Shreya Singhal judgment and Internet Intermediaries in India

Eira Mishra

An analysis of the effect of Shreya Singhal judgment on Internet intermediaries in India

The Shreya Singhal judgment ((Shreya Singhal v. Union of India, WRIT PETITION (CRIMINAL) NO.167 OF 2012)), pronounced in March 2015, has been met with ambivalent reception on the stance of intermediary liability law in India. The first Public Interest Litigation (PIL) on the matter (with which several cases were subsequently joined) contested the constitutionality of Section 66A, 69A, 79 and 80 of the Information Technology Act, 2000 (hereinafter “the Act”) on the ground that these violate Articles 14, 19(1)(a) and 21 of the Constitution. Section 66A was plagued with several ambiguous terms like “grossly offensive”, “menacing character”, “annoyance”, “inconvenience”, “danger”, “insult”, “injury” and “ill will”. This section was held to assault the very soul of the freedom of expression guaranteed under Article 19(1)(a) and to not be saved by any of the reasonable restrictions under Article 19(2). It was consequently held unconstitutional. This decision was hailed as victory of freedom of speech and expression over draconian laws unfit for operation in a democracy.

The advent of internet has ushered in the need for law to constantly evolve with the new methods of communication and information dissemination growing every day. A critical question in this regard is the determination of liability of internet intermediaries. The other provisions of the Act contested were Section 69A, dealing with procedure for blocking of public access to websites and Section 79 which bestows immunity on intermediaries from liability in certain cases. The IT Act defines “intermediaries” ((Section 2(1)(w) of the Information Technology Act, 2000))to include telecom service providers, internet service providers, search engines, cyber cafes, etc. Any person or organisation facilitating storage or transmission of electronic records is included within the definition.

Clarification on Procedural Safeguards

Constitutionality of Section 69A of the IT Act was assailed on the basis that it did not provide for any pre-decisional hearing. The Supreme Court, on the other hand, has upheld the constitutional validity of the provision stating that ample safeguards akin to those laid down under Article 19(2) have been given under the section. These provide satisfactory guidance to authorities as to what content is liable to be blocked and to weed out misuse of the provisions. It further read pre-decisional hearing into the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 ((Hereinafter, the Blocking for Access Rules)), laid down under Section 69A (2) of the Act. This demolishes the prior regime of notice and take-down. Intermediaries usually complied with third-party notices even when the content was perfectly legitimate because they lacked the resources and the initiative to defend known/unknown originator’s content if litigation ensued. Provision of these clarifications is hailed as originators and intermediaries will now have a clear opportunity to make representation before the concerned committee and plead their case before their content is taken off the internet.

The apex court has read down these rules to mean that non-governmental agencies cannot easily force removal of content available on the internet. The government is conferred the responsibility to decide the lawfulness, or the lack of it, of the disputed content. Additionally, the Blocking for Access Rules have been read to mean that blocking order shall be provided to the intermediary in writing, stating reasons for issuing of the order. The intermediary has the right to appeal against the order in a writ petition under Article 226, contesting the reasons mentioned in it. This verdict will protect online content from being forcefully taken down due to indiscriminate notices against lawful content.

Rule 8 of the Blocking for Access Rules has been read to mean that pre-decisional hearing is granted not only to the intermediary but also to the originator of the content. The extension of opportunity to represent oneself advances accountability to the system set for blocking. However, this would require the Committee to locate and contact the originator, something which might not be strictly followed ((Chinmayi Arun, The Case of the Online Intermediary, THE HINDU, April 7, 2015, http://www.thehindu.com/opinion/op-ed/shreya-singhal-case-of-the-online-intermediary/article7074431.ece#comments)).  This sets a low threshold of accountability for the review committee. Mostly originators cannot be identified and intermediaries are not usually willing to appeal in a writ petition for anonymous person’s content.

