Cyberlaw for Company Secretaries in india

8/12/2019 Cyberlaw for Company Secretaries in india

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Cyber laws, Indias needs and the

Company Secretarys role

Subramaniam Vutha

[email protected]


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Key concepts

LAN

WAN

Internet

WWW

Cyberspace Law of cyberspace


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Comparison with

The automobile highway

Aviation

Web 2.0

Speed

Reach

Connections

Options and implications


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How does the law come in?

Technology does what technology can

Technology is not concerned about rights,

limits, obligations and remedies [from the

knife to space exploration]

But the law is about all these


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Real life; virtual life

All these have shifted to Cyberspace:

Work

Play

Interact

And each of these has become a business


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You are already in cyberspace

Banking

Entertainment

Email

Filings

Electronic signatures Knowledge sharing or accessing.

Google gets you going


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A slow quiet revolution.

Inversely proportional to age

Makes history and heritage a burden

sometimes

But can the Internet keep the law out

remember the Declaration of Independence

of Cyberspace


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IMPLICATIONS FOR

BUSINESS Demand for corporate transparency rises

Ability to provide disclosure zooms

Going concern concept dying?

New threats to old businesses? Why your

newspaper looks more like a TV and a

website?

Typists at the top

B2B, B2C, C2B, C2C, P2P .


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More implications

Share markets recognize knowledge; MS

and Intel v/s Ford, GM, Boeing, Kodak, etc

etc.

The Death of Distance?

Companies are already virtual entities. Now

businesses are becoming virtual?


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HYPE vs REALITY

Global village? Borderless world? Morecountries [ 195058, 1999 -185 at UN]

Finance flows, goods move, people fly,

paperwork grows. So do viruses. Data is shared/strewn, information is

hoarded, knowledge is en-cashed and IPR is

used as a strategic weapon. The Law steps in.


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CYBER LAWS

A new comprehensive cyber law?

Or laws adapted for cyber space?

I T laws, v/s Cyber laws, v/s e-commercelaws.


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LAWS LAG TECHNOLOGY

Growing hiatus -

Use of traditional theories. E.g. Doctrineof stock exhaustion

The minimalist approach [Indias I T Act]


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Indias I T Act..

Functional equivalence, e-governance,

offences, digital signatures and remedy

framework

Other laws that apply?

Contracts, policies, disclaimers and

information security fill the gaps. [ Crucialrole for CS]


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The Internet & Corporate

Governance Greater disclosure

Greater frequency

Greater reach & speed

NAVs on your mobile

Edifar, MCA 21 Authenticity? Dispersed disclosure model?

The Birbal story


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Contracts in Cyberspace

Web offers

Emails like faxes; www like telephone

The perils of mail boxes

Email contracts versus web contracts


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More about cyberspace contracts

The challenges of

a. Authenticity

b. Integrity

c. Non repudiation

And the role of electronic signatures, CA, andthe Public Key infrastructure.


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A comparison

Real world contracts

Offer

Acceptance

Consideration

Parties

Capacity

Lawful object

Ad idem

Cyber space contracts

Email v/s web

Contracts of adhesion

Payment gateways

Who is that?

Minors, tricksters?

Law variations

Hidden/obscure terms?


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Cyber space and torts

Duty of care to a neighbor

Duty to act, duty not to harm [Weller & Co

vs Food and Mouth Disease Research Inst]

Primary v/s secondary damage?

Warnings, disclaimers, limitation of liability

Lower human interaction; chain of risk?

Finding v/s requesting [Caparo V Dickman]


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Cyberspace and IPR

Trademarks, service marks and domain

names

And copyright challenges [more later]

Patents for business models. The story of

Jay Walker and priceline.com. Quid pro quo

for patents and the Internet.

Trade secrets and Echelon


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Cyber space and new business

models Amazon.com and the corner book store

Reverse auctions

Monopsony on the Net

Directed driving or surfing

Telemedicine

E-chaupal

E-ducation


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Cyber space and the consumer

Loss of privacy

Distance selling directives, OFT, SEC, FTC

Allocation of risk

The centrality of trust


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Cyberspace and taxes

Money laundering

Digital cash

A PAN for everyone

Indirect taxesbits and bytes!

The Net tightens


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Cyber space and copyright

Is everything on any website free for all?

Implied licenses, non derogation from grant.

Forwarding e mail

Open source [manufacturing for masses v/s

manufacturing by the masses]

UGC


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Counter forces

Open systems and monoculture risks

Data v/s Information

Greater connectivity v need for insularity

Fewer intermediaries v more info-mediaries

Curbs conventional crime and facilities

white collar or economic crime

Piracy for long term benefits?


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Cyber crime

Forgery

Counterfeiting

Identity theft Tax evasion

Electronic vandalism

Electronic terrorism Espionage

RTP/UTP

Sales, Investment

frauds

Advertising frauds Interception/

tampering

Spam and DOS

Spoofing, shilling,

bidding agents

Pumping and dumping


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New opportunities

Accreditations

Cyber notaries? Sp. Certifying Authorities ?

Standards, certifications, audits

Self-regulation, soft infrastructure

High velocity remedial systems

Insurance

Education


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The Perils of Paperless

operations Digital obsolescence

Dependence on power supply

External threats like dust, heat

Handling risks for digital media

The nanosecond nature of digital

destruction


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Privacy (contd)

Data protection obligations include

lawful procurement

lawful purpose

lawful use

adequacy test - not excessive

accuracy and updationaccess to persons concerned

security


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Role of the company secretary

Debate and understand implications

create web sites ( WIRC, ICSI)

influence and help formulate a national e-

commerce framework

contribute to soft infrastructure eg.,

insurance and liability advisories, funding

and IPOs , IPR advisories, venture capital

networks, web-creation for entrepreneurs

with enabling agencies


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Role of Company Secretary

(contd) Permit and encourage foreign linkages

introduce e-commerce laws, IPR laws in the

curriculum

review which other laws need changing to

foster e-commerce eg., bankruptcy laws,

company law (for new types of entities,consolidation of annual accounts, M& A)


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The Technology Law Forum

Not for profiteducation and research on

Internet, laws and business

Building bridges between Technology andLaw

Your virtual forum for ongoing interaction

Write to [email protected]

from a g mail id only.
mailto:[email protected]:[email protected]


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THINK

Data, information and knowledge. Knowing

the difference can make a difference to your

working life What would you call the current economy?

And what are its implications for you?

Cyberlaw for Company Secretaries in india

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