Cyber laws, Indias needs and the

Company Secretarys role

Subramaniam Vutha
Advocate
svutha@svutha.com
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
Email
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 [Indias I T Act]
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. [ 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 IPOs , 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
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Building bridges between Technology and
Law
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Write to subramaniam.vutha@gmail.com
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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?