Are Google, Facebook, Microsoft, Heading For A Trouble?

Companies like Google, Facebook, Yahoo, Microsoft, etc facing a cyber battle in New Delhi, India. A criminal complaint against these companies is pending before a Trial Court of New Delhi. Obviously, these companies did what was best in their interest. They petitioned the Delhi High Court for quashing of criminal complaint against them.

Before the Delhi High Court, the respondent has placed it final arguments on 02-02-2012 and the petitioner would put its final arguments on 14-02-2012. Meanwhile, the Delhi High Court has dismissed a plea of a business man to hear him in this case for violation of his right to speech and expression. The Delhi High Court observed that till date neither the Trial Court nor the Delhi High Court has passed any order which curtailed the citizens' fundamental rights of freedom of speech and expression.

The Delhi High Court also observed that Google and Facebook do have the right to freedom of speech and expression but they are not above the law. There is no second opinion about this proposition as companies like Google, Facebook, Microsoft, Yahoo, etc must comply with Indian laws. Further, legal actions against foreign websites in India can be taken if they fail to comply with Indian laws. In fact, cyber litigations against foreign websites would increase a lot in India.

In fact companies like Twitter and Google have already taken steps to ensure compliance with Indian laws. Twitter has put in place a country specific mechanism to censor/remove offending tweets. Google has also started redirecting Indian bloggers to ***.blogspot.in domains instead of ***.blogspot.com domain. This method would allow Google to remove offending contents pertaining to ***.blogspot.in alone once a valid legal request is made from a particular country or residents of that country.

Yahoo has separately approached Delhi High Court and requested for a separate trial as its case falls in a different category. The Delhi High Court has accepted the request of Yahoo and issued necessary notices in this regard.

Now the companies in question have two options. Either they declare that these laws are not binding upon them or they comply with the same. It seems companies are deliberately avoiding observance of Indian laws. This is an unacceptable behaviour that Indian government cannot afford to allow. It is not a case that only Indian government is feeling offended by non observance of Indian laws. Even private individuals and companies face problems when requests for removal of offending and intellectual property violating contents are made.

Another problem that Indian government must take care of pertains to conflict of laws. When laws of India are clearly violated, there is no sense in complying with laws of foreign jurisdictions, especially when the companies involved in such process also have sound business and commercial presence in India. India must develop an alternative mechanism to DMCA complaints to such India based subsidiary companies as well as their parent companies based in foreign jurisdictions.

These companies are openly violating the requirements of Information Technology (Intermediaries Guidelines) Rules, 2011 without any legal justifications. These companies cannot use the subsidiary argument for long as Indian government would formulate more stringent norms for Indian subsidiaries dealing in information and communication technology (ICT) related matters.

This proposition is also reflected in the recent hearing of the Delhi High Court. Justice Suresh Kait observed that these companies are not above the law and their rights are to be determined under the laws of the land. He further observed that nobody is against the freedom of speech and expression. In fact, despite the summoning order against the websites, neither the Trial Court nor Delhi High Court has asked the websites to shut or restrain from functioning. They have only been summoned in accordance with the law as nobody is above it.

The next date of hearing before the Delhi High court would be on 14-02-2012 where these companies would put forward their final arguments. Let us hope that the Delhi High Court would deliver cyber justice to India.

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.