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Pixels & Privacy- The Delhi High Court’s Landmark Ruling on reporting Non-Consensual Intimate Images

November 12, 2023 — Leave a comment

Mrs. X v. Union of India & Ors. (2023:DHC:2806)

Facts of the Case-

  1. The Petitioner herein is a married woman with a nine-year-old son. In 2019, the Petitioner became acquainted with the Accused who approached her through social media and introduced himself as a British Chartered Accountant. In July 2020, the Accused came over to Petitioner’s place and forced himself upon her. He allegedly clicked explicit pictures of the Petitioner, but also transferred to himself from the Petitioner’s phone her explicit pictures, that had been taken for the purpose of sharing with her husband. 
  1. The Accused involved the minor son of the Petitioner in various sexual acts as well. Thereafter, the Petitioner lodged a complaint against the said Accused at P.S Lajpat Nagar, and on the basis of which, a Zero FIR was registered. The Accused threatened the Petitioner that he would leak her sexually explicit photographs on various pornographic websites and that he would kill her son if she did not pay huge amounts of money to him. 
  1. The Petitioner was extorted into paying lakhs of money to the Accused, along with handing him all her jewellery. As the Petitioner was unable to pay any more money, the Accused leaked the Petitioner’s explicit images on various pornographic websites without her consent. This led to the Petitioner addressing a complaint dated 03.08.2021 to the SHO at P.S Lajpat Nagar. The said complaint stated that the Accused had made a YouTube channel in the Petitioner’s name, and has been posting her explicit videos and photographs on a daily basis. 
  1. Despite approaching the Grievance Cells of various Intermediaries (Google, Youtube, Bing, etc), and filing cyber complaints, her explicit images were not taken down. Thus, the Petitioner approached the Delhi High Court U/A 226 r/w S.482 CrPC, seeking blocking of certain sites exhibiting intimate images of the Petitioner and for registration of an FIR arising out of the complaint dated 03.08.2021.

The Hon’ble Court’s Analysis & Decision-

*The scope of the instant Writ Petition u/a 226 was expanded, and the directions rendered were limited to search engines, MEITY and Delhi Police.* 

  1. The Court analysed NCII (Non-consensual intimate image) vis-a-vis IT Act & Rules- Rule 3(2)(b) of the IT Rules, which lays down the grievance redressal mechanism that is to be followed by an intermediary, more or less defines NCII as any content which prima facie exposes the private area of any individual/shows such individual in full or partial nudity/shows or depicts such individual in any sexual act or conduct/is in the nature of impersonation in an electronic form, including artificially morphed images. Rule 3(2)(b) is not a charging offence. It is only under Section 66E of the IT Act that violation of privacy of an individual is punished with imprisonment which may extend to three years or with fine not exceeding two lakhs, or with both.
  1. Emphasis was supplied on the role of Search engines (para 30): “Search engines do not themselves store and transmit content, they allow users to locate and visit content. Search engines further rank the content in their order of relevance in a bid to solve the user’s query at the earliest. It is relevant to note that as search engines do not host content per se, they cannot take down the content available on a third-party platform. However, they can de-index specific URLs that can render the said content impossible to find due to the billions of webpages available on the internet and, consequently, reduce traffic to the said website significantly.” 
  1. Despite NCII abuse being perpetuated by a third-party user and causing harm to a stranger, the intermediary becomes liable for the conduct of the third-party user. Further, the IT Rules also devise a mechanism for the user/victim to directly approach intermediaries for removal of NCII content without having to obtain a Court order. Therefore, apart from making its own reasonable efforts in not publishing offending content, intermediaries can be requested to takedown offending content after being informed by a Court order or by an order of the appropriate Government or by the user themselves. 
  1. If the individual has the right to informational privacy, it also subsumes the individual’s right to be forgotten which has been held to be the consequence of the dignity of an individual and, thus, a facet of the right to privacy. A Division Bench of the Kerala High Court has recently in Vysakh K.G. v. Union of India and Ors., 2022 SCC OnLine Ker 7337, while adjudicating upon right to privacy vis-à-vis right to information, goes on to observe that, in the digital context, the “right to delisting” and “right to oblivion” are facets of the right to be forgotten. 
  1. The argument that has been advanced in the present case by the learned Senior Counsel appearing for the Respondent (Intermediaries) is that as search engines merely provide access to content and are not responsible for hosting the said content, directions must be rendered to the publishers and not the search engines themselves. It is at this stage that a search engine’s role in ensuring that one’s right to privacy is not contravened comes into prominence, especially with Rule 3(1)(m) which states that the intermediary shall respect all the rights accorded to the citizens under the Constitution, including Articles 14, 19 and 21. It is further essential to state that the continued existence of NCII content on the internet does not serve any public interest and it is punishable under Section 66E of the IT Act. The argument, therefore, put forth on behalf of the Intermediaries was not accepted by the Hon’ble Court. 
  1. Social Responsibility of Search Engines (para 46 onwards)–  The newly amended Rule 3 of the IT Rules explicitly pronounces the obligation of the intermediary to not only “inform”, but to make “reasonable efforts” to ensure that its users do not publish content that is prohibited under Rule 3(1)(b). Thus, any directions given herein fall squarely within the statutory regime with regard to obligations of intermediaries. 
  1. Search engine plays an important role in the dissemination of content and its powers in connecting the said content to the consumers is undeniable. There resides a social obligation in these intermediaries to be proactive in de-indexing such links when it comes to its knowledge that such content is illegal. The Hon’ble High Court found the suggestion untenable that the user/victim must approach either the intermediary in question or the Courts every single time the NCII content is duplicated. Such a suggestion also frustrates the legislative intent behind the IT Rules which devises a time-bound schedule in removal of such content. The Hon’ble High Court further observed that an approach that entails the victim/user having to sift through the internet to identify and then share every URL hosting their NCII is unconscionable.
  1. Moreover, search engines cannot hide under the garb of not possessing the adequate technology to remove NCII content which has been reported without the victim/user having to approach the intermediary again and again. As per the Affidavit of Google LLC, hash-matching technology, generates a unique identifier/fingerprint/hash, exists for the purpose of removing CSAM. This technology allows detection and removal of the matched content that has previously been removed. For the purposes of removal of NCII, once such content has been identified and removed, the hash-matching technology can store only the unique identifier pertaining to the NCII content and in the event that such content is re-uploaded, it can filter out the same by going through its database of such fingerprints. A similar tool has already been built by Meta, and Microsoft. YouTube has also developed CSAI (Child Sexual Abuse Imagery) Match which is used by NGOs and other companies to identify abusive content. 
  1. The Hon’ble High Court stated that entities of the nature of Google and Microsoft, considering their ubiquity, cannot abscond or withdraw from their duties to the public at large in the name of reducing the liability they might incur, the Hon’ble Court was in fact inclined to agree with the submissions of the learned Senior Counsel appearing for Google and Microsoft that any direction that necessitates pro-active filtering on the part of intermediaries may have a negative impact on the right to free speech. No matter the intention of deployment of such technology, its application may lead to consequences that are far worse and dictatorial.
  1. One of the concerns that arises when we consider the right to privacy of an individual under Article 21 is its impact on the right to freedom of expression and speech. This issue requires an interpretation of the phrase “such content” in Rule 3(2)(b) and whether the same means a specific instance of identified NCII, as has been contended by the intermediaries, or all such content of identical nature, as submitted by the learned Amicus Curiae. The Hon’ble High Court observed that construing the phrase “such content” as “all content” is necessary to reduce the burden on the user/victim, however, “all content”, access to which is to be disabled, must pertain to NCII abuse that has already been reported.
  1. Search engines being an intermediary cannot hide behind the argument that they merely provide access to third-party websites as due diligence exercised as per Rule 3 is applicable to all intermediaries. In addition to “actual knowledge” as defined in Shreya Singhal v. Union of India as a Court order or upon being notified by the appropriate Government, Rule 3(2)(b) and (c) of the IT Rules now allows the victim/user to approach the intermediary on their own with their grievance. It mandates a timeline that must be adhered to when it comes to disabling access/de-linking the offending content. If read holistically, if the user/victim is required to approach with each specific URL again and again, this will only frustrate the purpose of the timelines and the grievance mechanism redressal as expounded under the IT Rules. 
  1. It has been submitted that the sustained practice with regard to content removal under the IT Act has been to provide specific URLs, however, this practice fails to account for a grievance redressal mechanism available to the user/victim and it is not justifiable, morally or otherwise, to suggest that an NCII abuse victim will have to constantly subject themselves to trauma by having to scour the internet for NCII content relating to them and having to approach the authorities again and again. Once it has been reported by the user/victim or a Court order or an order of the appropriate Government has been rendered, then the search engine cannot contend that any filtering of the content that is done subsequent to the reporting or the Order is proactive in nature; it can only be termed as being in pursuance to the reporting of existence of such content specific to an individual or a judicial Order. 
  1. The fact that search engines do not host or publish or create content themselves is of no consequence when it comes to the question of removal of the access to the offending content. It is undeniable that they do have the ability, the capacity, and the legal obligation to disable access to the offending content; this responsibility of the search engine cannot be brushed under the carpet on the ground that it does not host content. 
  1. The Hon’ble High Court in the said judgment painfully notes that there is an abysmal absence of a collaborative effort that should ideally be undertaken by the intermediaries and the State. The focus of such entities and authorities should be on the quick redressal of the complaint brought before them rather than the shirking of blame or making submissions on the onerous nature of their duties. In the process of shirking responsibility, precious time is lost in removal of the offending content and enables the offender to keep reposting the content. The endeavour of every entity involved should be to expeditiously resolve the issue. 

