US Companies, India, Conflict Of Laws And Criminal Liabilities

Companies like Google, Microsoft, Yahoo, etc and social media websites like Facebook, etc are currently facing criminal trail in India for not removing objectionable contents from their respective websites.

According to cyber law of India and laws of other jurisdiction, the safe harbour protection of Internet intermediaries is lost the moment they are notified of the offending act or omission. However, till they are notified regarding offending contents, they are not liable for violations committed by their users.

However, US companies are not following Indian laws and they are insisting upon following of US laws even if Indian laws are clearly violated. For instance, websites located in US are openly violating the copyright of Indian websites and when they are contacted in this regard to remove the copyright violating posts they ask Indians to use US laws like Digital Millennium Copyright Act (DMCA) 1998.

Surprisingly, even if these US companies are informed in writing and with relevant information like weblinks of copyright violating posts and copyright subsisting posts, they still insist upon following of DMCA procedure. What is more frustrating is that a majority of these US websites and companies are themselves not following the requirements of DMCA and hence are not entitled to its safe harbour protection.

Even in the case of cyber laws, US companies are applying US standards and are not following Indian standards. This is a classic situation that is occurring due to conflict of laws. This is also the reason why an international cyber law treaty is required to being harmonious application of cyber law principles.

US need to change its policy regarding enforcement of foreign IP rights and cyber laws. By not respecting the laws of other countries, US websites and companies are imposing laws like SOPA and PIPA upon themselves. Further, companies like Google must pay special attention as they are deriving revenue out of online advertisements placed upon such copyright violating posts. This makes them not only a beneficiary but also liable for damages in appropriate cases.

Companies like Microsoft, Yahoo, Google and Facebook are facing prosecution under the Indian cyber law. Further, if we analyse the cyber law trends in India of 2012 and cyber security trends of India 2012, such prosecutions are going to increase further in future. Insisting upon following of US laws to take action against offenders and websites located in US would not serve any purpose if branches or subsidiaries of such companies are located in India. Further, if such websites and companies fail to comply with Indian laws, Indian government can block such foreign websites in India.

The present litigation before Indian courts is just a beginning and US companies and websites must start respecting Indian laws. If cyber crimes are committed with great disregard to Indian laws and the copyright and other IP rights are openly violated by such companies and websites, their prosecution in India is inevitable. Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that such foreign companies and websites must ensure cyber due diligence in India to escape various civil, criminal and financial obligations.

India Must Stress Upon International Cyber Law Treaty

United States (US) has been working in the direction of making laws that are primarily targeted towards foreign websites. This means that foreign websites that are indulging in unethical behaviours like cyber crimes, intellectual property rights (IPRs) violations, etc can be forced to be taken down or blocked in US by US government.

While this is a policy decision of US that has been widely criticised yet very few have raised points regarding violations of IPRs by US companies of foreign nationals. For instance, if an Indian has to inform a US website of copyright violation, he has to essentially follow the provisions of Digital Millennium Copyright Act (DMCA) 1998. In fact, even those US websites that are themselves not following DMCA and are not entitled to “safe harbour” provisions are insisting upon DMCA notices.

Clearly, US policy towards IP violations of foreign nationals needs to be revised. On the contrary laws like Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PIPA) and the "Stop Online Piracy Act (SOPA) has also been proposed. They target foreign nationals and websites with almost no additional liabilities for US websites and citizens. Clearly, US websites and companies are forcing US and other nations to enact laws like SOPA and PIPA by not taking down IPRs violating materials.

If the attitude of US websites and companies is not changed other countries may also consider enacting draconian laws like SOPA and PIPA. In the absence of reciprocal arrangement between US and India, the least India can do to prevent cyber crimes against and IPRs violation of Indian citizens is to block websites that engage in such activities. This is more so for those websites and Internet intermediaries that deliberately ignore compliances of Indian laws.

While laws like SOPA and PIPA are targeting foreign websites including Indian websites yet the foreign websites, including US websites, are not complying with Indian cyber law and copyright law. The Indian Copyright Act, 1957 and Indian Information technology Act, 2000 prescribes various civil, criminal and administrative penalties that are presently not implantable against such foreign websites. India must seriously discuss this issue with US as this also amounts to non compliance of the provisions of Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement).

The real problem in this regard seems to be that there is no International cyber law treaty that is universally followed. Different countries have different cyber laws and this result in confusion and non enforcement. Even there is no international cyber security treaty that can be followed globally. International cyber law treaty and Indian role cannot be underestimated in this regard.

India must stress upon formulation of an international cyber law treaty to safeguard the interests of its own citizens as countries like US are doing in the absence of mutual cooperation.

International Cyber Security Policy Framework And Indian Response

International Organisations are not taking much interest in the field of Cyber Security and prevention of Cyber Crimes. Of course, at the National level countries like US have laid down their International Strategy for Cyberspace.

The Government Departments in US have also shown an increased Cooperation in the field of Cyber Security. Now US Department of Defense (DOD) and Department of Homeland Security (DHS) would share their respective Cyber Security Expertise.

Further, US has also started strengthening its Cyber Security ties with other Nations and India US Homeland Security Dialogue was a part of the same. In fact, India and US have also signed a Cyber Security Cooperation Agreement. Meanwhile International Organisations have also shown their seriousness towards Cyber Crimes and they have started working in this direction.

However, Cyber Security in India is not upto the mark. We have no Cyber Security Strategy in India. Despite the importance of this issue, we have no “Effective and Implementable” Cyber Security Policy in India.

Further, we have no Cyber Warfare Policy of India, Critical ICT Infrastructure protection Policy in India, Data Protection Laws in India, Cloud Computing Policy in India, Cyber Security Laws in India, etc. Important issues like Cyber Crisis Management Plan of India, Cyber Forensics Laws in India, Legal Enablement of ICT Systems in India, etc are still not part of National Policies and Strategies of India.

At the International level we have no International Cyber Law Treaty and International Cyber Security Treaty that are “Universally Acceptable”. Further, the United Nations and other countries have still to Protect Human Rights in Cyberspace that are blatantly violated World over.

Cyber Security is essentially an International Issue and regional efforts are not conducive for the long term security of Cyberspace. For instance, EU has set up a Cyber Crimes Fighter Team, Seoul has formulated its Cyber Security Plan, Scotland Yard established its own Cyber Flying Squad, EU formed CERT Group to fight Cyber Attacks, etc. While these initiatives are timely and praiseworthy yet they are “Regional” in nature and Cyberspace and Cyber Security are International in nature.

Recent Cyber Attacks on Multinational Firms and Institutions ranging from Google and Citigroup to the International Monetary Fund, have raised fears that Governments and the Private Sector are not well equipped to deal with Cyber Attacks. It is high time that we must ensure not only an “International Harmonised Legal Framework” but also a Robust and Effective International Cyber Security Cooperation that is presently missing. India must also prepare itself for the bigger and unforeseen challenges that are waiting for it.