cyber laws, india’s needs and the company secretary’s role subramaniam vutha advocate...
TRANSCRIPT
Cyber laws, India’s needs and the Company Secretary’s role
Subramaniam Vutha
Advocate
Key concepts
• LAN
• WAN
• Internet
• WWW
• Cyberspace
• Law of cyberspace
Comparison with
• The automobile highway
• Aviation
• Web 2.0 – Speed– Reach– Connections– Options and implications
How does the law come in?
• Technology does what technology can
• Technology is not concerned about rights, limits, obligations and remedies [from the knife to space exploration]
• But the law is about all these
Real life; virtual life
All these have shifted to Cyberspace:
• Work
• Play
• Interact
And each of these has become a business
You are already in cyberspace
• Banking
• Entertainment
• Filings
• Electronic signatures
• Knowledge sharing or accessing.
• Google gets you going
A slow quiet revolution….
• Inversely proportional to age
• Makes history and heritage a burden sometimes
• But can the Internet keep the law out – remember the Declaration of Independence of Cyberspace
IMPLICATIONS FOR BUSINESS
• Demand for corporate transparency rises
• Ability to provide disclosure zooms
• Going concern concept dying?
• New threats to old businesses? Why your newspaper looks more like a TV and a website?
• Typists at the top
• B2B, B2C, C2B, C2C, P2P ……….
More implications
• Share markets recognize knowledge; MS and Intel v/s Ford, GM, Boeing, Kodak, etc etc.
• The Death of Distance?
• Companies are already virtual entities. Now businesses are becoming virtual?
HYPE vs REALITY• Global village? Borderless world? More
countries [ 1950 – 58, 1999 -185 at UN]
• Finance flows, goods move, people fly, paperwork grows. So do viruses.
• Data is shared/strewn, information is hoarded, knowledge is en-cashed and IPR is used as a strategic weapon.
• The Law steps in.
CYBER LAWS
• A new comprehensive cyber law?
• Or laws adapted for cyber space?
• I T laws, v/s Cyber laws, v/s e-commerce laws.
LAWS LAG TECHNOLOGY
• Growing hiatus -
• Use of traditional theories. E.g. Doctrine of stock exhaustion
• The minimalist approach [India’s I T Act]
India’s I T Act…..
• Functional equivalence, e-governance, offences, digital signatures and remedy framework
• Other laws that apply?
• Contracts, policies, disclaimers and information security fill the gaps. [ Crucial role for CS]
The Internet & Corporate Governance
• Greater disclosure
• Greater frequency
• Greater reach & speed
• NAVs on your mobile
• Edifar, MCA 21 …………
• Authenticity? Dispersed disclosure model?
• The Birbal story
Contracts in Cyberspace
• Web offers
• Emails like faxes; www like telephone
• The perils of mail boxes
• Email contracts versus web contracts
More about cyberspace contracts
• The challenges of
a. Authenticity
b.Integrity
c. Non repudiation
And the role of electronic signatures, CA, and the Public Key infrastructure.
A comparison
Real world contracts
• Offer
• Acceptance
• Consideration
• Parties
• Capacity
• Lawful object
• Ad idem
Cyber space contracts
• Email v/s web
• Contracts of adhesion
• Payment gateways
• Who is that?
• Minors, tricksters?
• Law variations
• Hidden/obscure terms?
Cyber space and torts
• Duty of care to a neighbor
• Duty to act, duty not to harm [Weller & Co vs Food and Mouth Disease Research Inst]
• Primary v/s secondary damage?
• Warnings, disclaimers, limitation of liability
• Lower human interaction; chain of risk?
• Finding v/s requesting [Caparo V Dickman]
Cyberspace and IPR
• Trademarks, service marks and domain names
• And copyright challenges [more later]
• Patents for business models. The story of Jay Walker and priceline.com. Quid pro quo for patents and the Internet.
• Trade secrets and Echelon
Cyber space and new business models
• Amazon.com and the corner book store
• Reverse auctions
• Monopsony on the Net
• Directed driving or surfing
• Telemedicine
• E-chaupal
• E-ducation
Cyber space and the consumer
• Loss of privacy
• Distance selling directives, OFT, SEC, FTC
• Allocation of risk
• The centrality of trust
Cyberspace and taxes
• Money laundering
• Digital cash
• A PAN for everyone
• Indirect taxes – bits and bytes!
• The Net tightens
Cyber space and copyright
• Is everything on any website free for all?
• Implied licenses, non derogation from grant.
• Forwarding e mail
• Open source [manufacturing for masses v/s manufacturing by the masses]
• UGC
Counter forces
• Open systems and monoculture risks
• Data v/s Information
• Greater connectivity v need for insularity
• Fewer intermediaries v more info-mediaries
• Curbs conventional crime and facilities white collar or economic crime
• Piracy for long term benefits?
Cyber crime
• Forgery• Counterfeiting• Identity theft• Tax evasion• Electronic vandalism• Electronic terrorism• Espionage• RTP/UTP
• Sales, Investment frauds
• Advertising frauds• Interception/ tampering• Spam and DOS• Spoofing, shilling,
bidding agents• Pumping and dumping
New opportunities
• Accreditations
• Cyber notaries? Sp. Certifying Authorities ?
• Standards, certifications, audits• Self-regulation, “soft” infrastructure”• High velocity remedial systems • Insurance • Education
The Perils of Paperless operations
• Digital obsolescence
• Dependence on power supply
• External threats like dust, heat
• Handling risks for digital media
• The nanosecond nature of digital destruction
Privacy (contd)
• Data protection obligations include– lawful procurement– lawful purpose– lawful use– adequacy test - not excessive– accuracy and updation– access to persons concerned– security
Role of the company secretary
• Debate and understand implications
• create web sites ( WIRC, ICSI)
• influence and help formulate a national e-commerce framework
• contribute to “soft” infrastructure eg., insurance and liability advisories, funding and IPO’s , IPR advisories, venture capital networks, “web-creation” for entrepreneurs with enabling agencies
Role of Company Secretary (contd)
• Permit and encourage foreign linkages
• introduce e-commerce laws, IPR laws in the curriculum
• review which other laws need changing to foster e-commerce eg., bankruptcy laws, company law (for new types of entities, consolidation of annual accounts, M& A)
The Technology Law Forum
• Not for profit –education and research on Internet, laws and business
• Building bridges between Technology and Law
• Your virtual forum for ongoing interaction
• Write to [email protected] from a g mail id only.
THINK
• Data, information and knowledge. Knowing the difference can make a difference to your working life
• What would you call the current economy? And what are its implications for you?