Directions & Recommendations by the Hon’ble Delhi High Court:

  1. On approaching the Court for a takedown order in a matter involving NCII content, the Petitioner must, along with the petition, file an affidavit in a sealed cover identifying the specific audio, visual images and key words that are being complained against, in addition to the allegedly offending URLs for ex facie determination of their illegality. 
  1. The Grievance Officer appointed by the intermediary must be appropriately sensitised. The definition of NCII abuse must be interpreted liberally by the intermediaries to include sexual content obtained without consent as well as sexual content obtained and intended for a private and confidential relationships. 
  1. The “Online Cybercrime Reporting Portal”, must have a status tracker for the complainant, commencing from filing of a formal complaint to the removal of the offending content. The portal must display various redressal mechanisms that can be accessed by the victim in cases of NCII. This display should be in all languages specified in the Eighth Schedule. The Portal, along with every other website of Delhi Police, should also display the contact details of each District Cyber P.S present in the NCT of Delhi.
  1. On the receipt of information, noting the nature of NCII content, the Delhi Police must immediately register a formal complaint in order to initiate an investigation and bring the perpetrators to book as soon as possible so as to prevent the repeated upload of the content. 
  1. Every District Cyber P.S must have an assigned Officer who must liaise with the intermediaries against which grievances have been raised by the victim who has approached the Delhi Police and an endeavour should be made to ensure that the grievance is resolved within the time schedules stipulated under the IT Rules. The intermediaries are directed to cooperate unconditionally as well as expeditiously respond to Delhi Police.
  1. A fully-functioning helpline available round-the-clock should be devised for the purpose of reporting NCII content. Operators and individuals manning this helpline must be sensitised about the nature of NCII content and must, under no circumstances, indulge in victim-blaming or shaming the victim. These operators should also have a database of organisations with registered counsellors, psychologists and psychiatrists available for reference to the victims. The Delhi Legal Services Authority may also be apprised and engaged in case the victims need legal aid.
  1. Search engines must employ the already existing mechanism with the relevant hash-matching technology on the lines of the one developed by Meta as has been discussed above. They cannot be allowed to avoid their statutory obligations by stating that they do not have the necessary technology, which is patently false as has been exhibited during the course of hearing. 
  1. The reporting mechanism under Rule 3(2)(c) of the IT Rules must be conveyed to the users by the intermediaries by way of prominent display of the same on the website of the intermediary. It is necessary for users to be made aware of the reporting mechanism and the onus for educating the users lies on the intermediaries.
  1. The timeframe as stipulated under Rule 3 of the IT Rules must be strictly followed without any exceptions, and if there is even minor deviation from the said timeframe, then the protection from liability under S, 79 of the IT Act cannot be invoked by the search engine. When a victim approaches a Court or a law enforcement agency and obtains a takedown order, a token or a digital identifier based approach must be adopted by search engines to ensure that the de-indexed content does not resurface. 
  1. As a long-term suggestion, a trusted third-party encrypted platform may be developed by MEITY in collaboration with various search engines under Rule 3(2)(c) for registering the offending NCII content or the communication link by the user/victim. Accordingly, the intermediaries in question may assign cryptographic hashes/identifiers to the said NCII, and automatically identify and remove the same through a safe and secure process.

The Information Technology Amendment Rules, 2023

June 27, 2023 — Leave a comment

IT AMENDMENT RULES 2023: An Overview

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023

INTRODUCTION 

The aim of this primer is to provide an overview of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (“the Amendment”), which amend the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 Rules”). 

The Ministry of Electronics and Information Technology (“Meity”) amended the 2021 Rules, with the aim  to inter alia regulate the online gaming in India, along with ensuring safety to its users, broadly by governing-

  1. Online games
  2. Online real money game
  3. Permissible online game
  4. Permissible online real money game
  5. Online gaming intermediary
  6. Online gaming self-regulatory body and
  7. Restricting the spread of fake & misinformation. 

THE BASICS

The Amendment defines an ‘online game’ as a game that is offered via the internet, wherein the same can be accessed by any user through a computer resource or upon the access of an intermediary.

STAKEHOLDER ANALYSIS

  1. Online Game

The Amendment classifies online games into three subcategories. They are-

i) Online real money game- The Amendment defines ‘online real money game’ as an online game, wherein the user deposits in the form of cash/kind with an expectation and intention of earning winnings in the form of cash/kind on such deposits made. The Amendment further explains the term ‘winnings’ as any prize in cash/kind distributed to the user of the online game based on their performance in accordance with the rules of the game.

ii) Permissible online game- The Amendment defines ‘permissible online game’ as a permissible online real money game, and also includes: online game(s) which is not considered as online real money game (reference to Rule 4C of the Amendment). With this definition, the ambit of the 2021 Rules gets widened as the Central Government will have the power to extend and direct the applicability of the said rules to even those online games that do not require a user to make a deposit. Hence, even covering casual games under the 2021 Rules.

iii) Permissible online real money game- The Amendment defines ‘permissible online real money game’ as an online real money game that has been verified by an online gaming self-regulatory body under Rule 4A of the Amendment.

  1. Online Gaming Intermediary (“OGI”)

i) With the release of the Amendment, it seeks to classify a new category of intermediary i.e., OGI. The Amendment defines an ‘OGI’ as any intermediary that seeks to give access to one or more online games to users on its platform.

ii) Moreover, what is essential to note from the Amendment is that an OGI is required to comply with not just the due diligence obligations mentioned under Rule 3, but also with the additional due diligence requirements under Rule 4, on similar lines, like that of a significant social media intermediary may be required to do under the 2021 Rules.

  1. Online Gaming Self-Regulatory Body (“SRB”)

The Amendment welcomes another soon-to-be established entity(ies) within the purview of the said rules and allows such entity(ies) to self-regulate the online gaming industry in India, in accordance with the 2021 Rules. This self-regulatory body(ies) is to be called as an ‘online gaming self-regulatory body.’ They are defined as an entity designated by Meity under Rule 4A of the Amendment. The primary responsibility of the SRB is to verify ‘online real money game’ as ‘permissible online real money game.’

  1. Fact Check unit of the Govt.
  • A significant change brought in by the Amendment, (apart from regulating online games and platforms), pertains to curtaining fake and misleading information in relation to any business of the Central Government, which has been hosted, published, and transmitted on the intermediary’s platform. 
  • Further, the Amendment directs Meity to appoint a fact-checking unit of the central government, to identify and restrict the flow of fake and misleading information that pertains to the business affairs of the central government. 

