RGNUL FINANCIAL & MERCANTILE LAW REVIEW
RGNUL-SAM CONCLAVE ON INFORMATION TECHNOLOGY LITIGATION & DATA PROTECTION IN INDIA, 2022
SPECIAL ISSUE 2022
KEEPING IT ONLINE: DEVELOPING AN ODR MECHANISM FOR INDIA’S E-COMMERCE DISPUTES
Pratham Arya & Lisa Sankrit
The authors are fourth-year students of B.A. LL.B. at Symbiosis Law School, Noida.
While the COVID-19 pandemic disrupted the traditional practices that the courts used to follow, it also paved way for innovative and novel methods of alternate dispute resolution to evolve. One such method of dispute resolution called ‘Online Dispute Resolution’ has been dealt within this paper. Even though there is a rising number of e-consumers (India is expected to have 500 million online shoppers by 2030), India does not have any ODR regulation and the shortcomings in the current mediation framework have us lagging behind in terms of motivating litigants to initiate ODR-led complaints. Uncertainty regarding inter alia the enforcement of awards, low demand for mediation, and the lack of trained mediators are a few issues that plague the mediation framework and make it an unpopular choice among litigants. Considering the fact that mediation can be suitable for the adjudication of many B2C and B2B disputes, the time is just right to make amends in order to make space for a solid ODR framework. In this paper, we aim to draw inspiration from such contemporary jurisdictions so that e-consumers have an efficacious ODR platform that is not merely a digital layer on top of existing dispute resolution methods. Thus, in a structured manner, we provide how in our opinion an ideal ODR mechanism should function both in B2C and B2B disputes.
DATA LOCALIZATION: AN ISSUE BEYOND BORDERS
The author is a Ph.D. scholar at Ram Manohar Lohiya National Law University, Lucknow.
In modern day, technology driven life, data has acquired a critical position, resulting in an increased assertion for greater control in order to achieve greater digital sovereignty. Therefore, data localization has emerged as a significant policy decision by various nations. However, the data localization approach poses severe limitations and regulatory complexities and at the same time proves ineffective in providing data security, data access and innovation. Therefore, blanket data localization policies might in turn become detrimental depending on the ground realities of each nation. The fact of the matter remains that whether localization of data in general would have any net benefit for the nation is the most pertinent consideration to be assessed.
The primary focus of this paper is to identify a balanced approach for data governance taking into consideration national sovereignty and broader global concerns. This research paper will examine the prevalent forms of data localization while highlighting the various policy considerations underlying the rising data localization surge. Thereafter, it shall evaluate the privacy, security and economic implications and costs to be born in case of such data localization. The paper provides special focus on the prevalent data regulations and data localization policies in India while assessing its potential impact and an insight into the ongoing global interplay with data localization. Lastly, the paper summarises the analysis with policy recommendations premised on the understanding that like-minded nations would work together to arrive at an arrangement that focuses on identifying a workable balance in the coming future
ANALYSING THE INTERPLAY BETWEEN END-TO-END ENCRYPTION & PRIVACY: SYMBIOTIC ASSOCIATION OR A MERE FACILITATION?
The author is a third-year student of B.A. LL.B. (Hons.) at Maharashtra National Law University, Nagpur.
“Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect.”- Bruce Schneier
Encryption is a safety wall that protects the confidentiality of data from outside snooping. End-to-end encryption is an integral feature of digital privacy that empowers users to hold their private conversations with themselves without any external interference. Though end-to-end encryptions are not fool-proof, yet they provide the safest structure for data security. With the Central government mandating social media intermediaries to reveal private conversations and their originators for curbing hate speeches, and cyber frauds, and to accelerate cyber patrolling and surveillance, privacy concerns in India have burgeoned. An argument to justify the need for a fragile nature of encryption stems from the restriction posed to enforcement and investigation agencies in conquering digital frauds, piracy, online hate speeches, terror activities, etc. Therefore, it is pertinent to re-evaluate the data protection regime in the country that resonates with the need for individual privacy and balances itself with the obligations of national security and a safe online environment. In this article, at the very outset, the author discusses the history of encryption in India and the landmark Puttaswamy judgment that revitalized the encryption debate in the country. The author, further, deals with the question that whether there is any legally enforceable right of encryption in light of different sector-specific guidelines and the new Data Protection Bill. The paper also delves into the privacy concerns ensuing from weakening encryption and excessive governmental regulation in this regard. In a nutshell, the paper holistically deals with the pros and cons of evading encryption and the author is of the view that personal privacy must not be compromised in any manner and suggests exploring alternative ways to deal with online crimes and ensure online safety rather than breaching encryption arbitrarily.
DATA LOCALISATION AND CROSS-BORDER FLOW OF DATA: BALANCING THE INCONGRUENT DIMENSION OF BARRIERS, SAFEGUARDS AND “FREE FLOW OF DATA”
Raj Shekhar & Aman Yuvraj Choudhary
The authors are fourth and third-year students of B.A. LL.B. (Hons.) respectively at National University of Study and Research in Law, Ranchi.
The growth in today’s century has been seen to go hand in hand with the globalization of society; a phenomenon of which the Internet can be seen to be a cause and a component, as well as a reflection. Data localization often refers to those policy measures which are aimed at restricting the free flow of data by limiting the physical storage and processing of data within a given jurisdiction’s boundaries. The phenomenon has started to garner a plethora of international support with many countries having adopted localization policies to combat multiple concerns over the free flow of data. However, the usage of “free flow” and “data localization” seems ambiguous owing to their antagonistic nature and has been criticized by experts citing it to be against the very spirit of the internet – connectivity without barriers. The Joint Parliamentary Committee to which the Personal Data Protection Bill, 2019 was referred has once again stirred the international debate surrounding data localization by strongly supporting its implementation. In light of these issues, this paper tries to understand the plan of action, structure and objectives of data localization by the Indian Government while simultaneously carrying out a hedonistic analysis of their overall impact. It further carries out a global comparative analysis of the existing data localization practices in other mature jurisdictions and pitches forth conducive suggestions to aid in the proper implementation of such policies without hampering the crucial element of cross-border data transfer.
ONLINE DISPUTE RESOLUTION PLATFORM FOR B2C AND B2B E-COMMERCE IN INDIA: A CRITICAL APPRAISAL
Abhay Raj & Ajay Raj
The authors are fourth and fifth-year students of BA/BBA LL.B. and BBA. LL.B. (Hons.) at Jindal Global Law School and Symbiosis Law School, Pune respectively
Online Dispute Resolution (ODR) in India is a relatively modern subfield of dispute resolution that is slowly gaining traction. While legislators and academicians have struggled to develop legal rules and policy frameworks governing cyberspace (particularly ODR), there have been a number of effective initiatives in the subfield, for instance, the UNCITRAL law proposal, and the European Union ODR proposal. Even with the effective initiatives, more study, particularly from an interdisciplinary and jurisdictional viewpoint, is needed that combines legal pluralism and cosmopolitanism, in an attempt to develop the platform while avoiding its drawbacks. Through the present paper, the author advocates for the promotion of the ODR scheme, specifically for B2C and B2B e-commerce in India. The paper heavily relies on the involvement of current dispute resolution scholarships and takes into account the seismic development in major jurisdictions. With that, the author uses a rather novel approach in the present paper and comments based on the online survey conducted amongst peers and experts. Following the data analysis, this paper identifies three main issues in the ODR scheme, in specific regard to e-commerce disputes in India: structural challenges, organisational challenges, and behavioural challenges in the scheme. The implications of the paper will be both methodological and practical.