How death of net neutrality will kill net activism

Mishika Bajpai & Anish Vohra, Students of Law, Symbiosis Law School, Noida

ABSTRACT

One of the prominent reasons behind the success of net activism has been the free flow of internet. Social media is bombarded with comments and discussions that take place online on all sorts of policies dealing with the society. Current affairs reach out to people in the fastest ways possible; making the general public much more aware than it was ever before. But this social net neutrality might come to a halt owing to the recent policy changes by the Telecom Authorities, disintegrating the unhindered access to internet. The development of right to know and right to freedom of speech and expression to its fullest will be lost somewhere in the dreary possible policy change when the operator will charge consumers for this privilege. The paper deals with the implications of this mandate and how over-regulation might hamper online networking where people impart insights, remarks and concerns in a greatly unregulated environment. The paper addresses the acute worry that the consultation paper might destroy the very nature of unhindered internet being free and open. The paper concludes on the note that such endeavors might be useful to curb notorious anti-competitive telecom operators joining hands and dominating the market and consumers. However, it is equally important to ensure that the larger consumer interest is protected by enabling internet develop in a manner where it is democratic, uniformly accessible, and with absolutely no discrimination.

INTRODUCTION

The internet has played a profound role in the daily welfare of millions of citizens of democratic India, who have relied and made good use of this significant resource due to its free access. There have been several illustrations across the world guaranteeing the right of speech and expression and receiving of knowledge through different media. Article 19 of the International Covenant on Civil and Political Rights, has granted the right to freedom of expression through any other media of his choice ((International Covenant on Civil and Political Rights, Mar. 23, 1976, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171[hereinafter ICCPR])). Even the Universal Declaration of Human Rights under Article 19 includes the right to hold opinion without interference and to seek, receive and impart information and ideas through any media, regardless of frontiers ((Universal Declaration of Human Rights, G.A. Res. 217A (III), at 71, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR] Arts. 13, 17; European Convention For the Protection Of Human Rights and Fundamental Freedoms, Art.10.  )). The outbreak of mobile phones, media player, and laptop devices has acted as a key feature in the lives of the digital citizens. If citizens can learn to network, their voices will be heard and will be productive, helping themselves to solve their own problems via technology ((Rheingold, Howard. “Using Participatory Media and Public Voice to Encourage Civic Engagement.” (2008) Civic Life Online: Learning How Digital Media Can Engage Youth. Edited by W. Lance Bennett. The John D. and Catherine T. MacArthur Foundation Series on Digital Media and Learning. Cambridge, MA: The MIT Press, 97–118; Talks, TED, 2006, Iqbal Quadir says mobile fight poverty, available at http://www.ted.com/talks/iqbal_quadir_says_mobiles_fight_poverty. last accessed on July 15, 2015)).

THE CONCEPT OF NET NEUTRALITY

Net neutrality is the idea of keeping the web free and open ((Sascha D. Meinrath and Victor W. Pickard, “The New Network Neutrality: Criteria for Internet Freedom,” (2008) International Journal of Communication Law and Policy, 12, 225-243; Timothy Wu, “Network neutrality, Broadband Discrimination,” Journal of Telecommunications and High Technology Law (2), 141-179 (2003);)). It is the way people access the internet without any discriminatory charge. This means that every website is equally available at the same access speed for every telecom service provider and the same data cost for this access is there for each site. People can use internet for accessing practically anything on the internet, be it videos, applications, voice services, search engines or email ((Rajat Gandhi, Net neutrality: Why Internet is in danger of being shackled, The Economic Times, Apr. 8, 2015, available at http://articles.economictimes.indiatimes.com/2015-04-08/news/60943272_1_net-neutrality-telecom-operators-viber last accessed on July 15, 2015)). Net neutrality had caught the attention of many when the TRAI’s Consultation Paper on Regulatory Framework for Over-the-top (OTT) administrations came out ((Id.)). Examples of OTT are Skype, Viber, WhatsApp, Chat On, Snapchat, Instagram, Kik, Google Talk, Hike, Line, WeChat, Tango, e-commerce sites (Amazon, Flipkart etc.),Ola, Facebook messenger, Black Berry Messenger, iMessage, online video games and movies (Netflix, Pandora). Today, users can directly access these applications online from any place, at any time, using a variety of internet connected consumer devices ((Consultation Paper On Regulatory Framework for Over-the-top (OTT) services, Telecom Regulatory Authority of India (hereinafter TRAI), May 27, 2015, at 4, available at http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf last accessed on July 15, 2015)). If such a regulation is codified as a law, it could substantially reduce investment incentives, curtail innovation, and eventually harm consumers. Such a mandate would erode incentives to provide broadband Internet access and could thwart innovative applications or services from ever being developed. The recommendations on the subject are yet to be declared, however, there is a big possibility of curbing free access to the internet that the public has been enjoying over all these years. It would also, severely affect the freedom of expression to reach beyond the media to ‘a more engaged and expressive citizenry,’ and pushed governments to pay more attention to the views that citizens express. If the broadband organizations are permitted to charge content suppliers higher for quicker web administrations, it would abuse the individuals who can’t bear to pay such rates ((Id.)). This would mean disproportionate accessibility of data – a fundamental resource for a democratic world. Therefore, a pro net neutrality battle was witnessed to ensure unhindered internet in India underlines the significance of the web. If it be for the TRAI’s Consultation paper then alongside restricting our capacity to practice free expression it would also constrain the web that would ultimately counteract flexibility. Preserving an open Internet that is available to innovators, paying little heed to their size or riches, will advance a lively and focused commercial center where buyers have extreme control over the substance and administrations conveyed through their Internet connection. Policy cannot be applied without context, showing how and why it is relevant; therefore, it is equally important to study how other countries around the globe are addressing to this issue. These countries known for regulating e-freedom ((Jayadevan PK & Neha Alawadhi, Enact laws similar to those of pro-net neutrality nations like Chile, Brazil, US, say experts, The Economic Times, ET Bureau, Apr 16, 2015, available at http://articles.economictimes.indiatimes.com/2015-04-16/news/61217892_1_net-neutrality-indian-angel-network-internet-and-mobile-association last accessed on July 15, 2015))in a manner that’s most beneficial to the public have kept it free and open, curtailed by government regulation that interferes with the free market ((Sascha Meinrath & Victor Pickard, ‘Transcending Net Neutrality: Ten Steps Toward an Open Internet’, (2008 ) 12 INTERNET LAW 1, 19)). Internet being the third most complained service open access networks to the most vibrant competitive markets around the world.