DUE DILIGENCE- OGI

The Amendment aims to bring online gaming intermediaries to the same table along with the social and significant social media intermediaries. Earlier, the due diligence obligations mandated under Rule 3 of the 2021 Rules, only applied to social media intermediary(ies) and significant social media intermediary(ies). However, with the present Amendment, now even an OGI will be required to comply with Rule 3 of the 2021 Rules, including some new requirements/obligations brought in by the Amendment-

  1. An OGI shall not offer its users an online game that results in ‘user harm.’ The term ‘user harm’ has been explained in the Amendment as any effect that is considered detrimental to a user and/or child;
  2. An OGI shall not offer any online game unless it is verified as a permissible online game;
  3. Intermediaries shall not indulge in advertising/surrogate advertising or promoting a non-verified online game, and/or an OGI promoting such a game;
  4. An OGI that offers ‘permissible online real money game(s)’ is required to inform its users about the change in its rules and regulations, privacy policy, or user agreement within a time frame of 24 hours and not later than that;
  5. An OGI that offers ‘permissible online real money game’ shall on receipt of an order, provide all and/or any information under its possession to the government agency for the purpose of investigation, detection, prevention, prosecution of offenses, etc, within a time frame of 24 hours and not later than that;
  6. An OGI is required to prominently publish on its website and mobile app, the name and contact details of the grievance officer, along with the complaint mechanism for the user/victim to follow for addressing their complaints and grievances;
  7. Any person being aggrieved by the decision of the grievance officer of the OGI may prefer an appeal within 30 days from the receipt of such decision to the Grievance Appellate Committee;
  8. The OGI and the SRB are required to comply with the orders passed by the Grievance Appellate Committee and further are required to publish a compliance report on their respective website(s).

ADDITIONAL DUE DILIGENCE- OGI

It is essential to note here that following the 2021 Rules, the additional due diligence requirements under Rule 4, were only supposed to be a compliance obligation for the significant social media intermediary. However, with the present Amendment, even an OGI offering permissible online real money game, irrespective of its user base will be required to comply with Rule 4, including-

  1. Appointing a Chief Compliance Officer;
  2. Appointing a Nodal contact person, who shall be a resident in India;
  3. Appointing a resident Grievance officer, who shall be a resident in India;
  4. Publishing periodic reports monthly in relation to the complaints received, and the course of measure(s) duly taken;
  5. Maintaining a physical address in India, and publishing its details on the website and mobile application;
  6. Implementing a complaint and grievance mechanism for the users’ to file, track and check the status of their complaints;
  7. Verifying the users’ accounts, and marking such users with a visible mark;
  8. Displaying the verified mark obtained after due verification done from the concerned SRB;
  9. Informing the users’ about withdrawal/refund policy, manner of determining and distribution of winnings, fees and charges payable by the users, KYC procedure, measures undertaken for protecting the users’ deposits, and the procedure followed for verification of online real money game;
  10. Mandatory KYC before accepting deposits from the users;
  11. Prohibiting and banning OGI from offering its users’ credit facilities and/or enabling third-parties to finance for the purpose of playing such online game.

ELIGIBILITY CRITERIA FOR SRB

  • Verification of online real money game shall only be done by designated SRB(s). An entity may apply to Meity for being designated as an SRB, provided they fulfil the following-
  1. Entity registered under section 8 of the Companies Act, 2013;
  2. Membership is representative of the online gaming industry;
  3. The number of board of directors shall be 8. They shall have no conflict of interest, and possess skills, experience, and knowledge as mentioned under the said rules, for performing their roles & duties as a self-regulating body;
  4. Must have sufficient funds for performing their duties as a self-regulatory body;
  5. The MoA & AoA of the entity shall be compliant with the 2021 Rules and the Amendment.

VERIFICATION OF ONLINE REAL MONEY GAME

  • Upon receiving an application from an online real money game, the SRB shall verify and declare them as permissible online real money game, provided the following is satisfied-
  1. Such an online real money game shall not contain wagering on any outcome; and
  2. The OGI and such online real money game shall be compliant with Rule 3 and 4, law relating  to the age and competency to contract, along with the SRB’s framework.
  • The rule further clarifies the time-frame given to the SRB shall be three (3) months, in which they have to declare the applicant (online real money game) as permissible online real money. It is further stated that initially the SRB shall only rely upon the information provided to them by the applicant. However, the SRB shall complete the due inquiry with the said time-frame to declare them as compliant and permissible or reject their application in writing.
  • SRB must publish on their website and/or website, a list of all the permissible online real money game, their verification expiry date, suspended and revoked online real money game.
  • SRB must maintain and publish their members’ list on their website and/or mobile application.
  • SRB shall have the powers to suspend and revoke the verification of any online real money game, if they are satisfied that the said online real money game is not in compliance with the 2021 Rules and the Amendment.
  • The online real money game and the OGI must display the verified mark granted by the SRB on their platforms.
  • Every SRB is required to publish on their website and/or mobile application their framework of verifying online real money game, which shall also include-
  1. Measures taken to ensure that an online real money game is not against the interests of sovereignty, integrity and security of the nation;
  2. Measures to ensure that an online real money game does not cause user harm as described under the Amendment;
  3. Measures taken to ensure protection to minors;
  4. Measures undertaken to ensure protection against gaming addiction, fraud, financial loss, etc.
  • The Central government before issuing directions for blocking under section 69A of the IT Act, 2000, against a permissible online real money game, may consider the details published by the SRB.
  • SRBs’ must publish a framework of grievance redressal along with the contact details of their Grievance Officer. The complaints must be acknowledged within 24 hours by the Grievance officer, and resolution must be done within 15 days from the date of the complaint.
  • Meity may suspend and/or revoke the designation of the SRB, if it is satisfied and found necessary. However, the SRB shall be given an opportunity to be heard.

APPLICABILITY & COMPLIANCE OF CERTAIN OBLIGATIONS

The Amendment further states that the compliance obligations upon the OGI shall come into force only after the expiry of three (3) months from the date on which at least three (3) SRBs would have been designated and established in accordance with Rule 4A of the Amendment.

‘ONLINE GAME’ OTHER THAN ONLINE REAL MONEY GAME

The said rules may apply to only those online games, that come under the ambit of online real money game and permissible online real money game. However, if the Central government finds it necessary in the interest and security of the State, public order, and preventing user harm, etc, in those circumstances, even those online game other than online real money game will be required to comply with the following obligations-

  • the obligations under sub-clauses (ix) and (x) of clause (b) of sub-rule (1) of rule 3; sub-rules (1), (5), (6), (7), (10), and clause (d) of sub-rule (11) of rule 4; along with rule 4A.

CONCLUSION

With the significant rise in the development of online games around the globe, the massive user and fan base, along with the amount of money involved were essential to be considered, before regulating this space. However, letting this space go unregulated would be detrimental to the country’s economy and its national security. The notified Amendment aims to promote online gaming by making the industry more accountable and transparent to its users. 

However, there are still some questions unanswered, such as why Meity took this approach to bring online games and the platforms as ‘intermediaries’ and not as ‘publishers’ under the 2021 Rules. Moreover, there are still vagueness and clarifications required in relation to terms such as ‘online real money game’ and ‘user harm’, as the ambit of both these terms is too wide, and might result in overregulation and hamper the growth of the industry as a whole.

Interestingly, the Amendment has been challenged recently in the Bombay High Court, within a week of its notification. The writ petition primarily questions the power of Meity under Rule 3(1) (b) (v), which seeks to appoint a fact-checking unit of the central governing for curbing fake and misleading information relating to the central government’s business affairs.

Lastly, the true impact of this Amendment could only be judged after the provisions come into force, and how the industry reacts toward it.

A Guide to India’s Data Protection Law:         The Digital Personal Data Protection Bill, 2022

March 23, 2023 — Leave a comment

              

Background & Evolution of Privacy in India

A.  The journey of India’s Right to Privacy is more than 6 decades old, and it was only in the year 2017, the Apex Court of the land recognized and declared the “Right to Privacy” as a fundamental right enshrined under Article 21 of the Indian Constitution, 1950, in a landmark decision in  Justice K S Puttaswamy(Retd.), & Anr v UOI& Ors(2017). Little did we know, but this landmark decision changed the course of History.

B.  With the advent of the right to privacy as a fundamental right, a Committee of experts was set up in August 2017, for the purpose of preparing a draft report on Data Protection under the leadership of Justice B.N Srikrishna, (former) Judge of the Supreme Court. 

C. The Experts Committee submitted its report along with a draft version of the legislation in the year 2018 which was titled “Personal Data Protection Bill, 2018” (“PDP, 18”). The PDP, 18 was further analyzed and approved by the Cabinet Ministry on 4th December, 2019. Later, the draft version was introduced in the Lok Sabha, however, the title was changed to- Personal Data Protection Bill, 2019 (“PDP, 19”). 

