Tag: #InformationTechnologyAct2000

S.no	Contents
1.	Introduction
2.	What is an E-Contract?
3.	Legal Validity of E-Contracts
4.	Essentials
5.	Validity of E-Contracts under the Indian Evidence Act
6.	Roles of Parties in an E-Contract
7.	Kinds of E-Contracts
8.	Challenges Associated with E-Contracts
9.	Present Dilemmas
10.	Conclusion

Introduction

As we enter the era of digitization, technology has become the backbone of almost everything, from our means of communication to attendance tracking in offices is now seamlessly integrated with technology. It’s no secret that in this day and age, technology is the driving force behind the advancements we see around us. As more companies continue to expand and agreements become increasingly complex, it’s only natural that the contracts themselves should become digitized as well.

Here in India, the rise of online transactions has led to a surge in the use of electronic contracts. These cutting-edge agreements are created and executed through electronic communication and digital signatures, bypassing the need for physical documents or signatures. With this new level of convenience and efficiency, we can now close deals with ease, without having to deal with tedious paperwork or signatures.

What is an E-Contract?

The Indian Contract Act, of 1872^[1], defines a contract as an agreement that is enforceable under the law. Section 2(h) of the Act states that for an agreement to be considered a contract, it must meet certain legal requirements. Interestingly, electronic contracts, also known as E-Contracts, adhere to the essence of Section 2(h) while changing the mode of contract formation. In simple terms, E-Contracts are digital agreements that are created, negotiated, and executed without the need for physical paperwork. The parties involved communicate through electronic means, such as the internet or telephonic media, allowing for a meeting of the minds to take place.

E-Contracts save time and are a step ahead of traditional pen-and-paper contracts as they are entirely paperless and created through digital mediums. Through the use of electronic means, such as the internet or telephonic media, the parties involved in E-Contracts are able to communicate effectively, leading to a meeting of the minds. This not only streamlines the negotiation process but also reduces the need for physical meetings, saving time and resources. Unlike traditional pen-and-paper contracts, E-Contracts are created through digital mediums and are completely paperless, making them environmentally friendly and cost-effective. They are a step forward from traditional contracts, as they are efficient, secure, and authentic.

Legal Validity of E-Contracts

Section 10A of the Information Technology (IT) Act, 2008^[2] is a significant provision in the Indian legal framework that acknowledges the legitimacy and enforceability of electronic contracts. The IT Act was amended to include this section as a response to the increasing use of digital contracts in commercial dealings.

The introduction of Section 10A of the IT Act clarifies that electronic contracts cannot be considered invalid merely because they exist in electronic format. These contracts hold the same legal value and enforceability as traditional paper contracts. This means that parties entering into an electronic contract have the same legal rights and duties as those in a contract executed on paper. The Act not only recognizes the legality of electronic contracts but also sets out certain conditions for their validity. These conditions include making the contract accessible for future reference and using a reliable and secure electronic signature or authentication method. Additionally, it clarifies that any law which requires a contract to be in a particular form or written shall be deemed satisfied if the contract is in electronic form and meets the requirements specified under Section 10A.

Essentials

1. There must be a proposal – one party must offer to enter into a contract.
2. There must be acceptance – the other party must agree to the proposal.
3. Legal consideration must be there – there must be something of value exchanged between the parties.
4. Parties must be able to contract – they must have the legal capacity to enter into a contract.
5. Free consent by the parties – the parties must enter into the contract freely and voluntarily without any coercion or undue influence.
6. Lawful objective – the purpose of the contract must not be illegal or against public policy.

It is essential for an e-contract to fulfil these criteria in order to be valid and enforceable under the law. Therefore, if all the necessary elements of a contract are present in an electronic agreement, it cannot be invalidated solely on the basis of its digital form, making E-Contracts legally binding and valid. It is crucial to establish the legal validity of an E-Contract to ensure that legal action can be taken in case of any violation of the agreement.

Validity of E-Contracts under the Indian Evidence Act

According to Section 65B^[3], any information contained in an electronic record that is either printed on paper, stored, recorded, or copied in an optical or magnetic media produced by a computer, can be deemed to be a document. However, this is subject to certain conditions, including that the electronic record is produced in court in compliance with the provisions of the Indian Evidence Act, and that it is accompanied by a certificate identifying the electronic record containing the statement of the person who had control over the creation of the record.

In essence, Section 65B ensures that electronic records are given the same evidentiary value as physical documents. This provision is particularly significant in the context of electronic contracts, as it reinforces their legal validity and provides parties with a means of proving the existence and terms of an electronic contract in court.

Roles of Parties in an E-Contract

An e-contract usually involves two parties: the originator and the addressee. The originator is responsible for initiating, sending, or creating the electronic message, while the addressee is the intended recipient of the message. The originator could be an individual, a business, or any other organization that initiates electronic communication. They can send an e-contract proposal to the addressee through various electronic channels such as email, messaging platforms, or an online contract management system.

The addressee, on the other hand, may also be an individual, a business, or any other entity that receives the proposal from the originator. Once the addressee receives the proposal, they may choose to accept, reject, or make a counterproposal based on the terms and conditions of the e-contract and the negotiation process between the parties.

Kinds of E-Contracts

The main types of contracts are:

• Shrink Wrap contracts – Contracts that are agreed upon by the end user by opening the product packaging.
• Click Wrap contracts – Agreements that are agreed upon by the end user by clicking on an “I agree” or similar button on a website or software.
• Browser Wrap contracts – Contracts that are agreed upon by the end user by using a particular website or software.

In addition to these, there are also other types of contracts, such as:

• Electronic Data Interchange – It is the type of e-contract that is used in the business-to-business (B2B) context for the automated exchange of business documents.
• E-Mail contracts – Agreements that are formed through the exchange of e-mails between the parties.

