Industrial revolution and notions of technology .pptx
1. • SEMESTER: SEVENTH SEMESTER
• BA LLB/ BBA LLB
• NAME OF THE SUBJECT: LAW & EMERGING TECHNOLOGY
• UNIT-1 (A)
• INDUSTRIAL REVOLUTION & NOTION OF TECHNOLOGY
• Dr. Sonia Rajoria
• Assistant Professor
• Center for Legal Studies
• Gitarattan International Business School
3. The Model Law on E-
Commerce, 1996
• In today’s world, a large number of international trade transactions are carried
out by electronic data interchange and other means of communication,
commonly known as “electronic commerce”. It uses alternatives to paper-
based methods of communication and storage of information. The United
Nations Commission on International Trade Law (UNCITRAL), by the means
of Model Law on Electronic Commerce (MLEC), sought to provide a set of
internationally acceptable rules with an aim to remove legal obstacles and
increase legal predictability for e-commerce. It has further improved the
efficiency in international trade by providing equal treatment to paper based
and electronic information, thus enabling the use of paperless communication.
• UNCITRAL Model Law of Ecommerce was adopted by the United
Nations Commission on International Trade Law in 1996.
• The model law is not a comprehensive, code-like articulation of the
rules for the electronic transactions. It does not intend to govern every
aspect of electronic contracting. It adopts a limited framework approach
and enables and facilitates e-commerce.
4. • It has adopted the following fundamental principles of the modern electronic-
commerce law:
• The principle of non-discrimination – It ensures that any document would
not be denied legal validity, effect, and enforceability solely on the basis that it
is in electronic form.
• The principle of technological neutrality – It mandates the adoption of such
provisions which are neutral with respect to technology used. This aims at
accommodating any future developments without any further legislative work.
• The functional equivalence principle – It sets out the specific requirements
that e-communication ought to meet in order to fulfil the same functions that
certain notions ,in traditional paper based system, seek to achieve, for
example, “writing”, “original”, “signed”, and “record”.
5. • The Model Law has been divided into two parts. The Part I relates to the
general provisions relating to e- commerce, it legislates the three principles
of non-discrimination, technological neutrality, and functional equivalence.
• Besides establishing uniformity in the laws regarding e-commerce and legal
relevance for data communicated through electronic mode, Modern Law on
Electronic Commerce (MLEC) also establishes rules for formation and validity
of e- contracts, for data message attribution, for receipt acknowledgement and
for determining receipt of data messages, etc.
• The Part II of the Model Law deals with specific provisions for e-commerce
in certain areas.
6. General Provisions
• Article 2 of the Law provides six definitions, the most important one is of
“Data message”. It is defined as information generated, sent, received, or
stored by electronic, optical, or similar means.This definition has been
attributed after taking into consideration the future technological developments
as well, which is the reason for inclusion of the term similar means. This wide
definition includes the notion of a record and even revocation and amendment.
The sphere of application that Article 1 talks about, is for the information in
the form of data messages, in the context of commercial activities.
• The Model Laws give the interpretational tools(Article 3) which call for a
standard of international origin and uniformity in application of general
principles of law. There can be variation in the communication of data
messages by the agreement of the parties(Article 4).
7. Application of legal requirement to data messages
• The principle of non-discrimination has been enforced by the means of Article
5 which specifies that the information communicated via electronic mode, i.e.,
in the form of data messages cannot be denied legal validity and effect.
Information by the way of reference has also been given legal validity(Article
5 bis) and thus, the application of this law has been considerably widened.
This is of utmost importance in the context of international law.
• The nations required the documents to be in writing and validation was only
given to the hand written signature as a form of authentication. By the means
of provisions in Articles 6 & 7, the Model has done away with both of the
above obstacles. Accessibility of data messages does not require the document
to be in writing, and recognition of digital signature marks the approval of
the full structure of the contract. This provision is termed relevant for every
circumstance including a relevant agreement.
8. • The notion of originality is defined in Article 8 which provides that data
messages can fulfill the legal requirement of presentation and retention of
information in its original form subject to the assurance of integrity and
presentability of data messages. Presentability meaning the ability to display
the information where required.