THE INTERMINGLING OF NET ACTIVISM AND NET NEUTRALITY

The force of the internet is such that it significantly amplifies what is in question in considering how that balance ought to be struck. It is not denied that a slander surged in on the web may do huge harm to a man’s notoriety. However, Articles 14 and 21 are also violated since there is no intelligible differentia between the individuals who utilize the web and the individuals who by words talked or composed utilization different mediums of correspondence ((Shreya Singhal v Union of India, (2015) 5 SCC 1 at 52, 127)). To reject someone in light of the fact that he/she utilizes a specific medium of correspondence is itself an oppressive and discriminatory object and would fall foul of Article 14 regardless ((Id. at 147)). In spite of the fact that Internet interchanges may have the transient qualities of hearsay with respect to accuracy, they are conveyed through a medium more pervasive than print, and hence they have tremendous power to harm reputation. When a message enters the internet, millions of people worldwide can gain access to it ((Crookes v Newton [2011] 3 SCR 269 at §37)). Regardless of the possibility that the message is posted in an exchange gathering frequented by just a modest bunch of individuals, any of them can republish or repost or “retweet” the message by printing it or, as is more probable, by forwarding it instantly to an alternate discussion forum. Furthermore, if the message is adequately provocative, it might be republished over and over. The exceptional limit of the Internet to recreate perpetually any defamatory message loans trustworthiness to the idea that reality infrequently makes up for lost time with an untruth. The issue for slander law, then, is the manner by which to secure disrepute without stifling the capability of the Internet as a medium of open talk ((Lyrissa Barnett Lidsky, “Silencing John Doe: Defamation & Discourse in Cyberspace” (2000), 49 Duke LJ 855, at 863-64.)). One of the basic precepts of our general public is that citizens have the privilege to address issues they have with government arrangements in a peaceful way. The computerized age has overhauled this right, as sites help make and flow electronic petitions to pick up backing for changes that people feel are required all through society.

For a large number of youthful Indians today, the web is not an extravagance but rather a need. In a nation overflowing with political, social and monetary disparities, the internet is a freeing universe that levels progressive systems, makes space for development and permits unadulterated and thoroughly free articulation of discourse. It is a motivation behind why some of India’s best new companies likewise have required the web to be kept impartial ((A. Soni, How people power took on big business in the fight for net neutrality in India, The Guardian, May 25, 2015, available at http://www.theguardian.com/technology/2015/may/25/india-net-neutrality-people-power last accessed on July 15, 2015)). Here is when participative media that is available online is advantageous to situations like these. The object of such media is to empower democratic regimes where they seem to be missing; the purpose is to go beyond the mechanics of posting to work with posting an opinion—and to connect that rhetoric by playing the role of a citizen in a democracy.  Internet has seriously modernized the way people of India have interacted and exercise their freedom of speech and expression and receiving information as a part of their fundamental rights. How net neutrality advances the same, can be understood by the following example –

Consider the utilization of twitter or blogs or Facebook posts around the world over today. A straightforward idea providing individuals to express their opinions and experiences regardless of physical space, capital, or political fringes, unlimited by any confinements. Now, imagine a post that contains a comment on a public policy or how the administration should mull over undermining, maybe an upholding of philosophies contrary to current policy. Under certain proposed Legislation, the Government could exploit official forces to bring down the post and even close down the site. This strategy postures genuine dangers to our opportunity of expression. With the freedom and capacity to channel content as it achieves the web, administrations could keep the transmission of option ideologies to the public, permitting the administration to practice expansive controls over the data that we get through the web.

Keeping up net neutrality would proceed with permitting people’s access to contending perspectives from debating and settling on educated choices on a mixed bag of subjects ((Sascha D. Meinrath & V. W. Pickard, The New Network Neutrality: Criteria for Internet Freedom, (2008) Int’l J. of Commc’ns L. & Pol’y 225, 237-239)); hence, smoothening the progress of realization of cultural, civil and political rights. And this is how participatory media ((Arnstein, Sherry R. “A ladder of citizen participation.” (1969) J. of the American Institute of Planners, 35:216–24))helps in broadening the democratic horizon and enables cultural production and authentically democratic political influence. If broadband and rapid Internet contacts each local, then each of them would really have the ability to join in, and advantage from, the overall information change and add to a balanced improvement of the nation. Internet facilitates that inviolable right to freedom of speech and expression that has been granted to Indian citizens under Article 19 (1)(a) of Constitution of India. There have been a plethora of judgments declaring the right to express and the right to know ((Tata Press Ltd. v. Mahanagar Telehone Nigam Ltd. (1995) 5 SCC 139))as major facets of our constitutional foundations. This important facet of media breaks down traditional barriers be it geographical or jurisdictional constraints ((Maneka Gandhi v. Union of India, AIR 1978 SC 597)), and facilitates free speech and exchange of ideas like no medium has before ((M. Divan, Facets of Media Law, (1st Edition, Eastern Book Company, 2010) 22)). The communication of ideas may be through any medium, electronic ((Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal, AIR 1995 SC 1236)), audiovisual ((Tata Press, supra note 19 at 156)), newspaper ((Sakal Papers v. Union of India, AIR 1962 SC 305; Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106))or magazine ((S. Raghgarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.)). In this age of information and accountability, where the live telecast of legislative proceedings has become mandatory ((Gazette Notification No. 16(1) Cable /2005 E-III dated 25.02.2005 issued by Prasar Bharati)), public interest also seeks discussions stemming from the members of a democratic society who should be sufficiently informed as they may influence intelligently the decisions which may affect themselves ((Attorney General v. Times Newspaper Ltd, (1973) 3 All ER 54)). It was rightly held that Right of Information is facet of ‘speech and expression’ as contained in Article 19(1)(a) of Constitution of India ((Peoples Union for Civil Liberties v. Union of India, AIR 2004 SC 1442 at 1453; S.P. Gupta vs. Union of India, 1981 Supp SCC 87)).

