ITA-2000 not worthy of emulation..says research
It has been reported a research from Queen’s University Belfast and Liverpool John Moore University on ITA-2000 which has expressed the opinion that the law is over complex and suggested that it is not worthy of emulation by other countries. >>Details at id21.org
Diljeet Titus vs Alfred A. Adebare and Others
The Delhi High Court decision on the case filed by the Law firm Titus against its leaving advocate associates has opened up for debate, important issues that will have an impact on professionals in all fields including Chartered Accountants.
The practice of individual professionals coming together as a partnership and carrying on business together is common for Lawyers, CAs and Company Secretaries. Most professional bodies mandate that a person cannot practice if he is in employment but relationship between members of the same profession for doing joint business is considered not an employment but a revenue sharing arrangement between members of the same profession. The revenue sharing may vary from pure revenue sharing to some guaranteed minimum payment made by the firm to the individual consultant or a guaranteed minimum share of revenue parted by the professional to the common pool. The payment if made by the firm to the professional is not normally called salary but is termed as a retainer. The business may however be carried in the common name of the firm often described as "X and associates" where X happens to be the main partner in the arrangement. It is not necessary that in all cases X should be guiding the professional and taking decisions in his name like a CEO of a company does. Each professional may work as if he is an independent authority and may seek advice of any of his colleagues as he may find necessary.
The current judgment has taken a view that the relationship between the associate advocates and the main partner is that of an "Employee" and the "Employer". Hence all material created by the associates would be considered as material created by paid employees and would be subject to copyright of the employer. In view of this decision, unless the decision is challenged, the professional bodies may now have to rewrite their professional practicing norms either including or excluding such "Consultant Employees".
It appears that in the judgment the Court has relied on "Deduction of TDS" as a key aspect of determining the nature of the contract. Since TDS would be there in all Consultancy and even service delivery contracts, it is difficult to understand why the Court ignored other aspects of determining the nature of an employment contract. In fact it would be necessary to examine if there is "Provident Fund", "Gratuity", "Pension", "Leave", "Leave Travel Concession" , "Attendance Register" and other specific employment oriented aspects in the relationship.
I suppose the decision will be appealed against and perhaps the professional bodies such as ICAI and Bar Council should also present their views on the subject for the benefit of the Court hearing the appeal.
.. Report in Hindu Business Line
Civil Disobedience Movement in India
Several decades after Mahatma Gandhi brought freedom to India through Civil Disobedience Movement, India has once again felt the need to remember the great man and his movement. The fight for equality in higher educational opportunities in India has now taken the shape of a Civil Disobedience Movement with the call for observation of Civil Disobedience between 9.00 am to 12.00 am IST on 25th May 2006.
Is this the new fight for independence in India?..First in the Digital Era?..Will the nature of the movement in the Digital era be different from what happened under Mahatma Gandhi? Will there be an e-Mahatma Gandhi who will emerge?.. Will there be an e-Subhash Chandra Bose who will emerge?.. What impact this movement will have on the brain drain? Will Brain drain now start at the pre-education level itself? Will a Sri Lankan IIM or a Singapore IIT attract students and teachers from India and become an off shore higher education center for the less privileged Indians?... Will this shift the base of IT power from India to some other country where there is more concern for equality?..Will this have an adverse impact on e-economy and encourage Cyber Strikes?...are some of the thoughts that cross the minds of persons who are concerned about the future of the Country.