Comparing Traditional and E-Contracts

Within the legal domain, it is imperative to recognize the fundamental disparity between conventional contracts and electronic contracts. The former entails a tangible signature and is produced on paper, whereas the latter involves the utilization of digital signatures and is created digitally. In addition, the formation of conventional contracts demands the presence of the involved parties in a physical setting, culminating in elevated transaction costs and protracted processes. Conversely, electronic contracts obviate the need for physical presence, resulting in diminished transaction costs and enhanced expediency.

Challenges Associated with E-Contracts

• AUTHENTICITY AND SECURITY

E-contracts pose various challenges in their formation and enforcement, including concerns about the authenticity and security of electronic documents. Although the use of electronic signatures and digital certificates can ensure authenticity and security, there is always a risk of fraud, hacking, and unauthorized access to electronic documents. As technology advances and individuals become more knowledgeable about it, there is a risk of malicious use that can compromise the privacy of the public. Parties to e-contracts must take adequate measures to protect their electronic documents from such risks, including but not limited to using secure communication channels, employing encryption techniques, and regularly updating their security protocols.

• ENFORCEABILITY

The enforceability of electronic contracts in India hinges on their adherence to the requirements set forth in the Contract Act. Under the Contract Act, parties to a contract must possess the contractual capacity and the agreement must not violate any laws or public policies. Moreover, the contract terms must be lucid and explicit, and the contract must have consideration.

In India, there have been several instances where the enforceability of e-contracts has been challenged in courts of law. One such example is the Trimex International FZE Limited v. Vedanta Aluminum Limited (2010)^[4] case, in which the court upheld the enforceability of an electronic contract, despite the absence of a physical signature. The court declared that the usage of digital signatures and the presence of a valid offer and acceptance satisfied the prerequisites laid out in the Contract Act.

• JURISDICTION

One of the most significant challenges in the realm of electronic contracts pertains to jurisdiction and choice of law. Electronic contracts are frequently established across different jurisdictions, with the involved parties potentially operating under distinct legal systems. Therefore, the clauses regarding jurisdiction and choice of law must be meticulously crafted to ensure that the parties agree on the applicable law and forum for dispute resolution. Failure to properly address these clauses could result in one party being subjected to laws with which they are unfamiliar, potentially leading to non-compliance and undesirable legal ramifications. As such, it is imperative for parties involved in electronic contracts to engage in thoughtful deliberation regarding jurisdiction and choice of law clauses to minimize potential conflicts and disputes.

Present Dilemmas

• AUTOMATED CONTRACTS IN E-COMMERCE

The proliferation of artificial intelligence and machine learning in e-commerce has led to the formation of contracts through automated systems, raising pertinent legal questions regarding their enforceability. The primary concern revolves around whether contracts formed without any human intervention are legally binding and enforceable. With the increasing use of automated systems, it is essential to evaluate the validity of these types of contracts and determine if they adhere to the requirements set forth by contract law. The development of these automated systems has also prompted the need for a clear legal framework to ensure that parties involved in such contracts are adequately protected. Thus, there is a pressing need for legal guidelines and regulations to facilitate the formation, validity, and enforcement of contracts through automated systems.

• ONLINE DISPUTE RESOLUTION

One of the challenges in the enforcement of e-contracts is the possibility of disputes arising between the parties involved. In order to address this issue, there is a need for a mechanism for online dispute resolution, similar to the physical systems that exist for resolving disputes. With the increasing use of technology in e-commerce, the use of online dispute resolution can provide a cost-effective and timely solution to resolve disputes in the same medium in which the contract was formed. This would not only save time and money for the parties involved but also promote trust and confidence in the use of e-contracts.

• DATA PRIVACY

E-contracts often entail the collection and processing of personal data, which can potentially be accessed by individuals with sufficient technological expertise. It is essential that the use of such data complies with applicable data protection laws, including the General Data Protection Regulation (GDPR)^[5] in the European Union and the Personal Data Protection Bill in India, to safeguard the privacy and security of individuals. Adherence to such laws can help ensure that personal data is processed lawfully and transparently, and that appropriate measures are taken to protect against unauthorized access, theft, or misuse of personal data.

• FORCE MAJEURE

It is imperative to update the force majeure clause in e-contracts to account for unforeseeable events that could impede contract performance. Traditionally, force majeure provisions applied to uncontrollable events, such as natural disasters, wars, or labour strikes that were unforeseeable at the time of contract formation. However, given the increasing reliance on technology in conducting business, it is vital to include potential disruptions caused by cyber-attacks, technology failures, or similar events. Thus, it is necessary to include provisions in the force majeure clause that explicitly describe the effect of such events on contract performance, to ensure that e-contracts remain valid and enforceable in these scenarios.

Conclusion

In the contemporary era, the prevalence of e-contracts has become ubiquitous, making it arduous to avoid or anticipate their eventual dominance over traditional contracts. The digital age has witnessed the widespread adoption of e-contracts as a customary mode of contracting. The legal framework governing the formation and enforcement of e-contracts is underpinned by legal principles and statutory provisions. Provided that they satisfy legal requisites, e-contracts are enforceable to the same degree as paper-based contracts. However, the realm of e-contracts poses distinctive challenges, including concerns related to the legitimacy and security of electronic documents, as well as issues related to jurisdiction and choice of law. To ensure the enforceability and validity of e-contracts, parties must implement appropriate measures to mitigate these challenges. Although e-contracts offer notable advantages in terms of expediency and efficiency, parties must remain vigilant to address unconventional challenges. Given that technological progress is inevitable, it is vital for parties to e-contract to be cognizant of these challenges and take appropriate steps to address them.

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Endnotes:

1. The Indian Contract Act, 1872, Act No. 9 of 1875
2. The Information Technology (Amendment) Act, 2008, Act No. 10, Acts of Parliament, 2009 (India).
3. The Indian Evidence Act, 1872, Act No. of 1872
4. Trimex International Fze Limited v. Vedanta Aluminium Limited, 2010 (1) S.C.C. 574 (India)
5. General Data Protection Regulation (GDPR), https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679

This article is authored by Sohini Chakraborty, a first-year law student at RGNUL Patiala.