Government, in the activity of its Executive power by method for a policy decision, makes an entity or divests its capacities, which may have an orientation upon the Fundamental Rights, for a private body or exchange of open substance to a private body, in such an inevitability, the capacities prior released by the Government can’t be termed as absolutely a private capacity. Such an understanding would be needed to ensure that this privilege is flexible for expression, on the web or elsewhere, so as to guarantee satisfaction in human rights ((S.P. Gupta, supra note 28 at 273)). Once advanced opportunity is traded off, the predetermination of every site, regardless of its size or quality, will be dictated by telecom administrators giving access to Internet. Media new businesses or little autonomous media endeavors will obviously be prompted for setbacks in which telecom organizations are engaged to make quick and moderate paths or segregate content for business reasons. In the event that they lose their opportunity to make and offer substance, these little media players are subject to shutdown as a result of their failure to shoulder the extra weight of particular treatment. Net activism will also take a back seat if the public is not aware of the current events and comment on recent policies online for the others to read, thereby eliminating the thread of comments and opinions.  A few TV news stations bit the dust simply because they couldn’t bear the cost of the carriage expense charged by link and DTH administrators. The proposition of getting rid of unhindered internet, as mooted by the TRAI paper, raises the likelihood of media sites excessively falling prey, making it impossible to the carriage charge model. If the TRAI proposition were to be acknowledged, India will have all the more control in the same way as China, which has infamously controlled web access, than with the US, which as of late received a “hard law” to secure unhindered internet. Accommodating this sudden push some telecom and Internet organizations have made preparations for “zero rating arrangements” (or differential rating for distinctive locales, applications or administrations). The requirement for unhindered internet oversight to guarantee the diversity of content and check any endeavor to throttle streets to get to data has arisen. The big news portals that could earlier bear the cost of the carriage charge requested by telecom organizations will now be compelled to move their spending from news social occasion to dispersion expenses, influencing the nature of news-casting. The defenselessness of set up media houses is apparent from the experience of the internet.org plat-structure advanced by Facebook. They are under pressure to remain focused stage keeping in mind that they turn out to be less open on the web. The thought of making the Internet less open will likewise have security suggestions as well. The security of writers may be traded off as telecom organizations will do “deep packet inspection” that will include profound bundle investigation as a component of their business arrangement to guarantee rapid access to certain site and back off access to others.

Readers and viewers will be denied of decision in the post-net neutrality time as they will have entry just to those media locales that are clients of the telecom administrator. Meanwhile, sites of little distributers and territorial press media players are prone to vanish from the radar of Internet clients. As the Internet loses its current dynamism and openness, it will get to be harder for new contestants to be seen regardless of the value of their advancements. The disintegration of unhindered internet would discourage media startups and as well as settled news associations.

CONCLUSION

Thus, there is tremendous chance to make great utilization of innovation on the guided way of decency standards to accomplish innovation and free discourse of speech and expression. The authors feel that if the issue of unhindered internet is given equivalent significance alongside issues like rivalry, openness, security and accommodation, it would not be hard to understand the objective set by the law makers. Notwithstanding the way that India has the sizeable resources to accomplish the authorization of this privilege, the deficiency of base is an obstacle to the same. Since this advancement has surfaced during an era when telecom organizations are going into system sharing understandings and tie-ups for offering free access to specific sites and versatile applications, these exercises have raised significantly bigger attentiveness toward the unreasonable rivalry guard dog. The Competition Commission of India needs to make stringent strides in deciding any conceivable monopolistic or tricky dealings. It ought to keep a nearby watch on whether telecom and web access suppliers are taking part in hostile to aggressive business rehearses by giving particular treatment to choose versatile applications and sites. Gapping the advanced partitions will be conceivable with fruitful and effective arrangements by the Government considering the perils, externality and opportunity costs. The thought is to acquire equality amongst administration suppliers, in order to urge the new businesses to contend with the greater ones. If legislature is unable to manage the cost of giving information for free, then taking into consideration zero rating for those locales will again bring about differential treatment. When the net impartial methodology is received, even the free Wi-Fi model augured, would work well if the customers are given some piece of their bundle without charge, for reasonable use. As a result of a suspicious apprehension of meddling with the point of preference that the Internet has now brought the foremost focal points by its continuing augmentation, it is fairly favorable that the law ought to encourage and support such advances, not attempt to constrain or frustrate them by clashing and lacking. Conversely, neither has the enactment sufficiently developed to know the ideal measure of intercession that is required in order to make this human right flourish nor are the State Governments in concordance with their web arranges. It will likewise be intensely significant learning from the experiences and mix-ups of different nations while confining free web to all. The cost of Internet combination in India is broadly high. An effective computerized consideration philosophy gives an approach to full enthusiasm for a propelled society. Picking up a superior comprehension of how this new market method functions will be fundamental in the propelling years considering the anticompetitive lead by telecom administrators. Additionally, the issue of unhindered web in the whole deal can undermine reputation of open interest based Internet telephony and relative distinctive applications as all the moderate Internet suppliers may start requesting business and without business understandings they may decline to convey the substance and give wanted nature of administration. Unhindered internet would help ensure the Internet’s free and open character in India and that a deviation from the same will abuse citizens’ fundamental right to speech and expression as well as the fundamental right to know.

Net neutrality report upholds key principles

Department of Telecom after meeting over 45 organisations including Facebook, Google, Flipkart, Amazon, Paytm, Viber and Skype and telecom service providers and after obtaining views from the general public has released its report on net neutrality in India. Major recommendations of the report are as follows;

The Committee unhesitatingly recommends “the core principles of Net Neutrality must be adhered to.”

The international best practices along with core principles of Net Neutrality will help in formulating India specific Net Neutrality approach. India should take a rational approach and initiate action in making an objective policy, specific to the needs of our country. The timing for this is apt, taking into consideration the exponential growth of content and applications on the Internet.

Innovation and infrastructure have both to be promoted simultaneously and neither can spread without the other. The endeavor in policy approach should be to identify and eliminate actions that inhibit the innovation abilities inherent in an open Internet or severely inhibit investment in infrastructure.

The primary goals of public policy in the context of Net Neutrality should be directed towards achievement of developmental aims of the country by facilitating “Affordable Broadband”, “Quality Broadband” and “Universal Broadband” for its citizens.

User rights on the Internet need to be ensured so that TSPs/ISPs do not restrict the ability of the user to send, receive, display, use, post any legal content, application or service on the Internet, or restrict any kind of lawful Internet activity or use.

OTT application services have been traditionally available in the market for some time and such services enhance consumer welfare and increase productivity. Therefore, such services should be actively encouraged and any impediments in expansion and growth of OTT application services should be removed.

There should be a separation of “application layer” from “network layer” as application services are delivered over a licensed network.

Specific OTT communication services dealing with messaging should not be interfered with through regulatory instruments.

