Legal Recognition to Electronic records in India

LEGAL RECOGNITION OF ELECTRONIC RECORDS

A comprehensive research study on the use of Legal instruments or Legal records in electronic from in today’s technological era.

Aashima Chhabra

Symbiosis Law School, NOIDA

INDEX

S.No.	Particulars
1.	Introduction
2.	Scope and Extent of Electronic records
3.	Legal Approach of Electronic records · Legal issues in e-commerce
4.	Recognition of Electronic records · Recognition of electronic records · Digital signatures · Electronic Signatures · E-Governance · Attribution, Acknowledgement and Dispatch of Electronic Records · Secure Electronic Records and Secure Electronic Signatures · Legislations in other nations
5.	Conclusion
6.	Bibliography

INTRODUCTION

In electronic commerce, digital records are a general term that is used to describe any goods that are stored, delivered and used in its electronic format. Digital records are shipped electronically to the consumer through e-mail or download from the Internet. Examples of digital records include e-books, music files, software, digital images, Web site templates, manuals in electronic format, and any item which can be electronically stored in a file or multiple files. Digital records may also be called electronic records or e-goods. [1] Digital records include versions of products that have historically been produced and transferred as articles of tangible personal property that are now produced and transferred electronically as digital files. In many cases, a digital good is also available for transfer as an article of tangible personal property. However, it is not necessary for a digital good to have a tangible counterpart to be considered a digital good.

Today with the recent advancement in the areas of computer technology, telecommunications technology, software and information technology have resulted in changing the standard of living of people in an unimaginable way. The communication is no more restricted due to the constraints of geography and time. Information is transmitted and received widely and more rapidly than ever before. And this is where the electronic commerce offers the flexibility to business environment in terms of place, time, space, distance, and payment. This e-commerce is associated with the buying and selling of information, products and services via computer networks. It is a means of transacting business electronically, usually, over the Internet. It is the tool that leads to ‘enterprise integration’. With the growth of e-commerce, there is a rapid advancement in the use of e-contracts. But deployment of electronic contracts poses a lot of challenges at three levels, namely conceptual, logical and implementation. In our article we have discussed the scope, nature and legality and various other issues related to e-contracts.[2]

SCOPE AND EXTENT OF ELECTRONIC RECORDS

Since the beginning of civilization, man has always been motivated by the need to make progress and better the existing technologies. This has led to tremendous development and progress, which has been a launching pad for further developments. Of all the significant advances made by mankind from the beginning till date, probably the most important of them is the development of Internet.

However, the rapid evolution of Internet has also raised numerous legal issues and questions. As the scenario continues to be still not clear, countries throughout the world are resorting to different approaches towards controlling, regulating and facilitating electronic communication and commerce. The Parliament of India has passed its first Cyberlaw, the Information Technology Act, 2000 which provides the legal infrastructure for E-commerce in India. [3]

The object of The Information Technology Act, 2000 as defined therein is as under: –

“to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Banker’s Book Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.”

Towards that end, the said Act thereafter stipulates numerous provisions. The said Act aims to provide for the legal framework so that legal sanctity is accorded to all electronic records and other activities carried out by electronic means. The said Act further states that unless otherwise agreed, an acceptance of contract may be expressed by electronic means of communication and the same shall have legal validity and enforceability. The said Act purports to facilitate electronic intercourse in trade and commerce, eliminate barriers and obstacles coming in the way of electronic commerce resulting from the glorious uncertainties relating to writing and signature requirements over the Internet. The Act also aims to fulfil its objects of promoting and developing the legal and business infrastructure necessary to implement electronic commerce.

HYPOTHESIS

To review the recognition of electronic records or e-goods under the Information Technology Act.

RESEARCH METHODOLOGY

A theoretical approach has been used to analyze the recognition of electronic records or e-goods under the Information Technology Act.

LEGAL APPROACHES RELATING ELECTRONIC RECORDS

Various sections under the Information Technology Act 2000 deals with the recognition of electronic records, to what extent they can be used and their scope in today’s world. Section 4 of the Indian IT Act, 2000 confers legal recognition to electronic records. Paper based documents are equated with electronic records so long as they are made available in electronic form and are accessible so as to be usable for a subsequent reference. Section 5 confers legal recognition to digital signatures and equates it with handwritten signatures. The authentication of such digital signatures will be ensured by means of digital signatures affixed in such manner as the Central Government prescribes.