Read more about E-Contracts:

• Laws Governing Online Contracts, http://lexpeeps.in/laws-governing-online-contracts/
• Validity and Challenges of E-Contracts, http://lexpeeps.in/validity-and-challenges-of-e-contracts/
• Evidentiary Value of E-Contracts, http://lexpeeps.in/evidentiary-value-of-e-contracts/

INTRODUCTION

Computers seem to have made our life easier as they could be used for several purposes like education, payment of various bills, source of entertainment, and access to surplus information of the global world among many others. What we often ignore is the threat it poses to whoever has access to it in the advanced form of crime known as ‘Cyber Crime’. Cybercrime is all about the use of a computer where either a computer is used to commit a crime or a crime has been committed by targeting a computer. In order to prevent such computer crimes, we now need a computer-based law called ‘Cyber Law’. Cyber laws protect computer networks against other computer networks by laying down rules, regulations, and guidelines regarding Cybercrimes.

CYBERCRIME

Cybercrime is an illegal invasion of information stored by an individual, corporations, and governments. Such invasion may not take place physically; the offender and victim may never be in contact with each other but what they invade is a personal and corporate digital body. The world’s first cybercrime was conducted in the year 1834 French Telegraph System when thieves hacked into the system of the French telegraph and succeeded in stealing financial market information. Since then, many cyber-crimes have been committed like Morris Code Worm, Malicious Code, Phishing, DNS Attack, BotNets, Bitcoin Wallet, and Android hack. Governments of many countries have started working together to stop such crimes.

TYPES OF CYBERCRIME

A. AGAINST INDIVIDUALS

a. Email Spoofing: The message appears to have been received from somewhere other than the actual source.

b. Spamming: Same message sent to millions of addresses in the hope to receive a response.

c. Cyber Defamation: Publishing of false information on cyberspace to harm the reputation of the person concerned.

d. Phishing: Stealing information by identifying himself/herself as the individual whose identity is stolen.

B. AGAINST PROPERTY

a. Software piracy: Copying of software illegally

b. Copyright infringement: Using any text, picture, music, or book that is under someone else right. 

C. AGAINST ORGANISATION

a. DOS Attack: The offender floods the server with numerous traffic so that the files cannot be accessed by the rightful owner.

b. Email Bombing: Infinite number of emails is sent to an email address to flood the service to which the email address belongs.  

D. AGAINST SOCIETY

a. Forgery: Where false currency, signatures and documents are produced.

b. Web Jacking: Fake websites are created to access the information of another.  

WHY CYBER CRIME?

1. EASY ACCESS: Lack of security and complex technology about which cybercriminals are well aware leads to breaches of data and much important information.
2. LESS USAGE OF MEMORY: Computers are prone to store a large amount of data in small spaces making it easier to be accessed by cybercriminals.
3. COMPLEXITY:  Programmes run under, millions of codes to which a layman is unaware and cybercriminals take advantage of this.
4. IGNORANCE: Human beings unaware of the computer world tend to ignore many factors related to the security of data which may lead to an illegal invasion of an uninvited guest.
5. DESTRUCTION OF EVIDENCE: Cyber criminals are used to committing the same crime over the year again and again which leads to efficiency in their way of data leads us that there through evidence of them breaking in the first place.

CYBERLAW

Cyber Law plays an important role to control crimes committed through computer networking and concerns all aspects involving technology have cyber laws about it.

In India, cyber laws origin can be traced in—

Information Technology Act 2000

Act based on United Nations Model Law on Electronic Commerce 1996.

The act gives:

1. E-Mail is valid and legal for communication.
2. Digital signatures are given legal status.
3. Digital certificates to new companies.
4. Government can issue e notices.
5. Communication between companies and the government can be done through an online network.
6. Addressing grievances of the general public through an online portal.
7. Ensuring security to digital data.

Shreya Singhal v. Union of India¹ legal status of Section 66A of IT Act, 2002 was challenged before the honourable Supreme Court. In the instant case, two women were arrested after posting objectionable comments due to the complete shutdown of Mumbai on the death of a political leader, in retorting they question the constitutionality of Section 66A of the said act. Whereas, the court held that Section 66A is legally valid as the statement given by an individual may be annoying even if not affecting reputation, and does not violate article 14 of the Indian constitution as there is intelligible differentia between speech by cyberspace and other forms of speech.

Avnish Bajaj v. State (NCT) of Delhi² in this case CEO of the website Bazee.com was arrested on the ground of broadcasting cyber pornography but was soon released as he was supposed to be nowhere involved in the said offence and shreds of evidence which were collected are directed towards some others who used the service of the website for sharing the cyber pornography.

INDIAN PENAL CODE, 1860

In India the Penalties of some offences are also mentioned in other acts depending upon the damage it may cause to the victim therefore offences like obscene material or sexually exploiting of children transferred electronically through the system of networks, acts of voyeurism, stalking, cheating, theft through electronic devices are all punishable offences under IPC.

State of Tamil Nadu v. Suhas Katti³ the accused in the instant case was a friend of the victim and was eager to marry her but the victim declined and got married [i]to someone else and later got divorced. Therefore, the accused coaxed the victim once again only to get rejected. Then accused made a fake account of Id on email by the victim’s name and posted obscene and defamatory information about the victim resulting in his arrest. Later, was charged with 2 years of rigorous imprisonment and a year of simple imprisonment along with a fine.

CBI v. Arif Azim⁴ through this case India got its very first cybercrime conviction someone named Barbara Campa logged into a website through which someone from a foreign country can purchase products to be delivered in India. The purchase of a Sony Colour TV with the wireless telephone was made under the same Id. Later, The credit card agency claims that the owner of the card through which payment was done had not done any purchase. CBI investigated the case and found that Arif Azim to whom the delivery was made worked at a call centre somehow got the details of Barbara Campa whose card was used for purchase. Arif Azim being a youth and first-time offender was released on probation for a year.