D.  The PDP, 18 and PDP, 19 were drafted for the same purpose, but both had flaws that did not make them a comprehensive draft version of the law, and hence, none of them were adopted/passed. With the aim to make PDP, 19 more comprehensive, it was referred to a newly constituted committee i.e., Joint Parliamentary Committee (“JPC”).

E. The JPC on 16th December 2021 during the Winter session, released a recommendation report on the PDP, 19 with 81 amendments and 12 recommendations. The recommendation report was released after 2 years to the public and was renamed “the Data Protection Bill, 2021” (“DPB, 21”), with a widened scope of the bill in its entirety (inclusion of non-personal data, etc).

F.   However, the DPB, 21 was withdrawn in the Parliament in the month of August 2022 on the ground that the Government was working on a more comprehensive legal framework, and the present draft version did not allow it.

G. Surprisingly, on 18th November, a 4th draft version of the bill was introduced for public consultation. This time the title of the draft version has been changed to- The Digital Personal Data Protection Bill, 2022 (“DPDP, 22”)

The purpose of this article is to be a go-to guide for your understanding of the DPDP, 22. Here, we will not just summarize the entire draft bill, but highlight all the key provisions from an industry perspective.

PURPOSE:

The purpose of this legislation is to regulate the processing of digital personal data, to enable an individual to practice his/her right to privacy of their personal data, and to ensure that such processing is done for a lawful purpose. 

APPLICABILITY:

The law applies to the processing of “digital personal data” and excludes “offline personal data”, however, if such offline personal data is later digitized then the processing of such data would fall under the ambit of this Bill. 

Further, from the territorial scope of the DPDP, 22, it applies to data processing both within and outside the territory of India. For the law to apply outside the territory of India, it is essential that such processing of digital personal data is related to-

  • Any profiling of a Data Principal within the territory of India; or
  • Any activity pertaining to offering goods/services to users (Data Principal) inside the territory of India.

The provisions of the DPDP, 22 shall not apply to-

  • Any non-automated processing of personal data;
  • Offline personal data;
  • Processing, done by an individual for a personal/domestic purpose;
  • If the personal data of an individual has been existing in a record for at least 100 years.

Surprisingly, there is no classification of the personal data provided in the DPDP, 22. However, the sector-specific regulations in due time may establish additional requirements pertaining to safeguarding such personal data. Lastly, the DPDP, 22 does not apply to non-personal data as compared to its previous version.

CONSENT 

  • The DPDP, 22 under section 5 states the grounds on which the Data Fiduciary shall process the personal data of the Data Principal. The processing under the DPDP, 22 shall be considered lawful only when the Data Principal has given consent or the consent is deemed to have been given.
  • The DPDP, 22 under section 7 defines the concept of “Consent” and states- that when the Data Principal has freely given, a specific, informed, and unambiguous indication to a Data Fiduciary for processing their personal data for a “specific purpose.” However, the same must be shown through an affirmative action by the Data Principal.
  • Moreover, the DPDP, 22 under section 6 provides for a mandatory requirement that must be fulfilled by the Data Fiduciary on or before seeking the consent of a Data Principal. The Data Fiduciary is mandated to provide an itemized notice to the Data Principal in clear language, which shall contain the description pertaining to the data that is required to be collected from the user and the purpose behind it.
  • In the itemized notice that is issued for seeking/requesting consent from the Data Principal for processing their personal data, the contact details of the authorized person/data protection officer of the Data Fiduciary must be mentioned. The Data Principal shall have the right to access such itemized notice requesting consent in either English or any language specified in the Eighth Schedule to the Constitution of India.
  • It is also essential to note that any additional personal data which is not necessary for the performance and fulfillment of a contract/agreement between the Data Principal & Data Fiduciary. In such scenarios, the Data Principal shall be free to refrain from giving consent.

DEEMED CONSENT

Here are some instances mentioned in the DPDP, 22 wherein, it is presumed that the processing of personal data is based on Deemed Consent. Deemed consent has been discussed under section 8 of the DPDP, 22. At present the DPDP, 22 provides 9 instances wherein consent is considered as deemed, and they are-

  1. In an event wherein, the Data Principal voluntarily provides their personal data to the Data Fiduciary, and the same is reasonably expected from them;
  2. In an event, wherein, the processing is based on the performance of any function under law, or provision of any service, or benefit to the Data Principal/issuance of any certificate/license or permit to any action of the Data Principal by any State institutions or agencies;
  3. Processing done in relation to compliance with court order(s)/judgement(s);
  4. Processing done in relation to medical emergency pertaining to threat to life/health of the Data Principal or any other person;
  5. Processing done in relation to provide medical treatment/assistance to people during epidemic, outbreak, and/or any such threat to public health;
  6. Processing done in relation to taking safety measures for providing services to people during disaster, and/or breakdown of public order;
  7. Processing done in relation to employment-related purposes;
  8. Processing done on the grounds of public interest;
  9. Processing done for any fair and reasonable purpose- wherein the legitimate interests of the Data Fiduciary outweigh any adverse effect on the Data Principal, public interest and the reasonable expectations of the Data Principal.

It is essential to note here that the notice mentioned under section 6 is not mandated where deemed consent is given by the Data Principal.

CROSS-BORDER TRANSFERS

The DPDP, 22 also lays down a provision for the cross-border transfer of digital personal data. Although, it does not specify or name which countries/territories will be treated as “trusted geographies” for permitting the cross-border transfer of digital personal data. However, section 17 states that the Central Government will only allow and notify those countries/territories for cross-border transfers, based on an assessment as it may consider necessary.

EXEMPTIONS

Moreover, under section 18, there are some exemptions listed out, which simply means that the provisions of the DPDP, 22 shall not apply, except section 9(4)- which states that the Data Fiduciary and Data Processor shall take all the reasonable security measures in order to mitigate potential breaches. The exemptions have been listed below-

  • Wherein, processing such personal data is essential to enforce a legal right/claim;
  • Wherein, the processing of personal data is in the interest of prevention, detection, investigation/prosecution of any offence/contravention of any law;
  • Wherein, the processing of personal data is done by the court of law, tribunal, quasi-judicial body, etc;
  • Wherein, the personal data belongs to an individual outside the Indian territory and is processed based on a contract between an individual from outside the Indian territory and a person based in India.

The DPDP, 22 further permits the government to exempt any of its agencies from the application of this law on the ground-

  • In the interest of the sovereignty & integrity of India;
  • State’s security;
  • Friendly relations with foreign States;
  • Public order.

OBLIGATIONS OF Data Fiduciary

The DPDP, 22 under section 9 onwards up to section 11 states the obligations of Data Fiduciary. 

  • Under section 9– This provision deals with the general obligations, such as the Data Fiduciary shall be held solely responsible in relation to complying with this law, even in cases wherein the data is processed on behalf of them by Data Processors and/or by another Data Fiduciary.
  • ensuring that the personal data processed is accurate and complete especially when such data is likely to be disclosed to another Data Fiduciary and/or the data processed will be used to make decisions that affects the Data Principal itself.
  • The Data Fiduciary shall also implement both technical and organizational measures with the aim to ensure complete compliance with this law. The Data Fiduciary and Data Processor shall ensure that they take all the possible reasonable measures and safeguards to mitigate potential breach.
  • In an event of a personal data breach, the Data Fiduciary or the Data Processor (as the case may be), shall notify the Data Protection Board along with each affected Data Principal.
  • The Data Fiduciary shall ensure that the personal data of the Data Principal is not retained once the purpose behind such processing is fulfilled, and/or where retention of the data is no more required for any legal/business purpose.
  • The Data Fiduciary is also required to publish the contact details of the data protection officer or the authorised personnel who may answer on behalf of the Data Fiduciary to all such questions/queries posed by the Data Principals pertaining to the processing of their personal data. They are also required to ensure a mechanism is at place that shall focus on grievance redressal.
  • Under section 10– These provisions lay out the additional obligations of the Data Fiduciary pertaining to the processing of children’s personal data.
  • Under the DPDP, 22 for processing of a child’s (anyone who has not completed 18 years of age) personal data, the Data Fiduciary is mandated to seek the parental consent, and only after obtaining the same, they may process the child’s data.
  • Furthermore, a Data Fiduciary shall not process a child’s personal data in scenarios where such processing will likely cause harm to that child.
  • A Data Fiduciary shall not track nor monitor a child’s behviour or direct targeted advertising upon a child.
  • Under section 11–  This provision states the additional obligations of a Significant Data Fiduciary. However, before getting into the obligations, we need to understand who exactly falls under the ambit of a “Significant Data Fiduciary.” 
  • A Significant Data Fiduciary is any Data Fiduciary or a class of data fiduciaries that are notified by the Central Government. They shall be notified based on some factors such as- the amount of personal data that is being processed; the risk of harm that the Data Principals are likely to face; its impact on the integrity & sovereignty, security, and public order of the nation.
  • Furthermore, a Significant Data Fiduciary is required to appoint a Data Protection Officer, and an independent Data Auditor, and is further mandated to take measures such as Data Protection Impact Assessment, etc.