Whatever happens in the end, May 25, 2006 will perhaps be a day to remember when a Civil Disobedience call has been made for the first time in the Digital Era in India...Report in IE
Infosys Fights for Exclusivity on its Name
Trade Marks and Service Marks are creating frequent disputes in corporate circles more so since the Internet has made domain names a global identity. In the forefront of such disputes is India's leading IT Company Infosys which has reportedly moved the Company Law Board for a permanent injunction on the use of the word 'Infosys' by other registrants. Mr Pavan Duggal the counsel for one of the affected companies, the Rajastan based Data Infosys has defended that the word 'infosys' is derived as a combination of 'Information' and 'System' and therefore cannot be accepted as an exclusive right of any one company. The debate if decided in the Court is likely to set a new trend either way for more litigation. It is perhaps time for appreciating the spirit of co-existence enumerated in www.lookalikes.in and take such steps as indicated there in to prevent the misuse of established names and at the same time avoid avoidable litigations. Report in Economic Times
Housewife Arrested in Kolkata for Soliciting
Kolkata police are reported to have arrested a housewife for soliciting through a website posing herself as an escort. What is interesting to note that the report indicates that the case has been booked under ITA-2000. Obviously the case would have been booked under Section 67 for publishing information obscene in electronic form. It is doubtful however if the case is fit for Section 67 since offering oneself as an escort online can hardly be considered as "Tending to deprave and corrupt persons who are likely to read the information". It would have been more appropriate if the case had been booked under IPC with the use of Electronic Evidence as recommended under ITA-2000/IEA. Report in indiaenews.com
Harassment through telemarketing calls is becoming more and more menacing. While calling an existing customer for new services is one aspect which may have some acceptance, calling a non customer for marketing of a product by obtaining the private information such as a mobile number from some data base without authority is nothing but an offence both as Spam as well as Privacy invasion. Though Supreme Court has expressed its reservations on the matter, Credit Card marketing agents continue to use mobile phones with impunity. The case filed by a harassed doctor in Mumbai reported here is an interesting story which needs to be taken note of. Hope Police will take action at least under IPC or under Section 66 of ITA-2000 against the person responsible for sharing of the phone number from a digital data base and thereby causing "Diminishing the Value" of the confidential information residing inside a computer resource. .Report in Mumbai Mirror
Mobile Phone Forensics Lab to be set up in Bangalore
Recognizing the increasing importance of Mobile Phone Forensics, Naavi is in the process of setting up a "Mobile Phone Forensics Lab" in Bangalore in association with an entrepreneur. The company would also take up Digital Evidence Archival and Computer Forensics and would be a full fledged "Digital Evidence Examination Lab", the first such unit in the private sector. The Unit will also undertake research activities in the Mobile Phone Forensic segment. Discussions are on with some educational institutions and mobile operators for a joint effort in such research.
ICICI Bank Credit Card Takes Public For a Ride
It is common knowledge that Credit card marketers in India use aggressive marketing strategies to promote their business. However when marketing aggression turns into illegal misrepresentation, fraud and deceit, there is need for the Consumer Courts to intervene and make them realize their obligations. One such incident which needs public mention is regarding ICICI Bank Credit Cards in Chennai. The Bank recently advertised an "Akshaya Trithiya Scheme" and displayed posters stating "Get 10* Times the reward points & Interest Free* EMIs with EMI-On-Call". There was the "fine print", "hidden in design" words "Conditions Apply" tucked in some corner. After the purchase was made, the sales persons followed up and enticed the buyers with "Free EMIs". On enquiry after the bill was received, the customers are being told that the "Conditions" are that it will be either 10 times the reward points or Interest-Free EMIs and not "AND".
ICICI must realize that it is not correct to use the "Conditions Apply" clause to modify what is actually printed as disclosed conditions. The "Conditions Apply" must legally be considered as "Other Conditions Apply" and only some less essential details other than what is printed can be imposed on the consumer. This is similar to a "Shrink Wrap Contract" where certain essential features are disclosed before the contract is accepted and more detailed terms would be revealed later. The contention of ICICI that it can state some conditions prominently and then modify the same under the sub clause "Conditions Apply" tantamounts to deliberate misrepresentation or more appropriately a "Fraud".
At this point of time, I am seeking explanation from higher officials of ICICI Bank and would request any other consumer who has similar complaints to write to me. ( firstname.lastname@example.org ) Any legal professional in Chennai who would like to take up this cause and assist me to once for all end the Credit Card Companies taking consumers for a ride through their fraudulent advertising campaigns is welcome.
New Mobile Phone Challenges for Cyber Crime Police
After Chennai students showing the way by using "Pen Scanners" in conjunction with mobiles to pass on examination questions to their friends outside and get back solutions, it is the turn of the American students to try a similar trick. A student in California is reported to have used a mobile to photograph the question paper and send it outside where the questions were solved and solutions sent back by mobile. Details in TOI
These incidents highlight the new generation of Cyber Crimes using mobiles.