Section 6 aims to eliminate red tapism and promote use of electronic records and digital signatures in Government and its agencies. It provides for filing documents online with governmental authorities, grant of licenses /approvals and receipt/payment of money. Section 7 allows retention of electronic records akin to paper based records to fulfil legal requirement of retention of records where information is retained in electronic form and the manner in which these information is accessible.[4]

In case of the electronic as well as the traditionally printed gazette, it is stipulated that publication of rules, regulations and notifications in the Electronic Gazette shall also be legally recognized, as per section 8 of the Information technology act, 2000.[5] Therefore, where the publication of any rule, regulation, byelaw and notification is required to be published in the Official Gazette, such requirement is satisfied if the same is published electronically. Further, where such Official Gazette is published in both electronic as well as printed form, the date of publication shall be the date of publication of the Official Gazette that was first published, whatever may be the form. At the same time, no person can insist on electronic filing of returns or records, as the Government needs sufficient time to set up set infrastructure facilities that will enable them to conduct electronic transactions in the future.

Under section 10 of the act, the Central Government has been conferred with the power to make rules in respect of Digital Signature, interalia, the type, manner, format in which digital signature is to be affixed and procedure of the way in which the digital signature is to be processed.
The Central Government may, for the purposes of this Act, by rules, prescribe-

the type of digital signature.
the manner and format in which the digital signature shall be affixed.
the manner or procedure which facilitates identification of the person affixing the digital signature.
control processes and procedures to ensure adequate integrity, security and confidentiality of electronic records or payments, and
any other matter which is necessary to give legal effect to digital signatures.[6]

Legal issues in e-commerce:

There are certain types of fraud committed on E-commerce-

Online Identity Theft: Online identity theft id the practice of pretending to be someone else on the internet. Although it appears to be harmless but mostly it is related to the crime of stealing someone’s personal information for his or her own financial gain.[7]

Phishing: Phishing is stealing a person’s banking information and using that to order goods or transfer money to another bank account. There is a framework of legal regulations designed to provide protection as a consumer in physical or traditional modes means when shopping from a local shop.

Copyright Issues: The emergence of new digital technologies, such as the Internet, is having a significant impact on the copyright and related rights and the industries such as music, film and software throughout the world. It has become difficult to protect Intellectual property in E-Commerce.

Rights Management Information: RMI act identifies who has done the work, has the work been registered in the country & if there are any other owners for the work. For any publication or usage of work in theatrical issues India mandates that the author/publisher/owner be mentioned. However, when it comes to electronic rights India remains very silent on this issue.

Fair Dealing & Licensing: When the content that is accessed on the internet is stored temporarily on the computer system. This is legal under the purview of Indian Law. However, if any permanent ownership of the content is being claimed by the owner of the computer in which the content gets downloaded temporarily then it is an offence.

Domain Names Issues: The Internet Assigned Numbers Authority (IANA), manages the Domain Name System (DNS). Problems arise when several companies having similar names compete over the same domain name. The key issue for a business is to ensure that the domain name that they choose do not happen to breach the trade mark rights of anyone else nor do they copy from any copyright works which belongs to a third party. [8]

Jurisdiction Issues: Although occasionally discussed interchangeably, applicable law and choice of forum are different concepts that must both be addressed while addressing Internet jurisdiction concerns. Applicable law refers to which country’s law will be applied to a particular dispute. While some contracts will specify which law governs should a dispute arise, where such a clause has not been included, it is left to the courts to determine which law should be applied.[9]

LEGAL RECOGNITION OF ELECTRONIC RECORDS

Recognition of electronic records:

The Information Technology Act, 2000 also aims to provide the legal framework under which legal sanctity is accorded to all electronic records and other activities carried out by electronic Information Systems Control and Audit means. The Act states that unless otherwise agreed, an acceptance of contract may be expressed by electronic means of communication and the same shall have legal validity and enforceability.