RIGHTS & DUTIES OF Data Principal

The rights and duties of the Data Principal have been laid down in Chapter 3 of the DPDP, 22 starting from section 12 up till section 16. Here is the list of rights mentioned under section 12–

  1. The Data Principal shall have the right to seek confirmation from the Data Fiduciary on whether their data has been processed or is being processed by them;
  2. The data subject shall have the right to seek the summary of their data that has been processed or is being processed by the Data Fiduciary;
  3. The Data Principal shall have the right to know with whom all the Data Fiduciary has shared their personal data, along with the categories of personal data that has been shared.

Under section 13– The Data Principal shall have the right to correction and erasure of their personal data that is with the Data Fiduciary.

Under section 14–  The Data Principal shall have the right to seek grievance redressal by registering a grievance with the Data Fiduciary. Moreover, if the Data Principal is not satisfied with the response, or does not receive any response from the Data Fiduciary, then in such scenarios, the Data Principal may register the complaint at the Data Protection Board.

Under section 15– The Data Principal shall have the right to nominate anyone, who shall exercise the rights of a Data Principal under the DPDP, 22 after the death/incapacity of the Data Principal.

Under section 16– The Data Principal is obliged under DPDP, 22 to perform certain duties such as-

  1. Shall ensure that they do not register any false/frivolous complaint with the Data Fiduciary and/or at the Data Protection Board;
  2. Shall not furnish false documents, impersonate another person, and/or suppress information while applying for any document, service, proof of identity, etc.
  3. While exercising their rights under section 13 pertaining to correction and erasure, Data Principal shall furnish verifiable and authentic information.  

DATA PROTECTION BOARD OF INDIA

The DPDP, 22 also proposes to establish a Board i.e., the Data Protection Board of India to pronounce decisions against complaints filed by Data Principals, to impose penalties for non-compliance not exceeding Rs. 500 crores, and perform all such functions as and when notified by the Central Government in due time.

PENALTIES

Here are the financial penalties listed out under schedule 1 of the DPDP, 22 for non-compliance with the provisions of the law.

  1. In an event, wherein the Data Fiduciary or Data Processor fails to take reasonable security measures in order to mitigate/prevent a data breach. For such incidents, a penalty of up to Rs. 250 crores shall be imposed.
  2. Where the Data Fiduciary fails to notify the Data Protection Board & the affected Data Principals about the breach. For such incidents, a penalty of up to Rs. 200 crores shall be imposed.
  3. In an event, wherein the Data Fiduciary fails to comply with the additional obligations pertaining to the processing of a child’s personal data (section 10). For such incidents, a penalty of Rs. 200 crores shall be imposed.
  4. Wherein, the Significant Data Fiduciary fails to comply with the additional obligations mentioned under section 11. In such scenarios, a penalty of up to Rs. 150 crores shall be imposed.
  5. In an event, wherein a Data Principal fails to comply with the duties mentioned under section 16. In such scenarios, a penalty of up to Rs. 10 thousand shall be imposed.
  6. Non-compliance with the provisions of the DPDP, 22 except for those listed above, shall lead to a penalty of up to Rs. 50 crore.

Privacy concerns abound in the official Beijing 2022 Winter Olympics app

March 23, 2023 — Leave a comment

Introduction

The 2022 Winter Olympics were held in Beijing, China from 4th Feb-20th Feb 2022. Even before the start of the Winter Olympics 2022, China was being criticised and accused of allegations pertaining to human rights violations and other related controversies globally. Around 180 human rights groups were of the opinion that all the leaders globally and the governments should boycott the Winter Olympics in Beijing as the Chinese government was held solely responsible for the genocide of the minority communities in China. The Canadian government along with the UK and the United States government were the ones who decided to diplomatically boycott the games; this meant that these countries would only send their athletes to be a part of the games, whereas the government delegates and officials won’t either attend the games or be a part of the event.

But was this the only issue raised by the officials?

The other issue that was largely concerning the majority and the same was being discussed everywhere from news channels to even the U.S Olympics and Paralympics committee was related to the ‘privacy’ of the athletes as well as the ones who were planning to attend the games in Beijing.

The catch to this privacy-related issue is that those who were preparing to attend the 2022 Winter Olympics had to compulsorily download a mobile application called “MY2022”. This app had multiple security flaws and resulted in privacy concerns that were very much applicable to both the domestic as well as international athletes along with the ones who were merely attending. 

What is MY2022?

MY2022 is a mobile application that was made a requirement for all the athletes and the attendees of the Winter Olympic Games. The app performs multiple functions right from real-time chat with your contacts along with that video and audio options are also available for the users; users have the option to even share files with each other, as well as the app notifies its users about the weather and news updates. Furthermore, the app is also used to submit health customs information of those who are visiting China from other nations. This includes submitting the user’s passport details, demographic information along with travel, medical history (if any), COVID-19 vaccination status, and lab test results including users’ daily health status.

China’s intention behind collecting this information as per their official statements was to prevent the transmission of COVID-19 and hence was a part of the COVID protocol that was being followed during the Winter Olympics.

It was prescribed that all the athletes and attendees should download the app 14 days prior to their visit to China, and were required to monitor and submit their health information in order to track their health status on a daily basis. Many countries have relied on similar apps in order to track the health status of their citizens and the foreign travelers, especially if we take India as an example here, the app named ‘Aarogya Setu’ was extensively used and is even used today in order to monitor the health status of the people in India.

As per the Chinese government’s guide on the Olympic games, it was discovered that the MY2022 app was created by the Beijing Organising Committee for the 2022 Winter Olympics. However, later through public records and the App Store’s information, it was revealed that the owner of the app is a state-owned company called the ‘Beijing Financial Holding Groups’. continue reading

California Privacy Rights Act & what it’s bringing to the table

March 23, 2023 — Leave a comment

Introduction

In 2019, during the Facebook F8 Developer Conference, Facebook (now Meta) CEO- Mark Zuckerberg said something which was never been said before by any big techs, he said: “the future is private.” Based on this statement we can understand it’s not just Facebook alone or any other big techs, who are working in order to come in line with privacy, as privacy is the only hope available for tech companies to survive in this competing market today. We have seen and witnessed the rise in privacy-related concerns raised by millions of people, organizations, activists, lawyers, institutions, and other governmental agencies. This has only been possible due to the recent changes in the market, earlier the concept of privacy and the laws relating to privacy weren’t common, but due to global awareness about data & privacy of the individuals, lawmakers around the world have tried to accommodate legislations on data protection & privacy, one such example is of the General Data Protection Regulation (GDPR). 

The GDPR has truly influenced many nations to formulate their own laws regulating the flow of personal data in and outside their economy. As rightly said, “data is the new oil of the digital economy.” Having a regulation along with a regulatory authority becomes an essential part to monitor and safeguard the rights of the individuals as well as flow of this new oil in this digital era. 

In light of the above, California is one such state in the United States that has been successful in formulating a law on data protection & privacy for the residents of California, it was called the CCPA or California Consumer Privacy Act. It came into effect on 1st January 2020. But what we all need to know about this Act is that in November 2020, the voters in California approved and voted for an amended version of the CCPA and very soon this Act will get replaced by its successor called the CPRA or California Privacy Rights Act. In this blog we will dive into the new legislation i.e., the CPRA  and what all it brings to the table.

What is CPRA?

The California Privacy Rights Act (CPRA) is an extension or a successor to the former law on data protection & privacy also known as the California Consumer Privacy Act (CCPA). The CPRA will be effective from 1st January, 2023. However, some of its provisions have already been in action since 1st January, 2022, such as the consumers’ data collected by businesses and organizations on or after 1st January, 2022, CPRA will apply to such entities. Hence, it is advised that organizations and businesses that fall under the ambit of this new legislation should comply with its requirements starting from 1st January, 2022.