In case of VoIP OTT communication services, there exists a regulatory arbitrage wherein such services also bypass the existing licensing and regulatory regime creating a non-level playing field between TSPs and OTT providers both competing for the same service provision. Public policy response requires that regulatory arbitrage does not dictate winners and losers in a competitive market for service provision.

The existence of a pricing arbitrage in VoIP OTT communication services requires a graduated and calibrated public policy response. In case of OTT VoIP international calling services, a liberal approach may be adopted. However, in case of domestic calls (local and national), communication services by TSPs and OTT communication services may be treated similarly from a regulatory angle for the present. The nature of regulatory similarity, the calibration of regulatory response and its phasing can be appropriately determined after public consultations and TRAI’s recommendations to this effect.

For OTT application services, there is no case for prescribing regulatory oversight similar to conventional communication services.

Legitimate traffic management practices may be allowed but should be “tested” against the core principles of Net Neutrality. a. General criteria against which these practices can be tested are as follows: a) TSPs/ISPs should make adequate disclosures to the users about their traffic management policies, tools and intervention practices to maintain transparency and allow users to make informed choices. b). Unreasonable traffic management, exploitative or anti-competitive in nature may not be permitted. c). In general, for legitimate network management, application-agnostic control may be used. However, application-specific control withinthe “Internet traffic” class may not be permitted. d). Traffic management practices like DPI should not be used for unlawful access to the type and contents of an application in an IP packet. e). Improper (Paid or otherwise) Prioritization may not be permitted. f). Application-agnostic congestion control being a legitimate requirementcannot be considered to be against Net Neutrality. However application-specific control within the “Internet traffic” class may be against the principles of Net Neutrality. g). Mechanism to minimize frivolous complaints will be desirable.

Traffic management is complex and specialized field and enough capacity building is needed before undertaking such an exercise.

CDN is an arrangement of management of content as a business strategy and does not interfere with others business. Making available one provider’s CDN to others on commercial terms is a normal commercial activity. It should at best be covered under law related to unfair trade practice.

Managed services are a necessary requirement for businesses and enterprises, and suitable exceptions may be made for the treatment of such services in the Net Neutrality context.

This Committee refrains from making any specific recommendation on search-neutrality, however, flags this issue as a concern for public policy.

Tariff plans offered by TSPs/ISPs must conform to the principles of Net Neutrality set forth in guidelines issued by the Government as Licensor. TRAI may examine the tariff filings made by TSPs/ISPs to determine whether the tariff plan conforms to the principles of Net Neutrality.

Content and application providers cannot be permitted to act as gatekeepers and use network operations to extract value in violation of core principles of Net Neutrality, even if it is for an ostensible public purpose.

A clause, requiring licensee to adhere to the core principles of Net Neutrality, as specified by guidelines issued by the licensor from time to time, should be incorporated in the license conditions of TSP/ISPs. The guidelines can describe the principles and conditions of Net Neutrality in detail and provide applicable criteria to test any violation of the principles of Net Neutrality.

New legislation, whenever planned for replacing the existing legal framework, must incorporate principles of Net Neutrality. Till such time as an appropriate legal framework is enacted, interim provisions enforceable through licensing conditions as suggested by the Committee may be the way forward.

National security is paramount, regardless of treatment of Net Neutrality. The measures to ensure compliance of security related requirements from OTT service providers, need to be worked out through inter-ministerial consultations.

Suggested enforcement process is as follows: (i) Core principles of Net Neutrality may be made part of License conditions and the Licensor may issue guidelines from time to time as learning process matures. (ii) Since Net Neutrality related cases would require specialized expertise, a cell in the DoT HQ may be set up to deal with such cases. In case of violations, the existing prescribed procedure may be followed. This would involve two stage process of review and appeal to ensure that decisions are objective, transparent and just. (iii) Tariff shall be regulated by TRAI as at present. Whenever a new tariff is introduced it should be tested against the principles of Net Neutrality. Post implementation, complaint regarding a tariff violating principle of Net Neutrality may be dealt with by DoT. (iv) Net Neutrality issues arising out of traffic management would have reporting and auditing requirements, which may be performed and enforced by DoT. (v) QoS issues fall within the jurisdiction of TRAI. Similarly reporting related to transparency requirements will need to be dealt with by TRAI. TRAI may take steps as deemed fit.

Enforcing Net Neutrality principle is a new idea and may throw up many questions and problems as we go along. For this purpose, an oversight process may be set up by the government to advise on policies and processes, review guidelines, reporting and auditing procedures and enforcement of rules.

Capacity building through training, institution building and active engagement with stakeholders is essential. In order to deal with the complexities of the new digital world, a think-tank with best talent may also be set up.

Standard Form of Contract: A Case Study of Flipkart

Sahil Jain & Pradyumna Kibe ((Students of Law, Institute of Law, Nirma University, Ahmedabad)).

Standard Form Contracts are agreements that employ standardized, non-negotiated provisions, usually in pre-printed forms.  These are sometimes referred to as “boilerplate contracts,” “contracts of adhesion,” or “take it or leave it” contracts. The terms, often portrayed in fine print, are drafted by or on behalf of one party to the transaction – the party with superior bargaining power who routinely engages in such transactions.  With few exceptions, the terms are not negotiable by the consumer ((What are Standard Form Contracts)). They are basically used where the seller cannot enter into a contract with everyone and each one wants the contract according to him/her. It means when the party is having numerous transaction to make then Standard Form Contract comes into picture. Like in the railway sector, there are same terms and conditions for everyone. It is a contract of adherence.

There are two issues which arise from this contract. Firstly, the parties are not at parity and seller is having the advantage and is one step forward unlike buyer who has no other option other then accepting it or leaving it. Secondly, there is no bargaining power available to weaker party i.e. buyer. He /She cannot negotiate with the seller. Lord Denning MR in Thornton vs. Shoe Lane Parking Ltd. (([1971] 2 QB 163: (1971) 1 All ER (CA).)), commented on Standard Form Contracts as;

“He cannot alter those terms or even discuss them; they are there for him to take or leave. He therefore does not undertake the laborious and profitless task of discovering what the terms are.”