The temporospatial extent of blocking orders is also burdened with ambiguities. There are no guidelines that state for how long and over what territory is the blocking order applicable. Another matter of concern is the confusion over frivolous complaints wherein no penalties have been imposed for false complaints and not rules discuss the recourse available to the intermediary to claim damages upon proof of vexatious complaints ((Jyoti Pandey, The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India? CENTRE FOR INTERNET AND SOCIETY, April 11, 2015, http://cis-india.org/internet-governance/blog/sc-judgment-in- shreya-singhal-what-it-means-for-intermediary-liability)).

Need for Transparency

The blocking procedure has still not been lit up with transparency. Rule 16 of the Blocking of Access Rules states that strict confidentiality shall be maintained with respect to complaints received and blocking orders passed. This is an “insidious form of censorship” and results in chilling effect of freedom of speech and expression. The court reiterates that an “informed citizenry” and a “culture of open dialogue” are integral to functioning of our democracy. Confidentiality is criticized because it abridges an originator and reader’s right to know that their content has been blocked by a government notice. In fact, many academics believe that blocked web content must carry a notice which lays down the reason behind the order and the authority issuing the order.

Keeping up with technology is quintessential. Creation of a digital version ((Supra note 4))of the traditional government notices is one of the ways to keep the public informed of government action taken and to provide affected persons with an opportunity to contest the ban. This would bring our procedure at par with due process.

Another way for public scrutiny of government blocking orders would involve imposing of a requirement on the central government to publish an annual report of online content blocked with reasons for the action. This would advance the cause of transparency and decrease arbitrariness on part of government.

Safe Harbour and Intermediaries

Section 79 of the Act attempts to create a “safe harbor” for intermediaries. It exempts intermediaries from liability for content hosted by them on conditions laid down under Sections 79(2) and 79(3). The intermediary is required to publish rules and regulations of usage, privacy policy and a user agreement for users of computer to abide by, as per conditions stated in Rule 3 of the Information Technology (Intermediaries guidelines) Rules, 2011. This requirement of “due diligence” under the Act has created a hostile working environment whereby arbitrary take-down notices are sent to intermediaries. As per the rules, intermediaries may decline to comply with the notice but they usually submit to these to avoid prolonged and costly litigation. However, prior research ((Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, CENTRE FOR INTERNET AND SOCIETY, April 27, 2012, http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on- internet))has shown that intermediaries prefer overbroad blocking over the risk of litigation.

The aforementioned process gives rise to privatization of censorship which is contrary to the very essence of the right to free speech and expression guaranteed by Article 19(1)(a). The liability imposed on platform companies for regulation of online activities of its users’ amounts to censorship-by-proxy which endangers both free speech and innovation. Thus Section 79, along with the Intermediaries Guidelines, 2011 was challenged in this case ((See also: Mouthshut.com v. Union of India, WRIT PETITION (CIVIL) NO. 217 OF 2013)). The court read down Section 79(3)(b) of the Act and Rule 3(4) of the Intermediaries Guidelines, 2011 to mean that whereas previously the intermediaries had to suo motu decide the lawfulness of the content, now it is essential to require passage of an actual court order or government notification for initiating a take-down.

Another pertinent issue is at the centre of this argument. Even though an expectation that intermediaries would monitor and regulate all content that flows though their channels is flawed, yet some level of cooperation is essential to ensure that harmful speech, such as child pornography, is expeditiously removed from the host site.

Conclusion

The Shreya Singhal judgment has granted a much needed sigh of relief on content originators, intermediaries and netizens in general. Intermediaries’ legal liabilities have been substantially lowered due to clarifications provided by the Supreme Court. This would act as a catalyst for businesses which are primarily based on the internet.

Upholding validity of Section 79 after reading down 79(3)(b) implies that intermediaries are not completely off the liability radar. They can harness this opportunity to build reliance on their user guidelines by issuing simple take-down policies for content which amounts to harassment, bullying or other misdemeanors, thereby minimizing the need to resort to judicial remedies.

