This the question most of the webmasters are worried for, as it the question of copyrights, but it always not the case, as according to law each dispute is different from other as we have different type of obligations on other party no exact situations and no exact match, like if a company puts a tender information on a website like mytenderworld.co.in which is published in the newspaper, and similar tender information is put by the other company, it cannot be challenged as its the public offer and its the invitation to offer, not the exact individual property? But still as law is complicated and depends on the other factors and obligation, its still difficult to say the perfect answer.
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Wednesday, August 5, 2009
Monday, July 27, 2009
Case study cyber law - Infinity e-Search BPO Case
The Gurgaon BPO fraud has created an embarrassing situation for Infinity e-Search, the company in which Mr Karan Bahree was employed.
A British newspaper had reported that one of its undercover reporters had purchased personal information of 1,000 British customers from an Indian call-center employee. However, the employee of Infinity eSearch, a New Delhi-based web designing company, who was reportedly involved in the case has denied any wrongdoing. The company has also said that it had nothing to do with the incident.
In the instant case the journalist used an intermediary, offered a job, requested for a presentation on a CD and later claimed that the CD contained some confidential data. The fact that the CD contained such data is itself not substantiated by the journalist.
In this sort of a situation we can only say that the journalist has used "Bribery" to induce a "Out of normal behavior" of an employee. This is not observation of a fact but creating a factual incident by intervention. Investigation is still on in this matter.
Ref: Talwant Singh
Addl. District & Sessions Judge, Delhi
A British newspaper had reported that one of its undercover reporters had purchased personal information of 1,000 British customers from an Indian call-center employee. However, the employee of Infinity eSearch, a New Delhi-based web designing company, who was reportedly involved in the case has denied any wrongdoing. The company has also said that it had nothing to do with the incident.
In the instant case the journalist used an intermediary, offered a job, requested for a presentation on a CD and later claimed that the CD contained some confidential data. The fact that the CD contained such data is itself not substantiated by the journalist.
In this sort of a situation we can only say that the journalist has used "Bribery" to induce a "Out of normal behavior" of an employee. This is not observation of a fact but creating a factual incident by intervention. Investigation is still on in this matter.
Ref: Talwant Singh
Addl. District & Sessions Judge, Delhi
Case study cyber law - Nasscom vs. Ajay Sood & Others
In a landmark judgment in the case of National Association of Software and Service Companies vs Ajay Sood & Others, delivered in March, ‘05, the Delhi High Court declared `phishing’ on the internet to be an illegal act, entailing an injunction and recovery of damages.
Elaborating on the concept of ‘phishing’, in order to lay down a precedent in India, the court stated that it is a form of internet fraud where a person pretends to be a legitimate association, such as a bank or an insurance company in order to extract personal data from a customer such as access codes, passwords, etc. Personal data so collected by misrepresenting the identity of the legitimate party is commonly used for the collecting party’s advantage. court also stated, by way of an example, that typical phishing scams involve persons who pretend to represent online banks and siphon cash from e-banking accounts after conning consumers into handing over confidential banking details.
The Delhi HC stated that even though there is no specific legislation in India to penalise phishing, it held phishing to be an illegal act by defining it under Indian law as “a misrepresentation made in the course of trade leading to confusion as to the source and origin of the e-mail causing immense harm not only to the consumer but even to the person whose name, identity or password is misused.” The court held the act of phishing as passing off and tarnishing the plaintiff’s image.
The plaintiff in this case was the National Association of Software and Service Companies (Nasscom), India’s premier software association. The defendants were operating a placement agency involved in head-hunting and recruitment. In order to obtain personal data, which they could use for purposes of headhunting, the defendants composed and sent e-mails to third parties in the name of Nasscom.
The high court recognised the trademark rights of the plaintiff and passed an ex-parte adinterim injunction restraining the defendants from using the trade name or any other name deceptively similar to Nasscom. The court further restrained the defendants from holding themselves out as being associates or a part of Nasscom.
The court appointed a commission to conduct a search at the defendants’ premises. Two hard disks of the computers from which the fraudulent e-mails were sent by the defendants to various parties were taken into custody by the local commissioner appointed by the court.