• Article 9 specifies that the data messages cannot be denied admissibility in the
court of law solely on the basis that the information is in the form of a data
message. Thus, evidentiary value has been granted to data messages. The
requirement of retention of information is also met by retention of information
in the form of data messages subject to the accessibility, accuracy and
originality of format and identity of origin(Article 10).
9. Communication of data messages
• Offer and acceptance of offer, when communicated in the form of data
messages, cannot be denied legal validity and enforceability solely on the
grounds that they are in the form of data messages. Thus, the formation of a
valid contract was made possible through the means of data messages.(Article
11)
• Acknowledgement in the form of receipt of data messages has also been
granted legal validity.(Article 12)
• The data message is attributed to the originator if it is sent by him or by a
person authorised by him(Article 13).
• Article 14 provides that the receipt of the data message and its
acknowledgement can also be agreed upon by the parties beforehand.
• The transaction ensues when the information goes out of control of the sender.
The place of dispatch is the
place of business and the time is when the acceptance enters the system of the
addressee(Article 15).
10. Case Laws
Different states enacted laws based on the principles of this Model Law. Thus, the
courts have interpreted the provisions of their domestic laws according to the
Model Law.
• Khoury v. Tomlinson is a landmark case decided by the Texas Court of Appeal.
The facts of this case are such that an agreement was entered via e-mail which
was not signed but only the name of the originator appeared in the ‘from’
section. Referring to the principles in Article 7 of the Model Law, the court
found sufficient evidence that the name in the ‘from’ section establishes the
identity of the sender.
• Chwee Kin Keong and others is a case dealt with by the Singapore High
Court. There was the issue of unilateral mistake in this case as the wrong
price was quoted on the seller’s website for a product. The server of the
seller automatically sent a confirmation mail when the buyers placed an order.
All the elements of the contract were established but with a mistake which
eliminated consensus ad idem (contract law to describe the intentions of the
parties forming the contract). Referring to the Singapore Electronic
Transactions Act based on Model Laws, the court found that human errors,
system errors, and transmission errors could vitiate a contract.
11. • Thus, the Model Laws became the basis for a number of legislative texts
enacted by various governments across the globe and it gave a uniformity to
the laws concerning the information communicated by the electronic mode of
communication.
• Besides formulating the legal notions of non-discrimination, technological
neutrality and functional equivalence, the MLEC establishes rules for the
formation and validity of contracts concluded by electronic means, for the
attribution of data messages, for the acknowledgement of receipt and for
determining the time and place of dispatch and receipt of data messages.
• It should be noted that certain provisions of the MLEC were amended by the
Electronic Communications Convention in light of recent electronic
commerce practice. The Model Law is accompanied by a Guide to
Enactment, which provides background and explanatory information to
assist States in preparing the necessary legislative provisions and may guide
other users of the text.
12. Why Is It Relevant?
• The MLEC was the first legislative text to adopt the fundamental principles of
non-discrimination, technological neutrality and functional equivalence that
are widely regarded as the founding elements of modern electronic commerce
law.
• The principle of non-discrimination ensures that a document would not be
denied legal effect, validity or enforceability solely on the grounds that it is in
electronic form.
• The principle of technological neutrality mandates the adoption of provisions
that are neutral with respect to technology used. In light of the rapid
technological advances, neutral rules aim at accommodating any future
development without further legislative work.
• The functional equivalence principle lays out criteria under which electronic
communications may be considered equivalent to paper-based
communications. In particular, it sets out the specific requirements that
electronic communications need to meet in order to fulfill the same purposes
and functions that certain notions in the traditional paper-based system - for
example, "writing," "original," "signed," and "record"- seek to achieve.
14. Online
contracts
• Online contracts refer to contracts that are created and
signed over the Internet. Also referred to as electronic
contracts or e-contracts, these contracts provide a fast and
convenient way for individuals and organizations to enter
into legally- binding agreements with other parties. They
are now being used for a wide range of purposes, from
consumer and business agreements to government filings.
What is an Electronic Contract?