COMPANIES ACT 2013

The act specifies the technical requirements for a company and gives the government the power to punish anyone who doesn’t complement the technical requirements. Over time the effectiveness of these laws is advancing, giving guidelines for companies and their management to abide by.

IMPORTANCE OF CYBER LAW

Cyber laws are very important in the era of computers and advanced technology. It helps small-scale industries work effectively so that their productivity doesn’t get harmed, and allows the company to surf the internet without any barrier. Data recorded would be preserved and due to penalties, the capable intruder may not do so.

Presently, the Central government has no plan to form any organisation to deal with such matters but the government did make laws that are efficient enough. The government presented the National Cyber Security Council 2013 with the ministry of IT and Electronics aiming at the prevention of cyber threats, minimizing the damage done by cybercrime, and protecting the structure and data of computers. Ministry of home affairs passed a scheme aiming to prevent cyber crimes against children and women.

India is at 23rd rank out of 183 countries on the Global Cybersecurity Index of the UN. Further, the government aims at making it in the top ten of the list in the coming year.

CYBERSECURITY IN INDIA

Cybersecurity is the protection of the systems of networks by a firm or an individual for the sake of the protection of data in their system. Cybersecurity of one must be strong enough to fight against the illegal invasion by someone with the intention of misusing the data. With the advancement in technology, there are numerous ways in which one can invade your personal space due to these systems of the network must be protected effectively and efficiently.

To handle the problem of cybercrime—

• Using strong passwords.
• Protect your data with enough strong encryption.
• Protection of your personal information.
• Keep your systems updated.
• Usage of antivirus programs.

CONCLUSION

Nowadays, cybercriminals are harmful to both developed and developing countries, therefore they should work together to fight against cybercrime. Budapest Convention is the only multilateral treaty signed internationally in 2001 by various countries which came into existence in 2004. It provides guidelines to countries for the creation of a system that fights against cybercrime. In 2017, a Russian Resolution was put before United Nations that aims at sharing data among countries to prevent cybercrime. India states that sharing data with foreign countries goes against the National sovereignty of India and Budapest convention was drafted without the presence of India therefore it stands neutral.

Citations:

1. AIR 2015 SC 1523
2. 2008 DRJ 721: (2008) 150 DRT 769
3. C No. 4680 of 2004
4. 2013

This article is written by Simran Gulia, a BA LLB student from Maharaja Agrasen Institute of Management.

Abstract

Gambling, in the current time, is mushrooming at an enormous speed, thereby posing a grave threat to the stakeholders involved due to its inherent vulnerability. The vociferous and the reverberating calls for its legalization newer assume more significance given the nebulous state of gambling laws in the country. Although the legalization would bring with itself a gush of entailing benefits, the profound and the pressing issues at hand pertaining to legalization are required to be given a thorough perusal including the pricking need to overhaul enforcement mechanism rather than venturing into the question of how and when to legalize the gambling given the legal and socioeconomic intricacy of India.

Introduction

It would be apposite, to begin with, the scrutinization of the term “gambling”. Gambling is a game that involves chances of winning or losing money or possessions of bet. Cambridge dictionary defines betting as the habit of risking money and placing a wager on the outcome of sports events. Gambling is a genus while betting is a species and both function on the coefficient of unpredictability especially those of the sporting events. The modern world thrives on the perpetuities of monetary gains and gambling serves as a handy way to satiate those materialistic needs.

This article seeks to systematically articulate the advantages and disadvantages that ensued due to the legalization of gambling, thereby concluding with some apposite and congruous solutions.

Background

India and gambling have had a substantiative co-relationship since ancient times, with the Rig Veda believing to have documented its first description. Since then, gambling has been a popular choice in India among the masses when it came to quick monetary gains in the course of satisfaction with worldly needs. Initially, gambling was encouraged in colonial India due to its economic benefits, but soon, it was illegalized due to its ensuing negative consequences such as bankruptcy, criminal delinquency, etc.

Thus, the Public Gambling Act of India was passed in 1867¹ to regulate and restrict gambling practices, thereby, illegalizing gambling albeit without sufficient punitive sanctions. The Act sought to restrict most forms of gambling including sports gambling (lotteries, casinos, festive gambling, etc were allowed and regulated in a few states) that was wagering in nature involving pure chance (eg: using the roll of dice or marble to determine the outcome) baring the few games that involved “skill” and not pure chance such as horse racing; online games of skill such as rummy, poker, fantasy games, etc. In K.R. Lakshmanan v. State of Tamil Nadu², the Apex court held that “The test of the legality of gambling vis-à-vis nature of sports is dependent upon the dominance of the element of skill/chance with regard to a recognized sport.”

With the advent of the constitution, Subjects of betting and gambling were kept in the State list as entry no. 34. The States have been given the liberty to delve into their own legislation on betting and gambling, having the freedom to regulate and deregulate it. While some states such as Sikkim (which has legalized betting in the online form), Kerala (conducts State-run lotteries), Goa³ (which has legalized casinos), etc have framed their own betting laws, others continue to govern themselves via the Central legislation of 1867. In a nutshell, both online and offline sports betting baring the games involving “skill” are currently illegal in India.

In recent times, gambling has unfettered its wings, mushrooming at an enormous speed with no signs of ebbing down in near future, more so due to the advent of advanced technology, penetration, and access to the internet in even the remotest corner of the world. India, too remained at the forefront to exploit this vice opportunity, with the 2016 ICC and the 2013 IPL betting scandals that involved thousands of crores of Rupees, giving testimony to this booming trend. It was in light of such massive illegal betting markets and the large-scale flouting of the law by the masses that the Supreme Court of India, in 2016, mandated the Law Commission of India (LCI)⁴ to examine a logical way to deal with India’s illegal gambling.