Copyright Vs Community interests
In yet another incident of arrogant application of Copyright, RIAA has filed a case against a satellite radio broadcasting company which is selling an i-pod like recording device that can hold 50 hours of recorded music. RIAA has become a symbol of anti consumer application of Copyright principles and has not hesitated to attack any technological innovations which are part of the human development. It must be remembered that Copyright is a protection meant for individual creative persons and the intermediary business interests that RIAA represents are not the direct beneficiaries of the law as was intended by its framers. Yes, to the extent they compensate the original authors, they deserve protection for their value addition. But this does not entitle them to hold the community for ransom as is indicated in the latest incident. It is necessary to also look at another decision of the Supreme Court in US in an e-bay patent case which has indirectly supported the view that implementation of IPR protection needs to be moderated. Hopefully RIAA should be made to see reason and withdraw the case against the satellite radio company. Refer: ebay case : XM Satellite case
Telecom organizations commemorate "Information Society Day"
17th May each year was being commemorated as the World Telecom Day to commemorate the formation of the International Telecom union (ITU). From the current year onwards, pursuant to the decision taken at the WSIS in Tunisia, the day is being observed as the "Information Society Day". The industry in Chennai under the leadership of IETE organized a commemoration day followed by a discussion on the theme of the year namely, "Security of the Cyber Society". In a widely attended meeting in Hotel Savera today, several eminent speakers including Mr R.K.Raghavan (Former Director, CBI), and Naavi participated shared their views.
French Oppose Proposed Digital Copyright Laws
Widespread opposition has been expressed in France over the proposed legislation on Digital Copyrights which attacks downloading of copyrighted material from the web and file sharing...Report in bbc.co.uk
Steve Bucknor Accuses TV Crew of "Hacking"
Mr Steve Bucknor a well known Cricket Umpire has accused TV crew covering cricket matches of having tampered with the digital signals. In the light of the new ICC decision to allow direct appeals to the TV umpire by the fielding side, such manipulations could give raise to a debate whether they fall in the category of Cyber Crimes. ...Read detailed article here
International Institute of InfoTech Law
To accelerate and continue the mission of Naavi.org to spread Cyber Law Awareness in the community, a new initiative is taking shape in the form of "International Institute on Information Technology Law" (IIIT Law) to be formally launched on 2nd June 2006 at Bangalore.
Justice B.K.Somashekara, Mr N.Vidyashankar and Naavi has founded a Trust to establish, run and promote Training and Research in the areas relating to Information Technology Laws (Cyber Laws)...More
Mission-"Cyber Law Awareness"
Naavi.org started its mission of "Building Cyber Law Awareness" in the middle of 1998 with the draft of E-Commerce Act 1998 then made available on line by the Ministry of Information Technology. In the last few months some of the new initiatives have given another significant boost to Naavi's "Mission-Cyber Law Awareness".
There are several more projects of Naavi which are still under development and which can be accelerated if appropriate partners with similar thoughts are available.
I take this opportunity to invite suggestions from the members of public on how the "Mission-Cyber Law Awareness" can be pushed further...More
Is ICANN losing direction?
While increasing Phishing and web based Copyright frauds are a matter of concern to the common internet users, the Privacy lobby has succeeded in convincing ICANN that the "Whois" details of websites need to be hidden from public view. The "Who Is" is one of the important sources of information which enables the victims and the law enforcement to obtain basic information to launch legal proceedings. While it is true that spammers harvest e-mail addresses from the list of contacts, it is not advisable to hide the contact details from general public. If ICANN proceeds with this move to hide identity of web owners there will be a need for Internet users to insist on some kind of a "Trust Certificate" before any content on a website can be relied upon. Besides hindering the law enforcement, the proposal will seriously affect the reliability of the Internet as an information superhighway.
It is strange that ICANN is simultaneously considering .tel TLD extension to provide contact information which could be a more direct e-mail harvesting source for spammers. Obviously, ICANN appears to be losing its direction as a "de-facto regulator of Internet". Probably the WSIS regime will now have a stronger case to take over some of the regulatory functions of ICANN Report in newsmax Report in mercury news on .tel
720 pages of Comprehensive Coverage on Cyber Laws
Naavi's "Cyber Laws in India..ITA-2000 and Beyond", first E-Book on Cyber Laws to be published in India consisting of 720 pages of comprehensive coverage on Cyber Laws and relevant issues, available for online purchase at RS 300/- in download form and at RS 400/- on CD.
For more information click here.
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