• An electronic contract refers to an agreement that is made
and signed electronically, meaning that it does not
involve the use of paper or hard copy. For instance, you
create a contract on a computer and send it to a business
associate via email. Then, the business associate sends it
back to you with an electronic signature to indicate
acceptance
15. • In case of an online contract, the seller who intends to sell
their products, present their products, prices and terms for
buying such products to the prospective buyers. In turn,
the buyers who are interested in buying the products
either consider or click on the ‘I Agree’ or ‘Click to Agree’
option for indicating the acceptance of the terms
presented by the seller or they can sign electronically.
• Electronic signatures can be done in different ways like
typing the name of the signer’s in the specific signature
space, copying and pasting the scanned version of the
signature or clicking an option meant for that purpose.
• Once the terms are accepted and the payment is made, the
transaction can be completed. The communication is
basically made between two computers through servers.
• The online contract is brought to the scenario to help
people in the way of formulating and implementing
policies of commercial contracts within business directed
over internet. Online Contract is modeled for the sale,
purchase and supply of products and services to both
consumers and business associates.
16. Types of E-
contracts
• Shrink-wrap agreements are usually the licensed
agreement applicable in case of software products buying.
In case of shrink-wrap agreements, with opening of the
packaging of the software product, the terms and
conditions to access such software product are enforced
upon the person who buys it. Eg:Anti virus .
• Click- wrap agreements are web based agreements which
require the assent or consent of the user by way of clicking
“I Agree’ or “I Accept” or “Ok” button on the dialog box. In
click –wrap agreements, the user basically have to agree to
the terms and conditions for usage of the particular
software.
• n agreement made intended to be binding on two or more
parties by the use of website can be called a browse
wrap agreement. In case of browse wrap agreement a
regular user of a particular website deemed to accept the
terms of use and other policies of the website for
17. • In case of browse wrap contracts, we usually accept the
terms and conditions of the contract by clicking the button
that indicates ‘ I Agree’ and in case of shrink wrap
contract or purchase of a software product, assent is given
by the consumer or the purchaser with tearing of the
wrapper and using it.
• Many of us have the tendency of not reading the terms and
conditions carefully before agreeing to such. But these
actions should be taken consciously and carefully only
after reading the terms of the contract properly as it leads to
a valid contract and the terms can be strictly enforced
against them.
18. The Information Technology
Act, 2000
• The Information Technology Act, 2000 has made certain
provisions for the validity and the formation of online contracts
but no specific legislation has been incorporated for the validity
of online contracts in India. Even if no specific provision is
made for the validity of online contracts, it cannot be
challenged based on technical grounds.
• The Information Technology Act, 2000 provides various
procedural, administrative guidelines and regulates the
provisions relating to all kinds of electronic transactions. These
include computer data protection, authentication of documents
by way of digital or electronic signature. Though electronic
contracts have been given recognition by the IT Act, 2000, but
majority feels it less secured to get into any kind of online
contracts as there are no concrete judicial precedents for the
validity and enforceability of online contracts in India.
19. Evidentiary value of electronic
contracts
• The evidentiary value of electronic contracts has been given recognition and
can be understood in the light of various sections of Indian EvidenceAct.
• Sec 65B of the Indian Evidence Act deals with the admissibility of electronic
records.
• As per Sec 65B of the Indian Evidence Act any information contained in an
electronic record produced by the computer in printed, stored or copied form
shall deemed to be a document and it can be admissible as an evidence in any
proceeding without further proof of the original subject to following conditions
are satisfied.
• the computer(Electronic device) from where it was produced was in regular
use
by a person having lawful control over the system at the time of producing it,
• during the ordinary course of activities the information was fed into the system
on a regular basis,
• the output computer was in a proper operating condition and have not affected
the accuracy of the data entered.
20. Electronic
Signature
• Electronic Signature has been defined under Section 2(1)(ta) of the Information
Technology Act, 2000. Electronic Signature means the authentication of any
electronic record by a subscriber by means of the electronic technique as
specified under the Second Schedule and also includes a digital signature.
Types of electronic signature:
Unsecured Signature
• Email Signature: Just typing one’s name at the end of an email or sending a
message on letterhead. They can be easily forged.