The LCI mentioned in its report that– “since it is not possible to prevent these activities completely, effectively regulating them remains the only viable option” Also, a Private Member Bill was introduced by Mr. Shashi Tharoor in 2018 in this regard, which articulated the legalization of sports betting in India under strict surveillance as it would curb the illegalized betting ecosystem in India which was under the monopolistic ambit of underworld mafias. It would curb the black money market, along with the generation of massive revenues for the government which could then be utilized for funding the sports infrastructure and betterment of athletes. Some of the potential restrictions that the bill sought to introduce were barring the minors from participating and limiting the highest betting fees one can bid. The bill impeccably envisioned the regulation mechanism by introducing a 7 member committee that would be responsible for formulating the rules and regulations monitoring sports online gaming. The bill also sought to criminalize the activities of sports fraud and match-fixing to the extent of 5 years of imprisonment and hefty fines which in turn would espouse deterrence. The bill also focused on maintaining the integrity of sports and preventing any event such as manipulations or match-fixing as those current pressing issues were not dealt with by the present legal framework.

Advantages of legalizing gambling

Gambling is one of the forms that has been an inherent phenomenon in Indian society and curbing it entirely won’t be certainly possible, more so because of the willful and brazen flouting of the legal norms by masses. Hence, giving it a legal sanctity would be a desirable approach in the discourse of its regulation and fund generation thereby espousing public consent and adherence rather than remaining oblivious to its incongruous existence. Far from this realization has been the seemingly illogical approach of the legislative setup which has still kept it within the cloak of illegality. This has been further reinforced by the Indian Judiciary by keeping horse race (on the basis of predicting the winnability) under the gamut of ‘games of skill’ but not the other games involving technicality and intricacy of similar nature such as cricket or hockey.

The most popular form of gambling has been in the sporting activities involving bets, which has evolved itself as a clandestine ecosystem possessing a huge network of people and enormous amounts of money. The Drastic modernization in the sports ecosystem coupled with the digital boom has led to sweeping revolutionary changes across the spectrum. This in turn accentuated the gambling culture creating a mammoth web of individuals and finances involved in this subculture. The first step in the legalization process would involve systematic identification and acknowledgment of these prevailing entities. Next would come regulation, owing to the fact that an exorbitant amount of Rs 300,000 Crores of black money is used annually for betting and the sector involves an enormous cash flow worth 60 billion dollars which is 3.5% of India’s GDP. It will lead to transparency as the source of cash flow could be traced and tracked thereby keeping a tight check on the black money market. Licensing of the brokers would further keep a check on them by curbing the black money laundering in illegal betting which is often used to fund terrorism and related nefarious activities¹. Involving in such illegal activities could lead to the cancellation of their licenses which in turn would serve as a deterrence to them. The legalization of sports betting would also ensure the protection of the subtle interests of minors, uneducated, poor fellows with a limited income and lack of bargaining power, and the elderly with shrinking life savings, who are often cheated by brokers. They remain at disadvantage due to unregulated and unenforceable market agreements lacking legal recourse owing to the wagering nature of the contract where the interests of the weaker party lacking bargaining power is jeopardized.

Currently, the earnings under betting are not reported as a source of taxable income under the Income Tax Act, 1961, thus, creating an avenue for black money. Legalizing the same would make the disclosure of such income mandatory (paving the way for effective surveillance and regulation) along with the generation of revenue receipts for the government to the tune of a minimum of Rs 12000 crores per annum⁵. It would also check on the tax evasions by brokers and bettors. The fund generated could be used for revamping sports infrastructure and related welfare schemes of the country along with peddling the development of the tribal and conventional sports that have been grossly neglected owing to their unpopularity and lack of resources.

Legalization would also serve as the panacea for ever-rising unemployment in the country by providing jobs ranging from the post of officers (required to monitor betting transaction) to a new catena of brokers who would specialize in sports betting along with a majority of unskilled workers employed in the implementation of menial economic activity in the betting industry. India, having the required knowledge, expertise and population could also evolve itself into a niche avenue for cyber betting like Denmark, the USA, etc, thus bringing with itself valuable foreign exchange which in turn would fuel the economic prosperity of the country.

Further, policing of the current gambling laws which illegalize it becomes a major problem due to the sheer numbers of “law-breakers” and exhaust colossal time of the law keepers which could be efficiently used for other productive work. Even effective policing results in large numbers of people gaining criminal records, with all of the consequential social problems. (employment problems, social and family stigma due to criminal record, etc). Hence, legalization would serve to meet the above ends. One other argument often posed in favor of legalization/regulation is that gambling adversely affects only a minority (less than 1% of the population due to problem gambling). So depriving the majority of a harmless leisure activity when it could add to a mix of other advantages is not worth it

Disadvantages of legalizing gambling

It is argued that the job of the government is to lead the people and not to simply follow popular views, especially if there are “public interest” reasons for pursuing unpopular routes. The concept and practice of gambling have historically been frowned upon in the Indian context. The moral issues constrain the government from peruse the idea of legalization as this has been a forbidden virtue in the Indian sub context given its entailing disadvantages. Giving it a legal sanctity would go against this entrenched ideal of morality.

Legalization would entail massive social costs as various studies have revealed that adolescents engaging in such activities possess a higher rate in school and academic failure accompanied by a history of family conflict triggered by the loss of household income, erratic sexual activity, severe financial difficulties such as large debts, poverty, and even bankruptcy; conflict and breakdown in relationships and a variety of psychological illnesses including anxiety and depression and psychiatric disorders, thus, paving way for baleful tendencies to commit suicide arising out of the ensuing depression.

State-sanctioned gambling would disproportionately burden the socially and economically backward people who expend a greater portion of their income into such wagering contracts, thus, exposing them to the channels of destituteness and crimes such as fraud and embezzlement, to address the mounting financial demands of their gambling. It will also push them into the scourging avenues of alcohol and drug addiction thereby instigating a vicious cycle of economic losses. Apart from the above menaces, gambling would also seriously impact the integrity and the true sportsmanship spirit of the sports due to the money factor and instances of match-fixing.

