Legal Arsenal For Delhi High Court To Decide Google And Facebook Case

A recent DMCA complaint to Google incorporation and notice to Google India has resulted in the emergence of very interesting situation. The situation asks a simple question i.e. what should India do when websites like Google, Facebook, etc deliberately avoid implementation of and compliance with Indian laws and legal requirements.

This is a difficult question that requires practical solutions. Fortunately Perry4Law Techno Legal Base (PTLB) has even suggested alternatives to DMCA complaint to foreign websites and companies like Google and Facebook.

PTLB has suggested the following:

(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 provisions must be formulated for Indian subsidiary companies and their websites.

These are very good suggestions that would take away the façade of subsidiary status and make the companies that are getting commercial gains from India to be personally liable for objectionable contents and various civil and criminal violations and contraventions.

The Delhi High Court would hear Google, Facebook, etc on 02-02-2012 and there is nothing that prevents it from taking note of these suggestions.

Meanwhile, the trial court 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 websites. With this the excuse of being an Indian subsidiary is also gone and now parent companies would have to face the heat.

Use Of Video Conferencing In India

Video conferencing in India has been in use for commercial and governmental purposes. Indian courts have been using video conferencing for recording evidence of witnesses. Similarly, corporate houses are using video conferencing for business purposes.

However, video conferencing in India is a troubled technology. The recent episode of Rajasthan government and Rajasthan police not allowing the video conferencing of Salman Rushdie shows Indian struggle with information technology.

We have no dedicated video conferencing laws and regulations in India. Obviously, we have no dedicated video conferencing blocking laws in India as well. In the absence of a clear cut law, Indian government is following procedures that do not justify its stand.

Use of video conferencing for expressing one’s views and opinions is a part of right to speech and expression. Such speech and expression cannot be curbed unless certain constitutional requirements are fulfilled.

India needs to make it sure that technological uses like video conferencing are not blocked by citing arbitrary and extraneous reasons. Otherwise, it would amount to violating the right to speech and expression.

E-Discovery In India Needs To Be Developed

Electronic discovery in India was considered an important cyber aspect by the cyber law trend of India 2011 of Perry4Law and Perry4Law Techno Legal Base (PTLB). Even the projected cyber law trends in India 2012 by Perry4Law and PTLB have placed e-discovery services in India at a prominent position.

Despite the importance of e-discovery in India the same has not yet been adopted suitably. There are very selective e-discovery LPO and KPO in India that are providing e-discovery LPO and KPO services in India. The information technology act 2000 (IT Act 2000) is the cyber law of India that incorporates provisions regarding electronic evidence. All electronic evidences must comply with the requirements of IT Act 2000 in order to be legal and valid.

According to Praveen Dalal, managing partner of ICT and IP law firm Perry4Law and leading cyber law and cyber forensics expert of Asia, “Despite popular belief, Cyber Forensics is different from E-Discovery, Digital Recovery or other synonymous terms. Cyber Forensics primarily caters the “Legal Requirements” whereas E-Discovery meets the requirements of private individuals and organisations as well.

He gives an example to explain the difference. “Take an example of a security breach like hacking in an organisation. The management of the organisation decides to trace the origin of this breach. After proper analysis they come to know about the source of that breach. Till this stage it is only an E-Discovery. The management can take whatever preventive or remedial measure as it may deem fit”, informs Praveen Dalal.

If the management decides to take a “Legal Action” against the offender, it has to prove the acquired digital evidence before the Court of Law. Mere E-Discovery may not be enough to prove the guilt of the accused as legal requirements regarding evidence and procedural laws must also be complied with. When the E-Discovery is “Law Compliant” it becomes “Cyber Forensics”, suggests Praveen Dalal.

This difference between e-discovery and cyber forensics has become a well accepted principle and well established standard of e-discovery and cyber forensics in India and world over. So firms and companies performing e-discovery must keep in mind this crucial difference.

In short, if e-discovery is not performed as per the cyber law of India and other Indian laws, the same may be held inadmissible in court of laws. In fact, every e-discovery investigation must be conducted with the objective that the same would be used in various civil and criminal proceedings. This essentially means that when stakes are high, e-discovery must always be supplemented with cyber forensics investigation. This also means that e-discovery practices in India need to be developed for the proper growth and sue of e-discovery in India.

Google And Facebook Are Beneficiaries Says Indian Government

Google and Facebook are currently fighting a legal battle in the Delhi High Court against a trial court’s order to prosecute them along with other websites and social media platforms. Google and Facebook appeared today before the Delhi High Court to prove their innocence in the recently filed criminal case before a trial court. Meanwhile the trial court has asked the representatives of the parent companies to appear before it and face the trial.

The Delhi High Court on Monday adjourned the hearing of the petition filed by Google and Facebook challenging the trial court's order to prosecute them for objectionable content, till January 19.

Some arguments were raised by both the sides before the Delhi High Court. The Indian government said that websites such as Google and Facebook are liable for the content, posted on their platform by users, as they benefit from the content. This argument was taken to counter the arguments of Google that it does not control or benefit from the platforms, such as YouTube, Orkut or Blogger.

Government’s counsel Hariharan argued that every click on a Google owned website gets it revenue on the content. He said that Google India is wrong in stating that it is just an Ad-collection subsidiary of Google Inc. The Memorandum of Association (MOA) of Google India shows that it is in the business of production of software, internet products, computer aided design, analysis, selling internet search, engineering platforms and solutions. Thus it is not only in the business of advertising alone argues Hariharan.

Citing an analogy, Google India's counsel Neeraj Kishan Kaul argued before the Court that a landlord cannot be held liable for an illegal activity carried out by a tenant in his house. However, this argument did not find favour with Justice Suresh Cait who countered him by saying that if a landlord is benefiting from the illegal activity carried out by a tenant he can be held liable for the same.

The government's counsel also countered Google India's argument that it has no control over the platforms and is a separate legal entity. He pointed that the MOA of Google India’s company clearly states that the office of Google India's Managing director will be vacated upon direction of Google Inc. He also pointed out that the trademark of parent company can also not be changed without parent company’s permission. He also pointed that almost all shares of Google India are owned by the parent company.

The lawyer of Facebook took a different approach. He tried to attack the very evidence that has been relied upon by the complainant. He said that the evidence collected by the complainant is not testified as an electronic record, and thus can't be admitted. The next hearing would be on 19th January 2012.