Act 2008, opines Praveen Dalal. Now the IT Act 2000, as amended by the IT Act 2008, is the law of the land and these companies must follow the same, suggests Dalal.

It seems these companies are in hot water as they have not complied with Indian cyber laws requirements and now they cannot turn back and question the very same cyber law that they silently endorsed earlier.

DOT India Must Investigate Reliance Websites Blocking Case

The department of information technology (DIT) is the concerned department that deals with issues pertaining to websites blocking in India. DIT has prescribed a standard procedure if an individual or company wishes to get a website blocked in India. Such procedure has been prescribed under the information technology act 2000 (IT Act 2000) and its rules that is the cyber law of India.

In a recent criminal case, a trial court of Delhi has asked representatives of companies like Google, Facebook, Yahoo, Microsoft, etc to appear in person. If these companies fail to make a proper representation and comply with Indian laws, Indian government can block their websites in India.

Every country has this right to block websites to enforce its national laws and India is not unique in adopting this approach. However, the laws of website blocking must be uniformly applied without any discrimination. If foreign websites and companies are treated stringently then domestic websites and companies must also be treated similarly.

According to Praveen Dalal, managing partner of law firm Perry4Law and leading cyber expert of Asia, Websites can be “Legally Blocked” in India on the direction of a Competent Court of India if these Websites fail to “Comply” with such Court’s Directions. Further, Websites can also be blocked in India if the Designated Officer, appointed by Indian Government, Directs an Indian Government Agencies like Computer Emergency Response Team, India (CERT-IN) to block such Websites, informs Praveen Dalal.

Clearly, there is no provision where private individuals or companies can block websites according to their own whims and fancies. Recently, doubts about the legality of websites blocking by Reliance entertainment have surfaced. If DIT wishes to maintain a neutral and justice oriented approach towards all companies and websites, then it must investigate whether Reliance entertainment has blocked such site legally or illegally?

If telecom companies are allowed to block websites by bypassing Indian cyber law, then the entire purpose of the same is frustrated. Further, in such situations it is wrong to ask companies like Google, Facebook, Yahoo, Microsoft, etc to comply with Indian laws.

DIT must first set its own home in order so that its can ask others to follow its directions. This episode of Reliance has put a question mark upon the very system that has been used in India to block domestic and foreign websites. We hope Reliance in general and DIT in particular would publicly come up with an explanation in this regard.

Has Reliance Entertainment Blocked Websites Illegally In India?

Broadly speaking, websites blocking in India can be done either by a court order or by an order of competent authority of Indian government. There is nothing that allows private individuals or companies to block websites on their own and in their self interests. It is also now well settled that Indian government can and should block offending websites if they fail to comply with Indian laws.

Many US based websites and social media platforms are showing great reluctance to comply with Indian laws and requests originating out of the same. These include companies like WordPress, Google, Facebook, etc. Similarly, many Indian websites may be involved in copyright violations and other contraventions and may not be responsive to demands originating from US. Naturally, countries have no other option but to block such websites in their respective jurisdictions either by a court order or by enacting draconian laws like SOPA and PIPA.

However, such blocking of websites by any country must be done in a proper manner. According to Praveen Dalal, managing partner of law firm Perry4Law and leading techno legal expert of India, Websites Blocking in India by Judiciary must be Just, Reasonable and Fair. There should not be an “Unreasonable” or “Casual Approach” towards Blocking of Websites in India by Indian Courts. If Websites are “Violating” Laws of India and they have been “Notified” to this effect and still they “do not Remedy the Situation”, then the Safe Harbour Protection under Indian Information Technology Act, 2000 is “Lost” and such Websites/Owners can be Prosecuted in India, informs Praveen Dalal.

Such Websites can be “Legally Blocked” in India if they fail to “Comply” with Court’s Directions or Directions of Indian Government Agencies like Computer Emergency Response Team, India (CERT-IN) that are duly ordered in this regard by a Designated Officer, informs Praveen Dalal.

In this background we must analyse the recent blocking of foreign websites in India. Recently, Reliance Entertainment has once again convinced the court to issue an order in its favour or at least it is interpreting it so. The broadband customers of Reliance were not able to access certain legitimate file sharing/hosting websites as Reliance blocked such sites. Hints have been given that CERT-In has not been involved in this process at all and Reliance blocked the website unilaterally. The same websites were accessible on the networks of other ISPs.