If we compare CPRA to its earlier version- CCPA, then the current Act in some way is more friendly toward small-businesses. Additionally, the CPRA widens the scope of the following-

  1. Consumers under this law get more rights;
  2. Fines for violating the provisions pertaining to children’s privacy have tripled;
  3. Limitation in the use of “sensitive personal information” of the users;
  4. Prevents and restricts businesses and organizations from knowing the users’ geolocation;
  5. Restricts businesses and organizations from profiling the users;
  6. Establishes a new agency- California Privacy Protection Agency, in order to ensure rigorous enforcement of the law;

However, we will be discussing all the new changes brought into this law in the later part of this blog.

CPRA applies to which entities?

The present law- CPRA, applies to only for-profit businesses & organizations that are either located in the State of California or do business with the residents of California. The essential ingredient that needs to be satisfied here is that- even if your business is not located in the State of California but if you have users’ from California, and your business is involved in collecting their data, your business would fall under the ambit of CPRA. Further, any one of the following requirements needs to be fulfilled in order to make sure, that CPRA applies to your business/organization-

  1. The entity needs to have annual gross revenue of $25 million or more;
  2. The entity should be involved in selling, sharing, or buying of 100,000 or more users’ personal information who are residing in California per year;
  3. The entity earns 50% or more of its annual gross revenue by way of sharing or selling the personal information of its California users/customers.

The following entities will also fall under the ambit of the current legislation-

  1. Joint ventures & partnerships- When each business has at least 40% or more interest, in such scenarios, each business/entity who falls under this category will be considered as a separate entity in itself.
  2. Moreover, if any entity/business who wishes to comply with CPRA, may do so, even if such entity doesn’t fulfill the above requirements.
  3. Even commonly controlled entities fall under the ambit of this legislation. Controlled entity is either controlled or controls a covered entity; Shares common branding with such entity; or has access to the covered entity’s consumers’ personal information.

Consumer rights under CPRA

  1. Right to opt-out- Under this new legislation, consumers now have the right to opt-in or opt-out in cases of collection, selling and/or sharing (with the third parties) of their sensitive personal information. Businesses that are involved in selling/sharing personal data with third-parties are required to add a “Do not sell my personal information” link on their homepage of their website. Moreover, businesses will also be required to add a “Limit the use of my sensitive personal information” link to comply with the CPRA’s requirement pertaining to limitation of using consumers’ sensitive information.
  2. Right to correct & delete personal information- The CPRA gives the consumer the right to both correct as well as delete their inaccurate personal information. Entities that fall under the ambit of this law, need to disclose this right to the users/consumers and fix all such errors/mistakes with respect to their personal information after receiving such requests from their users.
  3. Right to access data- Under this new legislation, consumers have the right to access their data by the entities who have collected it, and the time period is not restricted  or limited to 12-months, rather it goes beyond 12-month. The only exception to this right is that if doing so is impossible or requires disproportionate effort by the entity, in such scenarios the CPPA will determine what exactly “disproportionate effort” means as it could vary from case to case basis.
  4. Right to opt-out from automated decision making & profiling- Under this law, consumers have the right to opt-out from being part of both automated decisions & getting profiled by businesses and organizations based on their personal or sensitive personal data. Such organizations and businesses who are into collection of these data must notify the public or their users before such collection and also about how automated decision making works along with how it affects such individuals autonomy.
  5. Private right of action- Under this law, consumers have the right to sue and seek damages from the businesses and/or organizations who have collected their personal data and due to their negligence, the consumers’/users’ data get compromised or breached. In such cases, even an individual has a private right of action against such defaulting business/organization. Especially in cases when such user’s or consumer’s data exposes the following information:
  1. Email & password along with the security question and answer due to which it grants the attacker to easily access the user’s/innocent party’s account.
  2. In cases when the business or the organization is negligent in maintaining proper security standards as it is their responsibility and obligation to ensure reasonable security of the personal data of the consumers.
  3. Minors’ rights- The CPRA also aims to protect the privacy of children, as it specifically mentions that businesses and organizations must seek and obtain explicit consent before collecting, sharing or selling their data, how their data will be used and for how long it will be retained.

Note: Businesses and organizations who willfully neglect this criteria/exception, shall be deemed to have had actual knowledge about the consumer’s age.

Obligations for businesses under CPRA

  1. Reasonable implementation of security measures- The businesses and organizations that fall under the ambit of CPRA, are obliged to maintain and implement reasonable security measures in order to protect the personal information of their customers/users. Further, the businesses and organizations are advised to perform annual cybersecurity checks and are required to send the results to the CPPA for the auditing purpose.
  2. Contractual obligations- Under the CPRA, new obligations have been introduced for businesses that are into sharing, selling and/or disclosing personal data of their users/customers to their contractors/third party service providers, etc. In such scenarios, the business and the contractor/service provider must have a written contract stating the following (but not limited to)-
  1. Stating that the information disclosed or sold by the business to the third-party/service provider is only for limited purposes;
  2. Ensuring that both the contracting parties comply with the CPRA requirements;
  3. The third-party/service provider is obliged to notify the business if they are unable/no longer meet the CPRA compliance obligations;
  4. Lastly, the business has the right to take reasonable measures and actions in case of unauthorized access/use of the personal information.

3. Limited Defenses- The present act imposes certain limitation on the defenses used by the businesses, such as- from now businesses won’t be able to reply on the defense of maintaining and implementing reasonable security practices and procedures after a data breach, as the same won’t be considered as a cure or defense for that breach.

4. Storage limitation & principle of data minimization- These two principles can be seen in the EU’s GDPR. The principle of storage limitation states that an entity or a business should not retain the personal data of its users’ no longer than its intended purpose, and once the purpose is met, the data should be discarded. On the other hand, the principle of data minimization states that a business should limit the collection of personal data and should only collect if its directly relevant and necessary to accomplish a required purpose.

California Privacy Protection Agency

One of the major differences between CCPA & the current legislation- CPRA, is it seeks to establish an independent agency known as the California Privacy Protection Agency (CPPA). This agency will initiate actions through the Administrative Law Court as compared to the earlier privacy legislation in California (CCPA), which gave the state court system the authority to enforce the privacy law. 

Whereas the Administrative Law Court would further provide an independent and neutral hearing, and these hearings would be less formal and more transparent.

The present change further shifts the responsibility to enforce the CPRA to the newly established agency i.e, the CPPA, whereas, for the earlier privacy legislation- CCPA, this responsibility was given to the Office of the Attorney General. The CPPA will also be responsible for educating and awaring the general public about their consumer privacy rights.

Penalties under CPRA 

There is a 3X (times) increase in the penalties as compared to the earlier privacy legislation in California. The entities covered under this legislation could be fined up to $7,500/- per intentional violation and even for violations pertaining to personal information of people under the age of 16. Whereas, for non-intentional violations, entities/businesses could still be fined up to $2,500/-. In the earlier legislation (CCPA), there was a 30-days cure period, wherein, the cure-period automatically starts once there is a charge or allegation against the business stating any kind of violation. However, this has been struck down and cannot be found in this new legislation. 

Moreover, under the CPRA, the agency (CPPA) will now decide regarding the cure period or how much time does the business have to correct such violations. 

Conclusion

From the above discussion, we can clearly draw out all the new features of this latest legislation on data protection & privacy for the State of California. The CPRA will be enforced in 2023, however, some of its provisions are in effect starting from 1st January, 2022. It becomes essential for every business and organization to check whether they fall under the ambit of this new legislation or not. Moreover, the legislation applies to all the personal data/information collected starting from 1st January 2022, making it essential for every business to start complying with all the requirements starting from 2022. 

Apart from checking the applicability and scope of this legislation, businesses are further required to update their privacy policies, review and update their contracts with their vendors and other service providers in compliance with the CPRA, and lastly, by updating their websites, and the method of processing in accordance with the upcoming legislation.