Flipkart, a company registered in Singapore, was founded back in 2007 by IIT-D alumni and former Amazon employees Sachin Bansal and Binny Bansal. The trend of e-commerce was not developed at that point of time, while, in the other parts of the world it was well settled. Flipkart started its business with selling books online, same as what Amazon did. With the time, as the internet users in India were still increasing with great speed, Flipkart became the most reliable place for online shopping. The company works on a marketplace model, where sellers and buyers can meet online and transact with each other, it wasn’t able to come in direct retailing as foreign players were not allowed in retail market and Flipkart, a company registered in Singapore and most of their shareholders were of abroad. Flipkart is mainly known for its customer friendly approach and hence is the market-leader and reliable e-commerce websites.

COMPARISON TO PROTECTIVE DEVICES

As standard form contracts have evolved as an instrument for making the transactions on a large level, faster and easier, it has led to the exploitation of weaker parties, mostly buyers or the receiver of services.  The court, therefore has on various occasions has evolved protective devices to look after consumers. Till now, there has been a total no. of seven devices by developed. They are:

  1. Reasonable notice
  2. Notice should be contemporaneous with the contract
  3. Theory of fundamental breach
  4. Strict construction
  5. Liability in tort
  6. Unreasonable terms
  7. Exemption clauses and third parties

These protective devices are subject to study in a standard form contract because if any breach arises, the compensation should be claimable.

Reasonable notice

In Henderson vs. Stevenson (([1875] 2 Sc & Div 470: (1875) 32 LT 709 (HL).)), it was held that there should be a notice to the other party accepting the contract about the terms and conditions. On the e-commerce websites or on the softwares of common use, there is always some tab like ‘I Accept’. When the website or the software firm takes one to such a page, the condition of reasonable notice is fulfilled.

When, a customer gets involved in a transaction with Flipkart, before confirming the order it shows a similar tab as other websites and the words ‘Terms of Use’ and ‘Privacy Policy’ are respectively hyperlinked. So, it can be hence be confirmed that Flipkart gives a chance to its user to go through ‘Terms of Use’ and ‘Privacy Policy’ before getting bound to a legal agreement.

Notice should be contemporaneous with the contract

This means that whenever the terms & conditions are produced before the acceptor, it should be before the contract is formed. The acceptor does not have power to bargain the terms and conditions, so then, they should be always being provided beforehand otherwise it would result to great injustice to the acceptor and it will break the essence of contract which is the ‘Principle of Party’s Autonomy’.

In our case, Flipkart provides the Terms of Use before getting into any kind of transaction with the buyer. But, when it comes to Flipkart stating in its para 7 of the Terms of Use document that,

“ACCESSING, BROWSING OR OTHERWISE USING THE SITE INDICATES YOUR AGREEMENT TO ALL THE TERMS AND CONDITIONS UNDER THESE TERMS OF USE, SO PLEASE READ THE TERMS OF USE CAREFULLY BEFORE PROCEEDING. By impliedly or expressly accepting these Terms of Use, You also accept and agree to be bound by Flipkart Policies (including but not limited to Privacy Policy available on http://www.Flipkart.com/s/privacypolicy) as amended from time to time.

This does not amount to contemporaneous notice provided by Flipkart. As, no one can read the documents like Terms of Use and Privacy Policy before accessing the website.

Theory of fundamental breach

In contract there are some duties (fundamental duties) which are there in contract. They are treated as the heart and soul of the contract. If they are not there then the whole contract is a waste and is of no use.

Taking the above statement into consideration Flipkart is not taking it into its account. In one of the terms and conditions for the Flipkart i.e. Platform for Transaction and Communication (point number 4 of terms and conditions), they are not and cannot be a party to or control in any manner any transaction.

  1. Flipkart does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance of such commercial/contractual terms between the Buyers and Sellers.
  2. Flipkart is not taking responsibility for any non-performance or breach of any contract entered into between Buyers and Sellers. Flipkart cannot and does not guarantee that the concerned Buyers and/or Sellers will perform any transaction concluded on the Website. Flipkart is not even mediating or resolving any dispute or disagreement between Buyers and Sellers.
  3. Flipkart holds no right, title or interest over the products nor Flipkart have any obligations or liabilities in respect of such contract entered into between Buyers and Sellers. Flipkart even take no responsibility for unsatisfactory or delayed performance of services or damages or delays as a result of products which are out of stock, unavailable or back ordered.
  4. At no time Flipkart hold any right, title or interest over the products nor shall Flipkart have any obligations or liabilities in respect of such contract.

Flipkart is even not having responsibility for unsatisfactory or delayed performance of services or damages or delays as a result of products which are out of stock, unavailable or back ordered.

It means there fundamental duty to control a transaction is totally against this theory i.e. the Theory of Fundamental Breach. They are not ready to take the responsibility of the transaction in any manner. It’s totally against the exception for the standard form of contract.

Strict construction:

In many cases, to benefit the weaker party, the courts of justice have regularly strictly interpreted the exemption clauses. In cases, when there lies a single point of ambiguity the courts gives its favour to the weaker party. It is also very important to give favour of such ambiguity to the weaker party as it is like a flank kept upon by the proposer in its standard form contract and especially in the exemption clause, which can be considered as a most important clause in any contract.

Flipkart also mentions many exemption clauses in its documents. Can there be flank open? But though going after strict interpretation of exemption clause, the theory of fundamental breach can also be taken into consideration.

Liability in tort:

Even when there can be nothing found in exemption clause, one can tend towards moving to claim of tortious liability in its non-contractual liability. For example, as happened in White vs. John Warrick & Co. Ltd. (([1953] 2 All ER 1021: (1953) 1 WLR 1285 (CA).)), the defendants though were exempted by its contractual terms, but the court gave the compensation to plaintiff under the tort of negligence.

Exemption clauses and third parties:

This says that one third can be held liable for the contract between the two contracting parties. The same is claimed by Flipkart in its documents as when a buyer buys a product from Flipkart, there is no contract between Flipkart and buyer but instead a contract is formed between the buyer and seller. The Flipkart only acts as a platform for the buyers and sellers to interact.

Under heading of ‘Platform for Transaction and Communication’ all the clauses exempts Flipkart from any liability arising out of the transaction between the buyers and sellers. Although it is neither a party to contract, nevertheless it owes a responsibility if any breach occurs.

COMPARED TO OTHER PLATFORMS

There have been many complaints to Flipkart about them not taking the responsibility of the transactions performed by the sellers. But as Flipkart in its Terms of Use clearly mentions that it is just a platform for buyers and sellers to come up and transact it with each other, the Flipkart does not get in contact with any of the buyer and exempts itself from any liability occurring therein.