The offending e-mails were then downloaded from the hard disks and presented as evidence in court. During the progress of the case, it became clear that the defendants in whose names the offending e-mails were sent were fictitious identities created by an employee on defendants’ instructions, to avoid recognition and legal action. On discovery of this fraudulent act, the fictitious names were deleted from the array of parties as defendants in the case.
Subsequently, the defendants admitted their illegal acts and the parties settled the matter through the recording of a compromise in the suit proceedings. According to the terms of compromise, the defendants agreed to pay a sum of Rs1.6 million to the plaintiff as damages for violation of the plaintiff’s trademark rights. The court also ordered the hard disks seized from the defendants’ premises to be handed over to the plaintiff who would be the owner of the hard disks.
This case achieves clear milestones: It brings the act of “phishing” into the ambit of Indian laws even in the absence of specific legislation; It clears the isconception that there is no “damages culture” in India for violation of IP rights; This case reaffirms IP owners’ faith in the Indian judicial system’s ability and willingness to protect intangible property rights and send a strong message to IP owners that they can do business in India without sacrificing their IP rights.
Ref: Talwant Singh
Addl. District & Sessions Judge, Delhi
Elaborating on the concept of ‘phishing’, in order to lay down a precedent in India, the court stated that it is a form of internet fraud where a person pretends to be a legitimate association, such as a bank or an insurance company in order to extract personal data from a customer such as access codes, passwords, etc. Personal data so collected by misrepresenting the identity of the legitimate party is commonly used for the collecting party’s advantage. court also stated, by way of an example, that typical phishing scams involve persons who pretend to represent online banks and siphon cash from e-banking accounts after conning consumers into handing over confidential banking details.
The Delhi HC stated that even though there is no specific legislation in India to penalise phishing, it held phishing to be an illegal act by defining it under Indian law as “a misrepresentation made in the course of trade leading to confusion as to the source and origin of the e-mail causing immense harm not only to the consumer but even to the person whose name, identity or password is misused.” The court held the act of phishing as passing off and tarnishing the plaintiff’s image.
The plaintiff in this case was the National Association of Software and Service Companies (Nasscom), India’s premier software association. The defendants were operating a placement agency involved in head-hunting and recruitment. In order to obtain personal data, which they could use for purposes of headhunting, the defendants composed and sent e-mails to third parties in the name of Nasscom.
The high court recognised the trademark rights of the plaintiff and passed an ex-parte adinterim injunction restraining the defendants from using the trade name or any other name deceptively similar to Nasscom. The court further restrained the defendants from holding themselves out as being associates or a part of Nasscom.
The court appointed a commission to conduct a search at the defendants’ premises. Two hard disks of the computers from which the fraudulent e-mails were sent by the defendants to various parties were taken into custody by the local commissioner appointed by the court.
The offending e-mails were then downloaded from the hard disks and presented as evidence in court. During the progress of the case, it became clear that the defendants in whose names the offending e-mails were sent were fictitious identities created by an employee on defendants’ instructions, to avoid recognition and legal action. On discovery of this fraudulent act, the fictitious names were deleted from the array of parties as defendants in the case.
Subsequently, the defendants admitted their illegal acts and the parties settled the matter through the recording of a compromise in the suit proceedings. According to the terms of compromise, the defendants agreed to pay a sum of Rs1.6 million to the plaintiff as damages for violation of the plaintiff’s trademark rights. The court also ordered the hard disks seized from the defendants’ premises to be handed over to the plaintiff who would be the owner of the hard disks.
This case achieves clear milestones: It brings the act of “phishing” into the ambit of Indian laws even in the absence of specific legislation; It clears the isconception that there is no “damages culture” in India for violation of IP rights; This case reaffirms IP owners’ faith in the Indian judicial system’s ability and willingness to protect intangible property rights and send a strong message to IP owners that they can do business in India without sacrificing their IP rights.
Ref: Talwant Singh
Addl. District & Sessions Judge, Delhi
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