32 websites blocked in India after DoT circular

As reported in Times of India and India Today Department of Telecom (DoT) blocked around 32 websites in India. The lists of the blocked websites include Vimeo, which is a YouTube like video host, and Github, a website used by software developers to host and share programming code.

The telecom body reportedly issued a notification regarding the same on December 17. A screenshot of the circular has been posted on Twitter by Pranesh Prakash. The notification mentions that 32 URLs including Pastebin, video sharing sites Vimeo and DailyMotion, Internet archive site archive.org and Github.com( a web-based software code repository), have been blocked under Section 69A of the Information Technology Act, 2000. DoT has also asked ISPs to submit compliance reports. However, we have not been able to verify the authenticity of the circular.

What is Section 69A of the Information Technology Act, 2000?

Power to issue directions for blocking for public access of any information through any computer resource.- (1) Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-sections (2) for reasons to be recorded in writing, by order direct any agency of the Government or intermediary to block access by the public or cause to be blocked for access by public any information generated, transmitted, received, stored or hosted in any computer resource.

(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed.

(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.
[* Inserted vide Information Technology Amendment Act, 2008]

Government to reconsider Section 66 A of IT Act

While replying to the Supreme Court’s comment seeking clarity on Section 66 A of the Information Technology Act, 2000, Central Government informed the apex court that Government is willing to take a re-look at Section 66 A of the Information Technology Act, which empowers police to make arrests over social media messages, and to put in necessary safeguards for allaying apprehensions against its misuse.

Government gave assurance to that, it will take appropriate steps to frame necessary guidelines to curb misuse of Section 66 A of the Information Technology Act, 2000. Government also assured the guarantee of absolute freedom of speech and expression on the social media.

Central Government further submitted that the government had an open mind regarding applicability of Section 66 A and that if necessary, it could also frame guidelines to make sure the law is not abused to arrest innocent people and curtail their fundamental right and the government is willing to take all pre-emptive steps to negate the chilling effect that Section 66 A may have on an individual’s right to speech and expression. Government further promised that, even the most vociferous of the political dissent would not be attempted to be curbed by way of this legislation.

Considering the submissions made by the Central Government court advised petitioners, who have challenged the constitutional validity of Section 66 A, to give their suggestions regarding the proposed safeguards by December 25 to Additional Solicitor General (ASG). “The government will consider these suggestions on the guidelines to be framed and we can then hammer out the issues,” said the bench, while adjourning the case to 13 January, 2015.

Clarity required on ‘infirmity’ in Section 66A, IT Act 2000

A bench of Justices J. Chelameswar and S.A. Bobde of the Apex Court, while hearing contention of Centre in a case of posting objectionable comments on social websites by some persons sought clarity on ‘infirmity’ in Section 66A of the Information Technology Act 2000 (IT Act). Court recognized that misuse of Section 66A in case of “unpalatable political activity” had to be checked and said for individuals in the public sphere, the ambit of the section had to be defined.

The substance of the proceedings before the apex court was, Whether Section 66A of the Information Technology Act, 2000 (IT Act), which provides punishment for sending offensive messages through a communication service a flawed law, or is it just being improperly implemented? The bench further observed that if the law was being abused, on a case to case basis, the same could be looked into instead of striking down the entire provision. Court further wanted to see the infirmity in the law.

Section 66A of the Information Technology Act, 2000 deals with punishment for sending offensive messages through communication service etc., under which any person who sends, by means of a computer resource or a communication device;

  1. Any information that is grossly offensive or has menacing character; or
  2. Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
  3. Any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

For the purpose of Section 66A of the Information Technology Act, 2000 terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

Now the issue for debate is whether Section 66A of the Information Technology Act, 2000 is in violation of the fundamental right to freedom of speech and expression guaranteed under Article 19 (1) (a) of the Indian Constitution. At the same time, Article 19(2) prescribes reasonable restrictions on the right to freedom of speech and expression when the same is in the interests of public order, decency, morality, defamation, contempt of court, sovereignty and integrity of the country and security of India.

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.