Under heading of ‘Platform for Transaction and Communication’ all the clauses exempts Flipkart from any liability arising out of the transaction between the buyers and sellers. Considering it holding as an important market player and leader of e-commerce industry, making itself off the hook it is not practising customer friendly behaviour.

One customer of the same website placed an order for a combo of wireless mouse and keyboard and was given an estimated delivery time of 10 days. Until the 8th day of delivery, his order was not shipped. After contacting Flipkart’s support, he was assured that the order would be delivered by estimated date. The order was not delivered till 13th day and it was cancelled automatically by the company and refund was directed to the wallet service of the same person. The customer support replied that the product was out of stock and hence was not able to be delivered, while the product was still in stock as was shown on the website. The company got its hand out and said that they could not help the customer as the seller didn’t have the product ((Flipkart screwed me over, Here’s How They Could Stick It To You As Well)). Now, where is the company has gone here? Why should Flipkart be exempted now from the liability? There lies a responsibility of the company, in this competitive market not exempt itself from the liability and practice customer friendly behaviour.

There also has been complaint against Flipkart that they cancel the order by themselves if there is price hike of the same product scheduled next day. Now, again of Flipkart is not getting into the contract, how can they cancel it? Is the customer again to be fooled by the sellers and the marketplace? ((Ibid))If Flipkart is working as a marketplace, the buyers pay the sellers consideration through this platform; shouldn’t Flipkart be equally responsible to the buyers? Yes, it should be made liable otherwise the standard form contracts made between visitors and the marketplace would not hold strong.

When, Flipkart is compared to its competitor Amazon, Amazon has more of a customer friendly approach and accepts its responsibility as a market place. If there has been a refund problem on Amazon i.e. the seller does not make the refund in 3 days, customer can avail ‘A to Z Guarantee Claim’ in which Amazon to promise to stand with the customer to help him recover the refund ((Terms, Contract Law, Consumer Rights in e-commerce)). While on the other hand Flipkart in its clause 3 says ‘Flipkart shall not and is not required to mediate or resolve any dispute or disagreement between Buyers and Sellers.

Xiaomi can now sell its phones in India

A division bench of Justice Pradeep Nandrajog and Justice RK Gauba of Delhi High Court allowed Xiaomi Technology India Pvt. Ltd to import and sell its phones in India till January 8. However, Court made it clear that Xiaomi can sell only those devices in India, which use chipsets which are running on Qualcomm processors, a licensee of Ericsson said the Court.

Earlier A Single Bench of Delhi High Court passed an order banning Xiaomi smartphones in India due to patent infringement complaints by Swedish telecom giant Ericsson. The present order of Delhi High Court also extended to e-commerce website Flipkart.com, which had an exclusive arrangement with Xiaomi for flash sales of its handsets in India.

Xiaomi Technology India Pvt. Ltd challenged the order passed by the Single Bench which banned the sale of its handsets here in India, saying it has not infringed Ericsson’s patents as Qualcomm has obtained a licence from the Ericsson for its patented technology.

The bench, while ‘striking a balance’ between the rights of Ericsson and Xiaomi, allowed the Chinese firm to sell its Qualcomm chipset-based devices while directing it to deposit Rs 100 per device imported in the name of Registrar General of the Delhi High Court.

In the present order, Court also asked Xiaomi Technology India Pvt. Ltd that, imports made in January 2015 would likewise be disclosed by way of an affidavit and Rs 100 per device deposited in the name of Registrar General of this court by February 3, 2015. However, interim ban on import and sale of Xiaomi devices which run on other processors or chipsets shall continue, the court clarified.

E-commerce covered under Consumer Protection Act

Minister of State for Food and Consumer Affairs Raosaheb Patil Danve while replying to a query in Lok Sabha that, whether there is any proposal to bring e-commerce operations under the Consumer Protection Law in view of complaints of cheating and other malpractices by such companies said in a written reply that, E-commerce operations are already covered under the Consumer Protection Act, 1986 and the Central Government is not facing any loss in indirect tax revenue due to expansion of online retail business.

Minister also pointed that, Goods which are imported/manufactured are cleared on payment of duty of customs/central excise, as the case may be, at the time of import/clearance from the factory. Therefore, as far as the Central Government is concerned, there is no loss to indirect tax revenue due to expansion of e-commerce”.

The Consumer Protection Act provides for better protection of consumers interest. Under the law, consumer forums have been set up for the settlement of disputes.

Under the provisions of the Consumer protection Act, “consumer” means any person who;

  1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
  2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ‘hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation – For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment

In order to further strengthen this law, the government is planning to introduce amendments to the Consumer Protection Act (CPA) 1986 in the ongoing winter session of Parliament.

Changing trends in the field of Alternate Dispute Resolution

Emergence of Online Alternate Dispute Resolution (ADR)

Prerna Khatri, Research Associate

Arbitration and conciliation as a means of alternate dispute resolution have been serving as an effective means of resolving dispute rather than resorting to the rather stringent and tedious litigation procedure. It serves as a means of peaceful and harmonious settlement between the conflicting parties by submitting the dispute to a neutral and unbiased person commonly known as the arbitrator/mediator/conciliator. This method proved to save time, money and effort and became hugely prevalent in all sectors such that it drove the legislators to amend the redundant 1940 enactment to mould it to suit the needs of the current society. The Act of 1996 incorporated international commercial arbitration to keep up with the globalisation of trade and commerce and economic liberalisation. The Act of 1996 paved way to resort disputes of an international nature. Considering that ‘trade’ was not merely restricted within the borders of a country, the enactment formulated rules for international commercial arbitration.

Though the term ‘commercial’ has not been expressly defined in the Act, it can be understood as, ‘Any activity or service in which modern business would be lubricant for the wheels of commerce is commercial.’ ((Fateh Chand V. State of Maharashtra AIR 1977 SC 1825 ; R.M. Investment & Trading Co. V. Boeing Co., AIR 1994 SC 1136))The Act has merely dealt with the immediate changes in the field, however, with the growth of technology and e-commerce, everything is gradually shifting to an online portal. The technology has developed so swiftly, that everything is now possible sitting in one place and available at our doorsteps. Not only is it restricted to shopping or other services, but also, there seems to be a paradigm shift with respect to online alternate dispute resolution. Various portals have already begun providing such services whereby the conflicting parties can choose their own arbitrator from a list provided, upload the relevant documents online, conduct the proceedings online as well as even record the proceedings for their future transactions.