CERT-In Directions dated 28 April 2022

March 23, 2023 — Leave a comment

The Directions issued by CERT-In on April 28, 2022, for ensuring better cyber security measures in India as it focuses on the collection and storage of user’s sensitive information. As per the directions issued, VPNs in the country will have to keep customer names, validated physical and IP addresses, usage patterns, and other forms of personally identifiable information. Let’s discuss the directions in a detailed manner- 

Firstly, as per the directive, VPN companies are mandatorily required to collect and validate customer names, physical addresses, email addresses, and phone numbers along with that they are required to provide the reason each customer is using such service, the dates they use it, and their “ownership pattern.” They are also required to provide the IP address and email address used by a customer to register for the service, along with a registration timestamp. Lastly, they must provide all IP addresses issued to a customer and a list of IP addresses being used by its customer base generally. 

Secondly, the directives by CERT-In will have a wide impact on almost every stakeholder involved in the usage of internet as it is applicable to all service providers, intermediaries, data centers, body corporate and Government organizations. Furthermore, any non-compliance to these directions could lead to criminal imprisonment up to a year as a punishment. 

The CERT-In was set up as a body under the Ministry of Electronics and Information Technology (“MeitY”) to conquer the rising cyber security concerns. Moreover, some form of monitoring of information of users was necessary in order to combat against rising cyber harms. Since the latest directives give CERT-In the power to store and use such sensitive information of users; the directives also mandate that virtual asset service providers must have mandatory KYC and submit their financial transactions report to CERT-In.

It must be noted that the centre will use all the legal and security safeguards along with proper administrative channels to access such information mandated under the present directives. A detailed analysis of the said directions in the next post. Stay tuned!

A quick guide on the concept- Privacy by Design

January 21, 2023 — Leave a comment

Introduction

The concept of data privacy has been in papers way before the coming of the digital era, and so does the concept of Privacy by Design, which was introduced in the 90s by Ann Cavoukian, former Information and Privacy Commissioner for the Province of Ontario.

Privacy by Design (“PbD”) defines the nature of Privacy and how we must approach it. It means that at the beginning of an organization or a project’s existence, privacy must first be implanted, enabled and implemented into its very own foundation. Rather, than just looking at it from a compliance point of view and merely as a remedy against breaches and risks. Moreover, it should be adopted as a culture, and not as an add-on to your shopping cart list.

Let’s dive into how to implement PbD within an organization with its Seven foundational principles-

  1. Privacy measures should be “Proactive not Reactive”; “Preventive not Remedial”

Taking this viewpoint, it can make your team’s life easy and save your organization from huge penalties, here’s why- This principle discusses the very nature of privacy, and how it benefits and add value to an organization when it is proactively utilised. The reasoning behind the implementation of privacy should be to detect and minimize/eliminate potential threats, not wait for the potential threats to cause harm first, and then implement security measures. That’s not how privacy should work. An example of this could be- Conducting a Data Protection Impact Assessment before processing or Transfer Impact Assessment before cross-border transfers.

  • You must enable “Privacy as the Default setting”

This simply means that privacy must be implemented into the systems and processes as a default setting and by putting privacy at the forefront. Although, this looks the toughest to crack, however, it only minimizes the potential cyber risks. By enabling privacy as a default setting, your organization aims to achieve this by limiting the collection of data, not retaining the data after its purpose and ensuring that no users are required to act separately to protect their personal data. For example- having the personalised ads or precise location option turned off as a default setting.

  • “Privacy embedded into Design”

Privacy must be implemented into the skin of the products/services that you offer from its initial stage. It should be treated as an integral part of your business practice. Lastly, it shouldn’t be considered an add-on or a strategy taken as countering measures against risks. In simple terms, this principle states that an organization must thrive to provide privacy at all stages while offering the users with its products/services. For example, ensuring an end-to-end encrypted platform, giving users the choice of receiving targeted ads, etc.

  • Full Functionality – Positive-sum, Not Zero-sum

The fourth principle simply states that privacy by design is an approach which seeks to accommodate all legitimate interests, dismissing unnecessary trade-offs, and avoids all such false dichotomies such as privacy v security, etc, ensuring that by implementing privacy by design an organization could achieve a win-win scenario. For example, if an organization limits and minimizes data collection and data sharing, and destroys it according to its retention policy. This can ensure fewer security flaws, and enable users’ privacy to be at the forefront, without making any unnecessary trade-offs.

  • End-to-End Security – Full Lifecycle Protection

This principle simply states that data privacy & protection goes hand in hand, and shall be delivered during the entire lifecycle of the data. An organization must ensure all reasonable security measures are taken that are industry-recognized right from data collection to deletion. For example- During a cross-border transfer of personal data, an organization must conduct a transfer impact assessment in order to assess and analyse the potential risks, and only then move ahead with such transfers.

  • Visibility and Transparency – Keep It Open

This principle lays out that the privacy of the users means complete visibility and transparency of their data. To ensure this every organization must thrive to have easy-to-ready privacy and cookie policies. This could help users to understand exactly what happens with their data. Always remember, privacy is a trust-building initiative and has a direct impact on every organization.

  • Respect for User Privacy – Keep It User-centric

And, lastly, privacy only comes by putting consumers/users at the top. Organizations must keep in mind that at last they are processing their users’ data, and must ensure to keep it consumer-centric by granting them control and visibility over their data. Data privacy should come in line with respecting the users’ experience throughout. For example- a user must have the right to seek correction & erasure of his/her data from any platform.

What is DMARC and why it is important for businesses?

October 15, 2022 — Leave a comment

Introduction

Today, every business and organization relies and is dependent on two most important things- the Internet & Data. With the emergence of the Internet, and the evolution from Web 1 to Web 2 and now to Web 3, this transition was always accompanied by various challenges, wherein the most concerning issue not just affects businesses, corporations, and governmental agencies, but also individuals, are Cyber-Attacks. 

In this Digital era, trade and communication highly rely on the use of Electronic Mail services (E-mail). As per a recent report by Statista, over 333 billion emails are delivered and sent each day. Moreover, 90% of the cyber-attacks on businesses and organizations are achieved through Phishing, Spamming & Spoofing over E-mails.

E-mail security threats are real and could cost businesses and organizations hefty losses, if not treated. How? Well, since electronic communications are the preferred way to connect with potential clients and consumers. If businesses fail to focus on e-mail security, it would be easy for an attacker to impersonate your business and send malicious mail to your clients and consumers. 

The present study will help you understand the relevance of e-mail security and the threats pertaining to it, along with the solution that every business must ensure to take.

Case Study

The sole purpose of this case study is to bring awareness about the seriousness of cyber-attacks via e-mail on businesses and their clients in cases where e-mail security is not dealt with care. For this case study, we won’t be naming any company.

ABC Pvt Ltd, an e-commerce company based in India markets its products to its potential buyers via e-mail. The e-commerce company also relies on e-mails for sending daily discounts and fashion trends to its subscribers. 

However, the e-commerce company was later informed by multiple sources and complaints that cyber-attackers were sending phishing e-mails and impersonating the e-commerce company which led to multiple cybercrimes. It was also later observed that all the actual e-mails that were sent by the e-commerce company itself were never delivered to their subscribers, instead multiple ISPs blacklisted all the domains of the e-commerce company.

It is essential to note here that phishing e-mails/attacks like these could be convincing to your clients and it would be hard for your clients to spot the difference between the original company and the scammer, which would eventually make your client fall into such phishing scams. This would further cause huge damage to the company’s brand image, and trust among its users/customers and potential clients, and its domain reputation would get affected due to such cyber-attacks.

 Now, in such scenarios, where the company itself doesn’t know about such security breaches due to lack of visibility or low visibility, which makes it tough to investigate such cyber-attacks or phishing in general. 

What are the remedies available and how will a business resolve this security breach and protect itself from such potential security threats?

Solution

The answer to the above case study is by implementing DMARC. Let’s understand what DMARC means, right from the basics.

What is DMARC?

DMARC or Domain-based Messaging Authentication, Reporting, and Conformance is a protocol/system that helps in authenticating e-mails and further protects the business’s domain from e-mail security threats/breaches such as spoofing, phishing, etc.

Let’s try to understand how DMARC works, exactly.

The DMARC constitutes of two main techniques and is essentially built on those verification techniques, they are-

1.         SPF or Sender Policy Framework; and

2.         DKIM or Domain Keys Identified Mail

Let’s try to further simplify these verification techniques in order to understand and get an overview of DMARC.

·      SPF is an e-mail authentication standard and is used as an industry practice concerning e-mail security. It allows only the authorized Senders of the Domain to send e-mails and further blocks others who are listed as the authorized senders of the domain. 

