India's first Cyberlaw, The Information Technology Act, 2000 spells out numerous issues for the corporate sector which need to be taken most seriously for making e-commerce a success in India. These issues were outlined in detail by Indian Cyberlaw Expert Mr. Pavan Duggal at a Seminar organized by the Indo German Chamber of Commerce on Thursday i.e. 22.6.2000.

  Mr. Pavan Duggal, has been specializing in Cyberlaw for the last four years and  , as an advocate in The Supreme Court of India, has been handling various newly emerging Cyberlaw issues and disputes. Mr. Duggal is the President of Cyberlaws.Net and is the Member, Membership Advisory Committee of The Internet Corporation for Assigned Names and Numbers (ICANN).

  Mr. Duggal warned that companies  have to be very careful while writing emails whether outside the company or within ,as those emails could be made the basis for launching a litigation in a court of law. Secure digital signatures will enable the growth of e-commerce while also providing business opportunities of becoming a Certifying Authority for digital signatures.

  At the same time ,Mr. Duggal emphasized that the electronic filing of records and the retention of information in electronic format, enabled by the IT Act, will  help in saving costs, time and manpower for the corporates.  Security issues concerning the corporate sector and definition of Cybercrimes will further enable companies to do successful e-business.

  Mr. Duggal stated that one very important omission in the Act  is that it completely misses out on the issue of Intellectual Property Rights as they apply to cyberspace and electronic information, he said. This issue is very important as the Internet is driven by innovation, he said. The IT Act  2000  makes no provisions whatsoever for copyrighting, trade marking or patenting of electronic information and data, Mr. Duggal stated. Further, the present Intellectual Property Rights legislations have been framed to apply to physical property, so these would also not provide adequate cover. In fact, there have not even been any specific provisions made as regards to rights and liabilities of domain name holders - the most basic starting point for anyone interested in e-commerce. This could be cause for confusion, Mr. Duggal added.

  Further, the IT Act  2000  does not provide any clear guidelines for regulation of the electronic payments gateway, said Mr. Duggal. This may be a major stumbling block with regards to e-commerce, especially in the banking and financial sector, he added. The payments gateway issue requires urgent action, even if by ordinance, recommended Mr. Duggal.  Mr. Duggal also stated  that the exclusion of  negotiable instruments from the applicability of the IT Act  will have a major bearing on the growth of  e-business in India. Corporates will also have to deal with the bureaucratization of the regulatory processes.

  Further Mr. Duggal also pointed out that the draconian powers given to the Deputy Superintendent of Police,  are likely to result in misuse in the context of Corporate India as   companies have public offices which would come within the ambit of "public place" under the Act . As a result, companies will not be able to  escape potential harassment at the hands of the DSP.

  One other grey area is matters related to the implementation, enforcement and jurisdiction of the Act , said Mr. Duggal. The Act  was supposed to apply to crimes committed all over the world, i.e. if a computer in India got hacked by someone in another country, but it was not clear how this would be enforced. Since the Internet was a borderless medium, cooperation between nations was absolutely essential for controlling cybercrimes, he added. Secondly, the territorial jurisdiction of the Adjudicating Officers for cybercrimes and the Cyber Regulations Appellate Tribunal have not been defined either. A new area of concern in the case of jurisdiction was WAP and Mobile-commerce - these could not strictly be defined as electronic, and so the IT Act  2000 may not apply.

A significant departure from global practice has been in the case of the liabilities of Internet Service Providers (ISPs), Mr. Duggal stated. Generally, ISPs are not in any way responsible for crimes committed by subscribers. The IT Act  2000, however, assumes that ISPs will be responsible for third party data and information, unless contravention is committed without their knowledge or unless the ISP has undertaken due diligence to prevent the contravention. It was very difficult to prove "lack of knowledge", said Mr. Duggal, and "due diligence" had not even been defined. Further, it was almost impossible for an ISP to monitor what information their subscribers were sending out over the Net, when considering the logistics involved, he added.

  Mr. Duggal however reiterated that the IT Act  2000  was just the superstructure for e-commerce, and rules and regulations were yet to be worked out. Overall, the IT Act  was an extremely important legislation, that could be expected to have a strongly positive effect on e-commerce in India, he stated.

  Mr. Duggal, who is one of the pioneers in the field of Cyberlaw, pointed out that the IT Act , 2000 is silent on the issues concerning domain names.  Domain name, the starting point for E-commerce, does not  find any mention in the IT Act . Also, the Indian Cyberlaw does not mention any aspect relating to the Intellectual Property Rights of e-businesses including copyright, trademark and patent.

  He also stated that companies will have to quickly adapt themselves with the changing trends of Cyberlaw, to strengthen their online businesses and alter their business approaches in Cyberspace.

  In addition, Mr. Duggal also made a detailed presentation on various Cyberlaw issues concerning Electronic Commerce , Domain Names & Intellectual Property Rights, Content of Websites, Internet Policies & Privacy. The Cyberlaw seminar addressed by Mr. Duggal was extremely informative and innovative.