This paper is an attempt to explore the changes in the field of alternative dispute resolution with the emergence of online dispute resolution; the laws that play an important role and the possible changes that will be required in the existing laws.

CONCEPT OF E-COMMERCE

First, it is essential to understand what is meant by e-commerce. It is a type of industry which uses computer networks to enter into transactions of buying and selling. The idea behind using internet as a business tool is to make services available to people at the click of a finger. People are largely dependent on the internet and making services such as clothes, books, food, cosmetics etc available at one’s doorstep, have increased the dependency of people on their online portals. Websites such as Flipkart, Myntra, Jabong, Makemytrip, Amazon, Redbus etc have been instrumental in causing an immense growth in the field of e-commerce.

Online means of dispute resolution has largely been unexplored in India mainly because of the existing mechanisms of judicial practice, issues of jurisdiction and enforcement. It can be seen slowly emerging but is yet to formulate rules and principles governing it. The following content aims to understand the growth of online dispute resolution and the current laws in picture.

GROWTH OF ONLINE ALTERNATE DISPUTE RESOLUTION IN INDIA

The concept of online dispute resolution in India is still taking its baby steps. It has entered the market and is growing prominence day by day. The idea has been adopted by the one followed in the European Union and the major reasons why conflicting parties are resorting to online dispute resolution is mainly because it is faster and much more cost effective. Since international trade is on the rise and most of the communication and legal formalities are complied with through the internet, communication in person has taken a backseat; to the extent that contracts are also drafted and signed online. When everything is done online, it would be easier to resolving the dispute by the same means.

This concept was recognized by the Supreme Court in Shakti Bhog V. Kola Shipping Ltd ((AIR 2009 SC 12)). and Trimex International V. Vedanta Aluminium Ltd (([2010] 3 SCC 1)). wherein it observed that online dispute resolution can arise out of either,

i)                    An online arbitration clause in a normal contract; or

ii)                  By means of an electronic contract (e-contract)

Considering these two alternatives, the laws that would immediately come into picture are, The Arbitration and Conciliation Act, 1996 to govern the arbitration proceedings and The Information Technology Act, 2000 to deal with the technological aspects. It is extremely important that the parties completely understand the nature of such agreement mainly because in arbitration and conciliation proceedings, what is laid down in the agreement will standing binding. It is only from the agreement do the arbitrators derive authority and this will apply only to the extent of what is contained in it ((Chauthmal V. Bhagwan Das AIR 1973 Bom. 337)).    

METHODS OF ONLINE DISPUTE RESOLUTION

There are mainly two methods of online dispute resolution complied in general by countries worldwide, they are categorised into

I)    Consensual

           i.      Automated Negotiation

         ii.      Assisted Negotiation

II)    Adjudicative

CONSENSUAL

i)                    Automated Negotiation

According to this method, technology takes over most parts of negotiation. It is also called the Blind Bidding system which follows the pattern of an auction which is designed to settle economic disputes. It has two forms,

  1. a.      Double Blind Bidding –  Where a single monetary issue is discussed between two parties
  2. b.      Visual Blind Bidding- Which can be applied to negotiations between any number of parties and issues

This kind of negotiation is useful mainly in the starting stages of a business or probably when the disputes are between insurance companies where the dispute involves money and the conflicting parties find it rather easier to settle it through a means which is faster and cost effective.

ii)                  Assisted Negotiation

As the term suggests, in this method, the technology merely acts as a mediator. It assists the negotiation and processes information so as to provide advice. They are operated in such a manner so as to provide assistance to the parties by means of a third party or software. The major advantage of such process is that it is fast, user friendly and informal.

ADJUDICATIVE – ONLINE ARBITRATION

It is necessary to understand that such method of dispute resolution through an online portal is not forbidden by law. It merely provides a user friendly and less expensive means of arbitration by letting technology come into play. The only thing that is relevant here is to draft a strict regulatory framework whereby the benefit is derived to the fullest and the dispute between the conflicting parties is actually settled rather than prolonging it. Technologies such as Skype or Google Hangouts are very common in this regard. Here, documents are uploaded online, proceedings are conducted by means of a video conference and to the extent that the parties can even obtain a recorded footage of the same. The world is shrinking with technology and dispute resolution is not far behind.

PURPOSE OF ONLINE DISPUTE RESOLUTION

As per the most recent statistics by the Law Commission there are 57,179 pending cases in the Supreme Court as on 30th June 2011 and 42, 17,903 pending cases in the High Court as on 30.09.2010 ((Available at http://pib.nic.in/newsite/erelease.aspx?relid=73624)). The position in subordinate and lower courts is even worse where there is an estimated of 2 crore backlog of cases and the expected time to clear them off would be at least 25-30 years which is a delay by at least a minimum of 20 years to the filing of the case which proves this saying right, ‘Justice delayed is justice denied.’

The sole purpose of introducing the concept of alternative dispute resolution such as arbitration, conciliation, mediation and negotiation was to reduce the backlog of cases and provide speedier, effective and less expensive remedies. According to the reports of the Department of Justice, United States, there was 69% success rate in ADR cases in 2012, 73% in 2011 and 77% in 2010 ((http://www.justice.gov/olp/adr/doj-statistics.htm)). It has shown a vast difference in the costs incurred by traditional courts in comparison to the alternative dispute resolution methods. It not only saves money but also saves a lot of time since the cases are disposed faster and the award by an arbitral tribunal is final and not subject to appeal. It can only be set aside on the grounds laid down under the Act ((Section 34, The Arbitration and Conciliation Act, 1996 – Application for setting aside Arbitral Award)). Moreover, an award passed by an arbitral tribunal is binding and has standing before the Court of Law.

ADVANTAGES OF ONLINE DISPUTE RESOLUTION

Considering the current scenario in India and its increased dependency upon e-commerce, the prevalence of online dispute resolution is most apt. It will serve as an important medium to resolve disputes effectively as well reduce costs. It will act as a saviour to reduce the tremendous backlog of cases. The advantages of this method have been listed below:

  • Existence of strong bases such as AAA and ICC – In India, there is a strong base previously established. Institutions such as AAA and ICC have established ground rules which have paved a smooth path for the growth of online dispute resolution.
  • Cost effective – The idea is to make dispute resolution cheaper and online dispute resolution is definitely much cheaper than the traditional means of dispute resolution.
  • Time effective – Compared to the traditional means of dispute resolution, where each dispute takes years and years to be resolved, this method would make it speedy and faster.
  • Reachable – The technology used for the purpose of online dispute resolution is by means of video conferencing via Skype and Google Hangouts and the like. This makes it reachable and affordable as well. Parties can sit at the convenience of their houses or offices and still resolve the dispute conveniently.