Naturally, the question arises has the Delhi High Court ordered such blocking of websites? The relevant portion of order of Delhi High Court reads:

“One can also not lose sight of the fact that film piracy in respect of such new release is not uncommon and judicial note of this fact can be taken. In the facts of this case as detailed above, in my view plaintiff (Reliance) has succeeded in making a, prima facie, case in its favour. Plaintiff has exclusive copyright over the film “DON2” which is yet to be released. For the forgoing reasons, defendants and other unnamed and undisclosed persons (websites), are restrained from copying, recording or allowing camcording or communicating or making available or distributing, or duplicating, or displaying, or releasing, or showing, or uploading, or downloading, or exhibiting, or playing, and/or defraying the movie “DON2” in any manner without a proper license from the plaintiff or in any other manner which would violate/infringe the plaintiff’s copyright in the said cinematograph film “DON2” through different mediums like CD, DVD, Blue- ray disc, VCD, Cable TV, DTH, Internet services, MMS, Pen drives, Hard drives, Tapes, CAS or in any other like manner”.

Obviously this is a simple order of temporary injunctions and not blocking of any website whatsoever. On what basis Reliance Entertainment, as an Internet service provider (ISP), blocked websites in question is still not clear. In fact, from the bare reading of these facts and order, it seems Reliance Entertainment illegally blocked such websites in India.

Cert-In must investigate this matter unless it has itself given permission to block such websites. However, this does not seem to be the case and now it is for the Reliance Entertainment and Cert-In to explain this unreasonable websites blocking and Internet censorship behaviour.

Indian Government Can And Should Block Offending Websites

Lots of hue and cry has been seen these days due to the stern warning of Delhi High Court to block websites that do not comply with Indian laws and legal demands arising out of the same. It seems the mainstream media is not understanding the situation and just hysterically reporting the matter for the sake of reporting.

The better news is that the Indian government has sanctioned prosecution of websites and social networking platforms like Facebook, Google, Microsoft and Yahoo India over objectionable content on their sites. Now the question arises is blocking of Facebook, Google, Microsoft, Yahoo, etc in India is required? Can Indian government block such websites and should it block such websites?

The answer is very simple. Yes it can and in fact Indian government should block all such websites that do not comply with Indian laws as in force. Few of us already believe that such websites must be blocked in India if they violate copyright and other laws of India and fail to comply with them despite them being suitably notified.

In fact, Indian government has already started the process in this regard. Filing its reply in the trial court the government gave its nod to invoke serious charges against the accused websites.

Meanwhile, the trial court on Friday adjourned till March 13, the hearing in the case of 21 social networking sites allegedly hosting objectionable content. The court has directed the external affairs ministry to serve the summons issued to foreign-based social networking sites and websites. The efforts of trail court are worth praising and let us hope that these efforts would come out with a concrete result.

So what is the law of India in this regard? According to Praveen Dalal, managing partner of law firm Perry4Law and leading techno legal expert of India, Websites Blocking in India by Judiciary must be Just, Reasonable and Fair. There should not be an “Unreasonable” or “Casual Approach” towards Blocking of Websites in India by Indian Courts. If Websites are “Violating” Laws of India and they have been “Notified” to this effect and still they “do not Remedy the Situation”, then the Safe Harbour Protection under Indian Information Technology Act, 2000 is “Lost” and such Websites/Owners can be Prosecuted in India, informs Praveen Dalal.

Thus, as far as prosecution of these accused websites are concerned that is perfectly legal as per Indian laws. Now let us examine the desirability of blocking of such websites if they do not comply with orders of Indian courts. Websites can be “Legally Blocked” in India if they fail to “Comply” with Court’s Directions or Directions of Indian Government Agencies like Computer Emergency Response Team, India (CERT-IN) that are duly ordered in this regard by a Designated Officer, informs Praveen Dalal. So even blocking of such websites is justified and legal in India.

I am sure when the Delhi High Court would hear the accused websites lawyers in next hearing; the offending contents would be already removed by these websites. There was no need to drag the matter to such an extent and the offensive material should have been deleted earlier. All that was required to be seen was whether the offending material in question violates any law of India. If it does the material must be removed after the communication in this regard is duly made to the concerned website.

You have a right to speech and expression but you cannot defame others and post pornographic materials upon sites. The poster of such material is definitely liable for punishment but even the Internet intermediaries like websites and social media websites loose their safe harbour protection if they fail to exercise due diligence.

There is nothing new in this position as even US laws like Digital Millennium Copyright Act (DMCA) 1998 do not extend safe harbour protection if the internet intermediary fails to observe due diligence. When these websites are following similar norms, rather more stringent one, in US why they are reluctant in doing so in India. The entire episode has shown just one thing that these websites do not wish to follow Indian laws and if they cannot be successfully tried in India, blocking of such websites is a good option.

I am a firm believer of civil liberties in cyberspace and am against unreasonable and illegal technology control, e-surveillance, Internet censorship and websites blocking, but i also believe that laws of various countries must be followed by all as well. Thus, Indian government and courts can and should block these websites in India if they keep on ignoring Indian laws anymore. Of course, those who wish to access such websites in India can still access the same through anti censorship mechanism.