A logical argument against gambling follows that if gambling were to be legalized, it follows that more people would gamble (due to its enticing nature), and subsequently, more would become problem gamblers who face the adverse effects of gambling. Studies corroborate the above fact showing that increased availability of and easy accessibility to 2 gambling increased the participation in gambling and also the consequent prevalence of problematic gambling that entails massive social costs. Studies show that in India, although the prevalence of gambling was low, the proportion of people who had developed problem gambling among those who did gamble was considerably higher as compared to other countries. The final argument against legalization is that, even if it were to be considered a good idea, in theory, the time for such a major policy change in India is not right, because India did not possess the infrastructure to conceive, implement, monitor, or regulate such a huge change.

Suggestions

Certain suggestions could be considered in the light of the given circumstances. First, because of India’s inherent diversity, changes should be piloted in one or few states instead of going for pan India legislations so as to evaluate the post and pre-policy changes along with avoiding the deleterious and incongruous effects. Second, sufficient research needs to be undertaken so as to generate the local and relevant empirical pieces of evidence vis a vis the Indian sub context instead of relying on foreign pieces of evidence. Third, the question of government or private ownership of gambling monopoly needs to be delved upon. Fourth, the safeguard mechanism for the stakeholders needs to be put in place along with relevant and requisite standardized norms for regulation.

Conclusion

Keeping gambling under the scope of criminal legislation in spite of its nonviolent nature has been a source of contention amidst the scholars who view this as a step to give legitimacy to State paternalism. Section 30 of the Indian Contracts Act 1872 renders such betting (wagering) agreements voidable and takes off the recourse of legal enforceability, thus, exemplifying its vulnerability to financial exploitation and illegitimate transactions. Now in recent times, with a drastic surge in online gambling, the IT Act, falls short to curb people from engrossing in illegitimate offshore gambling websites where there is the absence of the protective blanket of national laws.

Thus, the archaic legislation of 1867 and the present laws being incompetent, abruptly fail to regulate the ongoing inconsistencies pertaining to betting. Further, nonchalance concerning the present penal provisions and the recklessness of the stakeholders exacerbate the administrative incapacities and ineffective framework of government. Against this backdrop, the vociferous and the reverberating calls for newer legislations assume more significance given the nebulous state of gambling laws in the country.

Given the pros and cons of the current issue at hand, there is no unambiguous evidence to support the status quo. Although the legalization would bring with it a gush of entailing benefits, the profound and the pressing issues at hand pertaining to legalization are required to be given a thorough perusal including the pricking need to overhaul enforcement mechanism rather than venturing into the question of how and when to legalize the gambling.

References

1. The Public Gambling Act, 1867. http:// www.sangrurpolice.in
2. 1996 AIR 1153, https://indiankanoon.org/doc/1248365/
3. https://www.scams.info/online-casino/india/#laws
4. Law Commission of India. Legal framework: Gambling and sports betting including in cricket in India. Report number 276. New Delhi: Law Commission of India, 2018.
5. http://timesofindia.indiatimes.com/business/india-business/Goa-casinos-contribute-Rs-135cr-revenue-in-2012-13/articleshow/19524670.cms

Written by Riya Ganguly student at Bharati Vidyapeeth New Law College, Pune.

Introduction

Over time, many changes occur in society; these changes have both beneficial and harmful consequences. As the nature of law evolves, new laws and amendments are introduced into society to regulate the violation of living beings’ rights, privacy, and security.

There’s a Bible proverb that goes something like this: “Either you can believe all of it or you can’t trust any of it,” and that’s how fake news spreads. If you can’t distinguish which news is real vs phony, which is truth vs lies, many people will quickly throw up their hands and declare that none of them can be trusted.

With the introduction of computers, the internet, social media, and networking websites, these developments, particularly on the technological front, became mass development with the introduction of computers, the internet, social media, and networking websites, which crept into and made their way into people’s lives.¹

The law of social changes as trends change. People are discovering new ways to conduct crimes in a high-tech manner as time progresses. However, by adopting new statutes and enactments, the law has broadened its jurisdiction and begun to remove these flaws from society. As a result, the Government of India has submitted a bill called the Fake News (Prohibition) Bill, 2019.

Fake News Prohibition Bill, 2019

The Fake News (Prohibition) Bill of 2019 was passed to make it illegal to create and distribute fake news in the media, as well as other related issues. In India, fake news refers to misinformation or disinformation conveyed by word of mouth and conventional media, as well as more recently through digital modes of communication such as altered videos, memes, unconfirmed adverts, and rumors circulated on social media. This statute applies to the entire country of India, it includes:

a) Misquotation of one’s remark is an example of fake news.
b) Altering audio and video files, causing facts and context to be distorted.
c) For the advantage of a person, agency, or entity.

Objectives of the Bill

Fake news has made it easier to spread false information in the era of the internet, where anybody can submit a report or a comment that appears to be a news item and declare it to be accurate and factual. Fake news or information must display or intend to exhibit propaganda to blacken or disgrace one’s reputation or create or plan to induce fear, division, turmoil, violence, or hate. Due to the propagation of fake news on social media platforms such as Whatsapp, Facebook, and Twitter, a huge number of mob lynching occurrences have been recorded around the country. Political parties were also discovered to be distributing misinformation on social media during the country’s elections, according to studies.

To control and the spread of fake news in any form, whether it is through circulation, sharing, misquotation of statements, editing of audio and video clips, fabricating content, undermining, sowing seeds of enmity, sedition, hatred, disseminate, edit, abet, etc., a debate took place in the House of Lok Sabha on the subject on February 8, 2019, and Shri. Tej Pratap Singh from Mainpuri proposed before the Hon’ble Chairperson to introduce The Indian media research organization CMS indicated in a report by The Guardian that the growth of false news was due to India’s “lack of (a) media strategy for verification.” Additionally, reporters and journalists have been imprisoned for “making false stories, “particularly when the pieces were contentious.

Fake News in India

In Alakh Alok Srivastava v. Union of India², the Supreme Court of India acknowledged the problem of infodemics in India and issued an order for state governments to follow the Centre’s orders to combat the threat of fake news. The top court also highlighted the necessity for the government of India to provide a daily bulletin through all media outlets as a source of real-time verifiable information on Covid-19 to alleviate the fear and apprehension generated by the uncontrolled flow of fake news.