Digital Signature (Amended Vide ITAA 2008):

Section 3 gives legal recognition to electronic records and digital signatures. The digital signature is created in two distinct steps. First the electronic record is converted into a message digest by using a mathematical function known as “hash function” which digitally freezes the electronic record thus ensuring the integrity of the content of the intended communication contained in the electronic record. Any tampering with the contents of the electronic record will immediately invalidate the digital signature. Secondly, the identity of the person affixing the digital signature is authenticated through the use of a private key which attaches itself to the message digest and which can be verified by anybody who has the public key corresponding to such private key. This will enable anybody to verify whether the electronic record is retained intact or has been tampered with since it was so fixed with the digital signature. It will also enable a person who has a public key to identify the originator of the message.

Electronic Signature:

Electronic signature has also been dealt with under Section 3A of the IT Act, 2000[10]. A subscriber can authenticate any electronic record by such electronic signature or electronic authentication technique which is considered reliable and may be specified in the Second Schedule. An Amendment to the IT Act in 2008[11] introduced the term electronic signatures. The implication of this Amendment is that it has helped to broaden the scope of the IT Act to include new techniques as and when technology becomes available for signing electronic records apart from Digital Signatures.

Electronic Governance:

E-governance or Electronic Governance is dealt with under Sections 4 to 10A of the IT Act, 2000. It provides for legal recognition of electronic records and signature and also provides for legal recognition of contracts formed through electronic means. Filing of any form, application or other documents, creation, retention or preservation of records, issue or grant of any license or permit or receipt or payment in Government offices and its agencies may be done through the means of electronic form. Section 4 provides for “legal recognition of electronic records”. It provides that where any law requires that any information or matter should be in the typewritten or printed form then such requirement shall be deemed to be satisfied if it is in an electronic form.

Section 5 provides for legal recognition of Digital Signatures. Where any law requires that any information or matter should be authenticated by affixing the signature of any person, then such requirement shall be satisfied if it is authenticated by means of Digital Signatures affixed in such manner as may be prescribed by the Central Government.

Section 6 lays down the foundation of Electronic Governance. It provides that the filing of any form, application or other documents, creation, retention or preservation of records, issue or grant of any license or permit or receipt or payment in Government offices and its agencies may be done through the means of electronic form[12]. Section 6A talks about the service provider as the appropriate government may authorize any service provider and vary charges as they think fit.

Section 7 provides that the documents, records or information which is to be retained for any specified period shall be deemed to have been retained if the same is retained in the electronic form provided the information therein remains accessible and represents the original information.

Section 8 provides for the publication of rules, regulations and notifications in the Electronic Gazette. It provides that where any law requires the publication of any rule, regulation, order, bye-law, notification or any other matter in the Official Gazette, then such requirement shall be deemed to be satisfied if the same is published in an electronic form. It also provides where the Official Gazette is published both in the printed as well as in the electronic form, the date of publication shall be the date of publication of the Official Gazette which was first published in any form.

However, section 9 of the Act provides that the conditions stipulated in sections 6, 7 and 8 shall not confer any right to insist that the document should be accepted in an electronic form by any Ministry or department of the Central Government or the State Government.

Attribution, Acknowledgement and Dispatch of Electronic Records:

The Act deals with attribution, receipt and dispatch of electronic records. ‘Attribution’ means ‘to consider it to be written or made by someone’. Hence, section 11 lays down how an electronic record is to be attributed to the person who originated it. Section12 provides for the manner in which acknowledgement of receipt of an electronic record by various modes shall be made. Whereas, Section 13 of the act provides for the manner in which the time and place of despatch and receipt of electronic record sent by the originator shall be identified. Generally, an electronic record is deemed to be despatched at the place where the originator has his place of business and received where the addressee has his place of business.[13]

Secure Electronic Records and Secure Electronic Signatures:

Sections 14 to16 deals with securing electronic records and electronic signatures. Section 14 provides where any security procedure has been applied to an electronic record at a specific point of time, then such record shall be deemed to be a secure electronic record from such point of time to the time of verification. Section 15 provides for the security procedure to be applied to Digital Signatures for being treated as a secure digital signature.[14]Section 16 provides for the power of the Central Government to prescribe the security procedure in respect of secure electronic records and secure digital signatures. In doing so, the Central Government shall take into account various factors like nature of the transaction, level of sophistication of the technological capacity of the parties, availability and cost of alternative procedures, volume of similar transactions entered into by other parties etc.