• Web Signature: Web-based clickwrap contracts create a lot of difficulties in E-
Commerce. The acceptance is made by clicking a single button. Such a signature
doesn’t do anything about the identity of the sender.
Secured Signature: This includes the signatures which are digitally secured and also
which have more legal weightage.
21. Digital Signature
• According to section 2(1)(p) of the Information Technology
Act, 2000 digital signature means the authentication of
any electronic record by a person who has subscribed
for the digital signature in accordance to the procedure
mentioned under section 3 of the same act.
• Section 5 of the Information Technology Act, 2000 gives
legal recognition to digital signatures.
• Digital Signatures cryptographically bind an electronic
identity to an electronic document and the digital signature
cannot be copied to another document.
• Eg: Digital Signature is not like our handwritten
signature. It is a jumble of letters and digits.
22. DIGITALSIGNATURE ELECTRONIC SIGNATURE
Being unique to an individual,
Digital certificate is required in
case of digitally signing a
document. The certificate has
public and private key called a
'key pair'.
An electronic signature is a
method to represent signature on
a document that is computerized.
In multiple different ways a
signature either on a document or
a device can be captured.
In case of digital signatures online,
if any change is done in the
document after the signature is
applied, it will refer the signature
as invalid signature.
Alterations can easily take place in
case of
electronic signature.
Encryption done
by
certificate is very
secure.
using a digit
al
Electronic signatures as not based
on standards are inclined towards
using methods based on
proprietary aspects so are
comparatively less secure.
23. As a digital signature online is linked
with the private key of an individual, it
is unique and hard to deny
V
erification of electronic signatures
is comparatively tough.
As Digital signatures are without
fail
Although a date and time is
associated
time stamped hence are useful in a
court
with the electronic signature but
as
of law to link a person to signature at
a
separately held, open to misuse.
particular time and date.
24. Holding a log of multiple events,
digital signature can verify when any
signature was applied. Advanced
digital signature products such as
Approveme, send out notifications in
case if a log is altered.
Audit logs are not applied in an easy way
to electronic signatures.
The digital certificates represent
individual signatories by giving details
of the individual signing the document.
To say full name, email address and
company.
Details of an individual placing an
electronic signature are not held with the
signature itself therefore are more prone
to get tampered.
27. JURISDICTION ISSUE IN E-
COMMERCE
• E- commerce plays a vital role in nearly every sphere of life- with simply just a
click of the mouse we can pay our electricity/telephone bills, do online
shopping, transfer money to persons in different parts of the globe, conduct
business deals etc. An online transaction may be explained as a way of
conducting business by utilizing computer and telecommunication technology
to exchange data or conduct business. However, this boom in internet
transactions has brought a host of issues regarding jurisdiction of such
transactions to the forefront.
• The primary question that needs to be addressed is “when a transaction takes
place online, where is the contract concluded?” Justice S. Muralidhar has
stated that the traditional approach to jurisdiction invites a court to ask
whether it has the territorial, pecuniary, or subject matter jurisdiction to
entertain the case brought before it. With the internet, the question of
‘territorial’ jurisdiction gets complicated largely on account of the fact that the
internet is borderless.
28. • The Indian position theoretically matches with the US rule of minimum
contracts. For civil matters, the Code of Civil Procedure, 1908 governs the
jurisdiction aspect.
• Section 19 of the Act states that where a suit is instituted for compensation on
account of wrong done, if such a wrong was committed within the local limits
of the jurisdiction on one court and the defendant resides in or carries on
business, within the local limits of the jurisdiction of another court, the suit
may be instituted at the option of the plaintiff in either of the courts.
• Thus, for instance, if Mr. X residing in Bangalore publishes on his
website in Chennai defamatory
statements against Mr. Y. Mr.Y may sue Mr. X either in Bangalore or Chennai.