DISADVANTAGES

Every coin has two sides and thus, the down side for online dispute resolution would definitely be the lack of a regulatory framework and insufficiency in the existing laws. Despite the fact that there exists The Arbitration and Conciliation Act, 1996 and the Information Technology Act, 2000, yet, the two Acts have not been framed keeping in mind the changes that may occur in the technological sphere.

  • It lacks in terms of infrastructure as well as human institutions to conduct such proceedings.
  • Technological disadvantage – for those who are not equipped with technology, no knowledge with use of technology etc.
  • Frivolous complaints and unnecessary adjournments. Lawyers should ensure that each complaint is disposed of quickly without any backlog.

Despite its drawbacks, it seems like an effective key to resolve disputes which concerns B2B – Business to Business and B2C – Business to Customer. India is yet developing in this sphere and requires assistance from those countries which practice this more frequently. It definitely has a massive role to play in current scenario in India.

THE MODRIA EXAMPLE – EXISTENCE OF ONLINE PLATFORM FOR DISPUTE RESOLUTION

Speaking of online dispute resolution, the largest investment in this field was granted to Modria, a start-up, started by the Online Dispute Resolution Head of EBay ((See http://www.modria.com/)). This start-up based upon the European Commission on ODR Regulation allows parties to place complaints online and the model is based upon understanding the needs of the client and addressing their issues by means of arbitration, mediation and negotiation before it enters litigation. It allows the parties to choose their arbitrators, upload documents as well as conduct proceedings all through a virtual platform. The technology adopted by Modria involves a client interface which provides the different dispute settlement options based upon the dispute and clients could use customized versions such as presenting of questionnaires, transparent discussions, uploading online “evidence” etc to make their claims. It is completely user-friendly and informal and the parties can decide what’s best for them. This idea has been so successful that it has expanded to countries in the European Union and is not merely restricted to any particular field, and has claims even in the sector of tax, real estate etc. it is considered as one of the most advanced means of dispute resolution and is widely used in The United States of America and Canada especially for tax related issues. Other existing online platforms include SquareTrade, www.virtualcourthouse.com and many others.

In a country like India, this technology could be extremely useful in settling disputes not only to reduce costs and save time but also reduce the backlog of pending cases.

RELEVANT LAWS

From a broad perspective, the two laws that play an important role with respect to online dispute resolution are:

  1. The Arbitration and Conciliation Act, 1996
  2. The Information Technology Act, 2000

The traditional rules of dispute resolution will be followed as per those provisions laid down in The Arbitration and Conciliation Act, 1996. Once again, the arbitration agreement will play an extremely major role even when it concerns online dispute resolution. An online dispute resolution will be initiated either by formally having an online resolution clause in a normal agreement or by enacting an electronic contract (e-contract). The bottom line of the transaction will be governed on the principles laid down in the agreement. The arbitrators thus appointed would derive their authority only from the agreement.

The other important enactment would be The Information Technology Act, 2000 merely because the transaction and the proceedings will be conducted through an online portal. It is necessary that a strict regulatory and enforcement mechanism be drafted in order to face the challenges that might arise. The International Chamber of Commerce has laid down certain guidelines to be followed while laying down an online alternative dispute resolution model ((Guidelines passed on March 25th, 2004 titled ‘Operating Standards for using IT in International Arbitration’)). Here, the guidelines discuss that if electronic documents be admissible in law ((Section 4 and 5, Information Technology Act, 2000 read with Section 65-B, The Evidence Act, 1872))then, a similar interface can be used to resolve disputes by means of an alternate dispute. Some of the guidelines include:

a) File names should always be given a unique name/identifier for each electronic document so as to identify the originator, class of document and place of arbitration.

b) The same form of file naming system should be used throughout the arbitration for all electronic documents.

c) The file name and the date of the original document (e.g. the date shown on a letter that is submitted as evidence) shall appear on the first page of the electronic document, either at the top right corner or at the bottom.

d) If data loss occurs and the affected participant cannot itself reconstitute the lost electronic documents, the other participants shall help to reconstitute the electronic file(s) by providing copies of the pertinent files that they control.

e) A uniform method of mode of transmission and storage of emails should be practiced.

f) Whether any confirmation of receipt of email has to be given should be mentioned beforehand.

g) File format for sending attachments, like. PDF, Doc, HTML, ASCII should be generally followed unless specifically mentioned otherwise.

For audio and video conferencing during online arbitration ICC has stated that the arbitral tribunal, in consultation with the parties, will issue directions giving details for the conference, such as:

  • Day and hour and applicable time zone;
  • Places where a conference front-end is required;
  • Who shall participate and number of persons at each front-end;
  • special requirements, such as visualization of documents;
  • any other requirements.

These are the basic guidelines which need to be complied with while conducting an online dispute resolution as prescribed by the International Chamber of Commerce (ICC). Besides these, the other procedural guidelines laid down in the Act ((Section 18 – 27, The Arbitration and Conciliation Act, 1996))need to be strictly complied with including the rules of natural justice, good conscience and equity.

The purpose of resolving disputes by means other than the regular court proceedings is to ensure that justice be done, faster and effectively. Hence, to implement online dispute resolution effectively and properly, it is necessary to clearly lay down all the guidelines and ensure that justice is done.

CONCLUSION

In the kind words of Abraham Lincoln he believed,

“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

The purpose of alternative means of dispute resolution is to ensure that there is harmonious settlement of disputes between parties and that justice is achieved in a speedy manner. To cope up with the changing trends in the society with respect to technology, online dispute resolution is emerging at a large scale. Using the medium of the internet and the like, disputes are resolved and it is slowly paving its way in the India as well. The need of the hour is to establish the law and lay down ground rules to ensure that the fullest benefit is derived from it. Justice should not only seem to be but also must be done in its truest sense.

It is necessary to amend, mould and frame the guidelines to streamline it in such manner that the disputes are resolved harmoniously and effectively. Considering that technology has made everything affordable and reachable, justice should not be far away. Online means of dispute resolution, if regulated and enforced properly, would be the light in changing the modifying the justice deliverance system in India. It not only will reduce the backlog of cases but will also go a long way in restoring the faith of the people in the justice deliverance system of the country.