The recent mass evacuation of migrant workers was caused, according to this petition, by the anxiety induced in the minds of the laborers as a result of bogus news that inflated the duration of the lockdown to endure for more than three months. Poor migrant laborers were killed as a result of this evacuation, which was brought about by the distribution of illicit information.

Fake news spread over WhatsApp in Odisha, claiming that a person from outside the state had been sick. After an inquiry, the police discovered that the claim was untrue. At the time, India lacks a specialized law to control false news; yet the epidemic is demonstrating the necessity for one.

Provisions of different laws in India

Information Technology Act, 2008 (IT Act)
In India, social media platforms that are classified as ‘intermediaries’ under Section 79(2)(c) of the Information Technology Act, 2008 are obligated to exercise due diligence when performing their tasks. Initially, under the Act and the April 2011 guidelines, intermediaries were not liable if they were not responsible for the origination, transmission, or reception of such content across their reach. As a result of this change, intermediaries gained protection, allowing them to be slackers in their efforts to combat bogus news.

When the government realized its error, it devised a remedy on the opposite extreme of the spectrum, instructing intermediaries to proactively block information. These restrictions have been compared to censorship in China. The government can use this as a political weapon to suppress stuff that does not benefit them. The free expression would be harmed by such a law.

Indian Penal Code (IPC)³
Section 505(1)(b) of the IPC deals with the dissemination of false and malicious material that causes fear or panic in the general public, or in any segment of the general public, with the intent of inducing an individual to commit an offense against the state or public peace. The offender under this section can be punished with imprisonment of a maximum of 6 years and a fine. Section 505(1)(b) combined with Section 54 of the DMA have been envisaged to include the expansion of fake news to a large extent.

The actual issue with fake news is fraudulent information that is disguised as real news in the form of unpaid pieces. The malice requirement might be avoided, and the spreader of misleading information could face severe responsibility and exemplary damages. The implementation of strict responsibility, on the other hand, would need tracking the disinformation back to its source, which has been recognized as a time-consuming and inefficient procedure.

Disaster Management Act, 2005 (DMA)⁴
Section 54 of the DMA professes to handle ‘false alarm or warning as to disaster or its severity or magnitude, leading to panic’ and this has been applied while recording arrests so far. It makes the offense punishable with imprisonment up to 1 year and the imposition of a fine. The same provision, on the other hand, has long been criticized for being too narrowly focused on catastrophes at a time when the breadth of false news is far broader.

While this one-of-a-kind characteristic of the Act restricts its use to disasters, it does have a good side effect. It ensures that the use of this clause does not extend beyond the extraordinary circumstances of a disaster, preventing the government from using it to further restrict free expression.

Curbing Fake News within Jurisprudence

Restriction of some rights can be permissible in the context of major public health hazards and public emergencies endangering the nation’s survival, according to international human rights law. The size and severity of the Covid-19 epidemic have elevated it to the status of public health danger, justifying limits on freedom of expression and speech. Such limits, however, must adhere to the standards of international human rights law. The same has been enshrined under Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR)⁵ which requires the limitations to have a legal basis, to be solely significant, to be subject to review, and to be proportionate to acquire the aim. While it is vital to take steps to prevent the spread of disinformation, there is an unintended consequence. Efforts to combat false news might result in the imposition of censorship laws or the suppression of critical thinking that is essential to make educated judgments. To combat the spread of disinformation, Thailand’s government recently enacted restrictions that included a blanket prohibition on communications that are either “false” or “misleading”. The Thai government used this method to detain an artist who challenged the government’s reaction to the current public health crisis.

Concluding Observations

During this situation, it is critical to combat bogus news. It should not, however, come at the price of free expression. Temporary measures that take away some liberties in the near term but do not turn out to be a political weapon for any ruling administration are the way ahead in suppressing free expression. Temporary measures will allow the government to make necessary modifications to the current system to safeguard us. We should allow the government to protect us in our weak state, but this should not result in the government abusing our frailty. To combat the rapid spread of fake news, the government must collaborate with the public and intermediaries. We must do so; else, fake news may prove to be as deadly as the epidemic. Without a question, the problem of fake news and fake is growing like wildfire around the globe, necessitating the passage of legislation to regulate and restrict the transmission of fake news on social media and other platforms. The bill was constructed and prepared with the goal of prohibiting the transmission and distribution of false news, and thus “The Fake News (Prohibition) Bill, 2019” was created and presented to the Lok Sabha.

References:

1. Critical analysis of the Fake News (Prohibition) Bill, 2019, by Yogesh V Nayyar, Advocate in Supreme court. https://blog.ipleaders.in/critical-analysis-fake-news-prohibition-bill-2019/
2. ALAKH ALOK SRIVASTAVA v. UNION OF INDIA, Supreme Court Of India, Writ Petition (Civil) No. 76 Of 2018 | 01-05-2018 https://indiankanoon.org/doc/129422211/
3. THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860 1* [6th October 1860.]
4. Disaster Management Act (DMA), Power to remove difficulties. [23rd December 2005.] https://www.ndmindia.nic.in/images/The%20Disaster%20Management%20Act,%202005.pdf
5. International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, p. 171 https://www.refworld.org/docid/3ae6b3aa0.html

Written by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

INTRODUCTION

In the current globalization period of the electronic and IT age where providers, clients, purchasers, and laborers are all at better places and are isolated by various time regions questions which emerge should be settled through electronic intervention so that time and cash both can be saved. This article attempts to harp to a greater degree toward the thrilling fate of e-assertion gave frameworks of checks and equilibrium are kept up with like conventional discretion ¹.
The utilization of innovation in debate goals is presently not an uncommon event. The ideas of worldwide exchange and unfamiliar venture are cherished in the crucial idea of global business assertion and online debate goal. 2021, the time of hope, brought a limit with regards to more noteworthy work and global venture. Because of the uncommon dependence on virtual or advanced advances in 2020, substances, for example, organizations, firms, and legal counselors began encountering digital assaults.
While, the innovative progressions have now overcome much enough for everybody to know that, in a limited way, information and security hazards are constantly implied, the highly sensitive situation in 2020 constrained attorneys, customers, and foundations towards remote working frameworks that are intensely reliant upon online innovation and administrations².
In India, an internet-based mediation statement in customary and e-contracts is substantial under Section 7 of the Arbitration and Conciliation Act of 1996 (the “Act”). This has released Pandora’s container of specialized and lawful intricacies. Law offices have turned into a most loved objective for such exercises. Law offices work in a framework that is dynamic, non-static and various briefs are taken care of all the while by lawyers over messages and online records.