29. • Section 20 of the CPC further provides that the suit shall be instituted within
the local limits of whose jurisdiction the defendant resides or the cause of
action arises. For example, A is a tradesman in Calcutta. B carries on business
in Delhi. B buys goods of A online and requests A to deliver them to the East
Indian Railway Company. A delivers the goods accordingly in Calcutta. A may
sue B for the price of the goods either in Calcutta, where the cause of action
has arisen, or in Delhi, where B carries on business.
• Further, Section 13 of CPC provides that a foreign judgment is to be
conclusive as to any matter which has been directly adjudicated upon
between the same parties or between parties under whom they or any of
them claim litigating under the same title except under certain specified
conditions. Talking about the presumption as to foreign judgments the
provisions of the Act states that the Court shall presume upon the
production of any document purporting to be a certified copy of a foreign
judgment that such judgment was pronounced by a Court of competent
jurisdiction, unless the contrary appears on the record; but such presumption
may be displaced by proving want of jurisdiction.
30. • Casio India Co. Ltd. vs Ashita Tele Systems Pvt. Ltd. [2003]
The Hon’ble Delhi High Court has observed that once access to the Defendants
website could be had from anywhere else, jurisdiction could not be confined to
the territorial limits of the place where the Defendant resided and the fact that the
Defendants website could be accessed from Delhi was sufficient to invoke the
territorial jurisdiction of a court in Delhi.
• Another leading judgment is of (India TV) Independent News vs India
Broadcast Live [2007].
Here the Delhi High Court differed with its earlier judgment in Casio India. The
Court holds that jurisdiction of the forum court does not get attracted merely on
the basis of interactivity of the website which is accessible in the forum state but
yet held that. if the Defendants website is interactive, permitting browsers
not only to access the contents thereof but also to subscribe to the services
provided by the owners/operators, then courts jurisdiction at the place where
the website is accessed from is permissible.
31. The High Court of Delhi ruled that it did not have jurisdiction over the domain
name www.indiatvlive.com,
because the defendant was based inArizona.
The court relied on the US circuit case Compuserve Inc. v. Patterson, which
referred to a three-part test for deciding jurisdiction:
-- The defendant must purposefully avail itself of acting in the forum state or
causing a consequence in the forum state.
-- The cause of action must arise from the defendant’s activities there
-- The acts of the defendant or consequences caused by the defendant must
have a substantial enough
connection with the forum to make exercise of jurisdiction over the defendant
reasonable
32. • In Banyan Tree Holding (P) Ltd v. A. Murali Krishna Reddy and Anr,
The Delhi High Court stated that in order to establish the jurisdiction in forum
court, even when a long arm statute exits, the Plaintiff would have to show
that the Defendant purposefully availed of the jurisdiction of the forum
state by specifically targeting customers within the forum state. A mere
hosting of an interactive website without any commercial activity being shown as
having been conducted within the forum state would not enable the forum court
to have jurisdiction.
The law as laid down in the case may be summarised as follows:
-- Some commercial transaction must have taken place as a result of the site
-- The defendant must have specifically targeted the forum state.
-- Some injury must have resulted to the plaintiff due to the actions of the
defendant
-- The plaintiff must have a presence in the forum state, and not merely the
possibility of a presence
33. • In India's first case of cyber defamation, SMC Pneumatics (India) Private
Limited v. Jogesh Kwatra a Court of Delhi assumed jurisdiction over a matter
where a corporate reputation was being defamed through emails and passed
an injunction which restrained the employee from sending, publishing and
transmitting emails which are defamatory or derogatory to the plaintiffs.
• Another important legislation to be considered for online transactions is the
Information Technology Act, 2000. This legislation was enacted to change
outdated laws and deal with cyber crimes. A section which becomes relevant
from the IT Act in terms of online transactions is Section 13 (3) which provides
that:
“Save as otherwise agreed between the originator and the addressee, an
electronic record is deemed to be dispatched at the place where the originator
has his place of business, and is deemed to be received at the place where the
addressee has his place of business.”
34. • If an air ticket is booked by a Complainant over the internet which is also sent
by an Airline Company to the Complainant through email, then these would
be dispatches of electronic records.