Legislations in other nations:

As against the lone legislation ITA and ITAA in India, in many other nations globally, there are many legislations that govern e-commerce and cyber crimes going into all the facets of cyber crimes. Data Communication, storage, child pornography, electronic records and data privacy have all been addressed in separate Acts and Rules giving thrust in the particular area focused in the Act. In the US, they have the Health Insurance Portability and Accountability Act popularly known as HIPAA which inter alia, regulates all health and insurance related records, their upkeep and maintenance and the issues of privacy and confidentiality involved in such records. There are a number of laws in the US both at the federal level and at different states level like the Cable Communications Policy Act, Children’s Internet Protection Act, and Children’s Online Privacy Protection Act etc.

CONCLUSION

India is one of the few countries other than U.S.A, Singapore, Malaysia in the world that have Information Technology Act to promote E-Commerce and electronic transactions. Indian parliament has already passed the legislation known as Information Technology Act 2000 drafted by the Ministry of Communications and Information Technology. The Act is based on the “United Nations Commission on International Trade Law” (UNCITRAL) model Law on Electronic Commerce. The passing of the Information Technology Act by the Indian Parliament and the consequent amendments to the Indian Evidence Act, etc. has now paved way for the legal recognition of transactions carried out by means of “electronic commerce.” Electronic commerce can now be carried out by persons to whom a “Digital Certificate” is issued. Any person to whom such certificate is issued can now authenticate an electronic record by affixing his digital signature to the document.

The objectives of the Act are: There is a need for bringing in suitable amendments in the existing laws in our country to facilitate e-commerce. It is, therefore, proposed to provide for legal recognition of electronic records and digital signatures. This will enable the conclusion of contracts and the creation or rights and obligations through the electronic medium. It is also proposed to provide for a regulatory regime to supervise the Certifying Authorities issuing Digital Certificates. To prevent the possible misuse arising out of transactions and other dealings concluded over the electronic medium, it is also proposed to create civil and criminal liabilities for contravention of the provisions of the proposed legislation. With a view to facilitate Electronic Governance, it is proposed to provide for the use and acceptance of electronic records and digital signatures in the Government offices and its agencies which will make the citizens interaction with the Governmental offices hassle free.

BIBLIOGRAPHY

Webopedia.com,. What is digital records? A Webopedia Definition. Retrieved 15 March 2015, from http://www.webopedia.com/TERM/D/digital_goods.html

tamrakar, V., & pal, P. E-Contracts & Its Legality – Author – Vasudha Tamrakar & Pratibha Pal. Legalserviceindia.com. Retrieved 15 March 2015, from http://www.legalserviceindia.com/articles/ecta.htm

Duggal, P. (2001). Cyberlaw In India: The Information Technology Act 2000 – Some Perspectives – Media, Telecoms, IT, Entertainment – India. Mondaq.com. Retrieved 15 March 2015, from http://www.mondaq.com/india/x/13430/IT+internet/Cyberlaw+In+India+The+Information+Technology+Act+2000+Some+Perspectives

Seth, K. (2015). ELECTRONIC GOVERNANCE UNDER INFORMATION TECHNOLOGY ACT,2000 | Karnika Seth – Cyberlawyer & Expert. Karnikaseth.com. Retrieved 15 March 2015, from http://www.karnikaseth.com/electronic-governance-under-information-technology-act2000.html

E-Commerce, L. (2015). Legal Issues in E-Commerce. Academia.edu. Retrieved 15 March 2015, from http://www.academia.edu/8148042/Legal_Issues_in_E-Commerce

Department of Information Technology,. (2010). Retrieved 15 March 2015, from http://www.icisa.cag.gov.in/images/Guidelines_for_Usage_of_Digital_Signatures_in_e-Governance_Ver.1.0.pdf

INFORMATION TECHNOLOGY ACT, 2000. (2000). Retrieved 15 March 2015, from http://www.ijlt.in/pdffiles/Information-Technology-Act-%28as%20amended%20in%202008%29.pdf.