GOING INTO AN ONLINE ARBITRATION AGREEMENT

The different ways by which gatherings go into an internet-based assertion arrangement are by:

• Commonly consenting to determine any questions through the internet-based discretion instrument, and
• Consenting to an internet-based assertion proviso via purchasing any item or administration where the terms of purchasing give so. The agreements of each exchange are available by a hyperlink or are given toward the finish of a page. The permeability of the said agreements assumes a vital part in examining the extent of a noteworthy/enforceable web-based discretion understanding.
  

There are two sorts of sites with regards to deciding if huge consideration of the purchaser was brought towards the state of online intervention or not:

1. Browse-wrap sites
   These sites are of such nature that they expect to agree to the hyperlinked agreements by the purchaser essentially entering the site. Since the hyperlink is regularly dark and, in some cases, thought to be agreed to, these agreements are without any web-based intervention provisos.
2. Click-wrap sites
   Click-wrap sites require the purchaser to effectively show that the purchaser is consenting to their agreements for the buy ¹.

LEGITIMATE VALIDITY OF ONLINE ARBITRATION IN INDIA

While Section 31 (1) of the Act gives that an intervention arrangement will be recorded as a hard copy, it will be perused with Section 4 of the Information Technology Act, 2000 (“IT Act”) which expresses that where any law gives that any matter will be recorded as a hard copy/type-composed/printed, then, at that point, such prerequisite would be considered fulfilled assuming such matter is: (i) made accessible in an electronic structure; and (ii) available to be usable for ensuing reference¹.
In web-based business connections, the issue of checking the character of the restricting gatherings is very normal. One should make certain of the individual’s character with whom they are managing. Section(s) 4 and 5 of the IT Act read with Section 65-B of the Evidence Act explains the legitimate acknowledgment of electronic records and marks. Such online endorsements are crucial in guaranteeing the character, validness, and non-disavowal/legitimacy of information correspondence, along these lines catalyzing trust.
Under the said segments, the Supreme Court, in State of Maharashtra v. Dr. Praful B. Desai, 2003 4 SCC 601, has likewise recognized the execution of video conferencing frameworks to record observer explanations. For consistency, the rules given by the International Chamber of Commerce might be followed.
Online assertion and ADR overall happen under the shadow of the appropriate laws to the topic. The result from the appropriate law where no arrangement is reached (in an internet-based mediation continuing) gives the gatherings included a sensibly solid thought of their negotiating posture in a debate during the period of planning in the intervention procedures. Hence, a steady and all-inclusive methodology in managing the internet-based case the executives’ frameworks for online mediation stay to be in shortfall.
The current law in India can be perceived from two milestone Supreme Court cases, Trimex International FZE Ltd. v. Vedanta Aluminum Ltd., (2010) 3 SCC 1, and Shakti Bhog Foods Ltd. v. Kola Shipping Ltd., AIR 2009 SC 12, wherein the Hon’ble Court has maintained the legitimacy and enforceability of an assertion understanding recorded as a hard copy closed through a trade of messages and electronic archives that were endorsed by the gatherings.

TRUST IN ONLINE ARBITRATION

The capacity of trust and equity in web-based assertion is intricate and incorporates a few variables which need due thought. Because online intervention procedures are virtual, it is hard for the authority to build up trust in and among the gatherings. In internet-based mediation, parties frequently host not met the contradicting get-together, not to mention the judge. This forces a constraint on the comprehension of the referee concerning the gatherings in question, their relationship, and their foundation. The referee passes up the different social signals and a chance to peruse the gatherings’ body language.

CONCLUSION

With the coming of innovation in the developing internet business time, e-mediation are the future anyway the equivalent must be effective on the off chance that there are laws, computerized security, digitization of courts and online paperless legal executive ought to be set up in India, which are followed in any case there will be ascending in more questions and the premise motivation behind discretion will be foiled and shoppers will be denied evenhanded equity.

References

1. Scope of Online Arbitration and its Future in India. usllsadrblog.com. [Online] https://usllsadrblog.com/scope-of-online-arbitration/.
2. Future of arbitration : everything you need to know about e-arbitration . blog.ipleaders.in. [Online] https://blog.ipleaders.in/future-arbitration-everything-need-know-about-e-arbitration/.

This article is written by Sara Agrawal student at Sinhgad Law College, Pune.

A petition was filed in the Bombay High Court challenging the constitutional validity of the Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 claiming that the new IT Rules violate the law, citing Article 14 (equality before the law), Articles 19 (1) (a) (to freedom of speech and expression), and 19 (1) (g) (to practice any profession or to carry on any occupation, trade or business).

The rules are being challenged because they seek to impose unreasonable, excessive, and vague burdens on digital news publishers. The Rules seek to these publishers of news and current affairs content under the ambit of the Press Council of India Act, 1978, and the Cable Television Networks (Regulation) Act, 1995, without amending the respective legislations.

It is argued in the petition that the new IT Rules 2021 are beyond the Central Government’s legislative power because the Information Technology Act of 2000, does not contain anything that seeks to regulate or enables the regulation of digital content and ethics of online publishers, apart from a single provision that allows for the banning of content available online on specific grounds

The plea says these rules should be deemed unconstitutional under the Information Technology Act of 2000. In the meanwhile, it requested a stay on them.

-Report by VANESSA RODRIGUES