• The request for booking of the air ticket would be an offer and the emailing
of the ticket to the consumer would be the acceptance. In terms of Sec. 13
(3) of the I.T. Act, the ticket or, in other words, the acceptance of the offer for
its purchase, would be deemed to have been received at the Complainant's
place of business.
• Resultantly, the contract for purchase of the air ticket would be taken to have
been made at the Complainant’s place of business. Acceptance of the contract
would also be deemed to have been communicated there.
36. • Electronic banking has many names like e banking, virtual banking, online
banking, or internet banking. It is simply the use of electronic and
telecommunications network for delivering various banking products and
services. Through e-banking, a customer can access his account and conduct
many transactions using his computer or mobile phone.
• Internet banking is the system that provides the facility to the customer to
conduct the financial and non- financial transactions from his net banking
account. The user can transfer funds from his account to other accounts of the
same bank/different bank using a website or an online application. The
customer uses a resource and a medium to conduct financial transactions. The
resource that a customer uses might be an electronic device like a computer, a
laptop, or a mobile phone. The internet is the medium that makes the
technology possible.
• The facility of internet banking is provided through banks and the customer
must be an account holder with any bank to get the facility available for
him/her.
E-Banking
37. • Lesser transaction costs – electronic transactions are the cheapest modes of
transaction.
• A reduced margin for human error – since the information is relayed
electronically, there is no room for human error.
• Lesser paperwork – digital records reduce paperwork and make the process
easier to handle. Also, it
is environment-friendly.
• Reduced fixed costs – A lesser need for branches which translates into a lower
fixed cost.
• More loyal customers – since e-banking services are customer-friendly,
banks experience higher loyalty from its customers.
Advantages
38. • Convenience – a customer can access his account and transact from anywhere
24x7x365.
• Lower cost per transaction – since the customer does not have to visit the
branch for every transaction, it saves him both time and money.
• No geographical barriers – In traditional banking systems, geographical
distances could hamper certain banking transactions. However, with e-
banking, geographical barriers are reduced.
39. • Internet banking is the system that provides the facility to the customer to
conduct the financial and non- financial transactions from his net banking
account. The user can transfer funds from his account to other accounts of the
same bank/different bank using a website or an online application.
• The customer uses a resource and a medium to conduct financial transactions.
The resource that a customer uses might be an electronic device like a computer,
a laptop, or a mobile phone. The internet is the medium that makes the
technology possible.
• The facility of internet banking is provided through banks and the customer
must be an account holder with
any bank to get the facility available for him/her.
E- Payment
40. • A one-time customer-to-vendor payment is commonly used when you shop
online at an e-commmerce site, such as Amazon. You click on the shopping cart
icon, type in your credit card information and click on the checkout button. The
site processes your credit card information and sends you an e-mail notifiying
you that your payment was received.
• You make a recurring customer-to-vendor payment when you pay a bill
through a regularly scheduled direct debit from your checking account or an
automatic charge to your credit card. This type of payment plan is commonly
offered by car insurance companies, phone companies and loan management
companies. this type of automated payment schedule.
• To use automatic bank-to-vendor payment, your bank must offer a service
called online bill pay.
Types of E-
Payment
41. Advantages of online
payments
• Low labour costs
• Since online payments are usually automatic, they have lower labour costs than manual
payment methods,
• such as cheque, money order, cash and EFTPOS.
• Convenience for online sales
• Online payment methods allow conveniently selling goods and services online.
• Automatic
• Online payments can be automatic, which can be convenient for you and your customers.
• Fast transaction speed
• Online transactions quickly provide feedback to you and your customers.
• Low risk of theft
• After processing delays, online payments generally go straight into your bank account, so they
have a low risk
• of theft.
42. Disadvantages of online
payments
Online payment methods have several disadvantages. Check out these
examples:
• Service fees
• Payment gateways and third-party payment processors charge service
fees.
• Inconvenient for offline sales
• Online payment methods are inconvenient for offline sales.
• Vulnerability to cybercriminals
• Cybercriminals can disable online payment methods or exploit them
to steal people’s money or information.
• Reliance on telecommunication infrastructure
• Internet and server problems can disable online payment methods.
• Technical problems
• Online payment methods can go down due to technical problems.
