cyberlaw for company secretaries in india
TRANSCRIPT
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Cyber laws, Indias needs and the
Company Secretarys role
Subramaniam Vutha
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Key concepts
LAN
WAN
Internet
WWW
Cyberspace Law of cyberspace
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Comparison with
The automobile highway
Aviation
Web 2.0
Speed
Reach
Connections
Options and implications
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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
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Real life; virtual life
All these have shifted to Cyberspace:
Work
Play
Interact
And each of these has become a business
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You are already in cyberspace
Banking
Entertainment
Email
Filings
Electronic signatures Knowledge sharing or accessing.
Google gets you going
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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
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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 .
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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?
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HYPE vs REALITY
Global village? Borderless world? Morecountries [ 195058, 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.
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CYBER LAWS
A new comprehensive cyber law?
Or laws adapted for cyber space?
I T laws, v/s Cyber laws, v/s e-commercelaws.
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LAWS LAG TECHNOLOGY
Growing hiatus -
Use of traditional theories. E.g. Doctrineof stock exhaustion
The minimalist approach [Indias I T Act]
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Indias 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. [ Crucialrole for CS]
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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
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Contracts in Cyberspace
Web offers
Emails like faxes; www like telephone
The perils of mail boxes
Email contracts versus web contracts
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More about cyberspace contracts
The challenges of
a. Authenticity
b. Integrity
c. Non repudiation
And the role of electronic signatures, CA, andthe Public Key infrastructure.
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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?
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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]
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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
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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
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Cyber space and the consumer
Loss of privacy
Distance selling directives, OFT, SEC, FTC
Allocation of risk
The centrality of trust
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Cyberspace and taxes
Money laundering
Digital cash
A PAN for everyone
Indirect taxesbits and bytes!
The Net tightens
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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
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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?
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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
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New opportunities
Accreditations
Cyber notaries? Sp. Certifying Authorities ?
Standards, certifications, audits
Self-regulation, soft infrastructure
High velocity remedial systems
Insurance
Education
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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
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Privacy (contd)
Data protection obligations include
lawful procurement
lawful purpose
lawful use
adequacy test - not excessive
accuracy and updationaccess to persons concerned
security
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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 IPOs , IPR advisories, venture capital
networks, web-creation for entrepreneurs
with enabling agencies
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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)
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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?