·      Here is what happens, when you as a Business implement SPF-

a.     You are required to publish all the authorized IP addresses that may send e-mails from your domain.

b.    Now, what happens next is that when an entity receives your e-mail, the server does a crosscheck to see whether the IP address matches your published list.

c.     If it matches, then such communications land in the inbox. On the other hand, if it doesn’t match, such an e-mail gets rejected straightaway by the e-mail server. Hence, ensuring and preventing phishing and other cyber threats.

d.    However, unfortunately, hackers have come up with multiple different ways to fool and bypass SPF technology. The only way to make effective use of and rely on SPF technology is by implementing DMARC.

DMARC is simply incorporating SPF technology along with DKIM.

·      The DKIM technology helps in creating a digital signature, which simply put the onus on the e-mail sender over the message that is shared across. The digital signature further guarantees that the content of the message sent has not been altered or modified. 

·      This technology is based on cryptography, which in simple terms means it creates a pair of keys (Public & Private keys) that are then used to verify the authenticity of the e-mail.

·      With the Private key, the e-mail is signed and when the receiving server receives the e-mail, it then verifies the same with the Public key.

This is how DMARC functions, and further shares detailed reports pertaining to failed e-mail authentication with the domain owner.

How does DMARC protect your Domain Reputation?

If your business has implemented DMARC, it will prevent and protect the customers and clients from phishing, spoofing, and other related security threats. We need to understand, that these malicious e-mails not just impact your information management system or cause data breaches, rather your domain may get blacklisted by multiple ISPs, which would straightaway impact your domain reputation along with that it breaks the trust of your customers since their data is at stake.

How to draft quality agreement for a pharmaceutical company

April 3, 2022 — Leave a comment

First published on Ipleaders

Introduction

A contract in any industry or for any business is one of the most essential components, and carrying on a business or any kind of collaboration without a contract can be a nightmare for all parties involved. When parties enter into a contract, all their obligations and other clauses of the contract become binding upon each of the parties, and in case of a breach of any of the clauses, the one committing the breach becomes liable. So, contracts make the parties accountable to each other, hence, the quality of work gets better.

As we are living in this age of pandemic, there has been a rise in the consumption and production of drugs. From hoarding and black-marketing of medicines, the courts directing the concerned authorities to increase the production to the incredible growth in stock prices of pharmaceutical companies, within a single year we have seen and experienced so much. In this article, we will be focusing on quality agreements, as the name suggests, these agreements are extensively used for quality assurance of the drugs in the pharmaceutical industries. 

What is a quality agreement?

The quality agreement isn’t similar to any other agreement, rather these agreements have come under scrutiny from the concerned authorities worldwide, especially in India, as third party drug manufacturing hasn’t been defined under the Drugs and Cosmetics Rules, hence the liability of the third party involved in such agreements was a big question. 

Quality agreements are entered into by two or more people for the purpose of manufacturing, supply, and service while maintaining the quality of drugs and not compromising on them. These agreements are made primarily to comply with the quality of the drugs that are to be manufactured and also to comply with the regulations imposed by the government and/or to comply with the statutory obligations or as per the concerned authorities. 

One of the reasons why parties enter into such agreements is to expand their reach in the global market, to survive in the age of globalisation, businesses outsource contractors for manufacturing drugs at cost-efficient prices. India is one of the examples, where foreign pharmaceutical companies land up in the search of cheap labour and resources. Generally, the quality assurance department headed by the quality risk manager, along with the legal department of the pharma company and the contractor/vendor (manufacturer, laboratory, etc), collaborate together while drafting a quality agreement.

The scenario in India : before and after the 2020 amendment

In India before the 2020 amendment of the Drugs and Cosmetics Rules (“DCR”), drug marketers/distributors were not legally recognised which created huge confusion whether these quality agreements were legally enforceable or illegal in India or not, as the earlier rules didn’t have any provisions relating to the liability of the third party involved in such arrangements.

After the amendment to the DCR, contract manufacturing of drugs especially in India has become more transparent and there is more accountability of the parties involved in such agreements. From now on, both the drug manufacturer as well as the drug marketer or the distributor is now liable under the Indian laws. Hence, these agreements must be made with proper assistance and cooperation from all the parties in order to comply with all the required regulations as well as to provide the customers with the best possible product.

Why do parties enter into such agreements?

Quality agreements are stand-alone agreements, and they shouldn’t be read like an addendum or an attachment of the main agreement. This is because of the format and the language used while drafting these agreements. Regarding the question as to why parties enter into such agreements, while having the main agreement, then why do the parties need another/separate agreement, while these questions are normally asked by thousands of contract drafters. Now this question doesn’t have a single answer, however, the answers or the opinions are convincing. 

Now as we know that these agreements’ main purpose is to make sure that the quality of the product is as per the recognised standards and are not compromised for the sake of making profits, as these agreements deal with drugs, and drugs are essential goods/commodities in a person’s life. While manufacturing them, or testing them at laboratories, one has to keep in mind that they are doing a public service, although the only way to encourage these industries is by giving incentives, and in order to promote such development in these areas, it can only be done if these industries are not restricted by the authorities and are given reasonable freedom to make profits. The United States of America is the right example, as it doesn’t have any regulations regarding drug pricing, hence, the prices of drugs are way too high, as compared to the Indian drug’s prices, as India has a regulation regarding drug pricing.

Therefore, we can understand that the pharma companies go under huge pressure because of the government intervention or the laws laid down, the compliance issues and different approvals that these companies have to undergo in order to manufacture and as well as while releasing these drugs into the market. 

Things to keep in mind while drafting a quality agreement 

While drafting a quality agreement, the parties have to keep few things in mind:

1. Scope and purpose clause

This is the most important clause in the entire agreement, as it states the entire scope of work and purpose or the intent of the parties for which they have agreed to enter upon this agreement. This clause needs to be drafted properly keeping in mind the target and the final goal for which the parties have joined or collaborated. In case this clause hasn’t been drafted precisely or the parties haven’t drafted the clause as per their verbal agreement, then such situations can lead to major differences between the parties further creating disputes/conflicts between the involved parties. It is very important to customise the clause as per the mutual understanding of the parties so that future conflicts can be easily minimised.

2. Definitions and interpretation clause 

In this clause, the terms which have been used multiple times or the terms that convey more and have a wider ambit as per the agreement. Such terms can be mentioned under this clause so that the parties can easily interpret and understand such terms more comprehensively, therefore minimising confusion and conflicts regarding the interpretation of such terms and clauses.

3. Roles and responsibilities clause

In this clause, parties should mention their roles and responsibilities as per the agreement. It is very essential that parties elaborately mention each of their roles as well as their responsibilities to contribute and fulfill the purpose and scope of the work as per the mutual agreement between the parties. In case if this clause is taken for granted and vaguely drafted, it can result in differences between the parties, and ruin the relationship of the parties by creating conflict between them. To prevent such disputes relating to the role or responsibility of any of the party, this clause should be drafted keeping in mind all the formal discussions, facts stated by each of the party, promises/covenants by each of the party, purpose, and scope of the agreement

4. Resolution of disagreements clause

Now it can’t be denied that if parties are entering into an agreement, though the parties know that they have to cooperate with each other and fulfill all their roles, responsibilities and further comply with all the clauses and the laws, it obvious that during the term of the agreement, there will be a time that parties won’t agree with each other and such disagreements can be regarding the quality of the drugs, while auditing or inspecting, etc. During such disagreements, parties will have to resolve and come to a conclusion else the purpose of the agreement would get defeated and to prevent such events, it is mandatory to include a clause stating a mechanism or process or steps to resolve such disagreements and differences between the parties.

5. Assignment clause 

In this clause, parties have to mention that neither of the parties shall have the right to transfer or assign their roles, responsibilities, and promises/covenants to any other third party, as it would defeat the present agreement’s purpose. 

6. Term and termination clause

Under this clause, the parties shall mention the term of the agreement, and whether the same agreement can get revised or extended during or before the expiry of the term. Further parties can include or make a separate clause regarding the termination of the agreement, whether the agreement can or cannot be terminated unilaterally, and under which circumstances, the parties will have the power to terminate the agreement, etc.

Parties can include other clauses too as per their preference and can customise the entire agreement as per their mutual understanding. As there isn’t any proper formatting of a quality agreement, but certain clauses are a must, and the most important thing that the parties should always keep in mind, whether they are drafting a quality agreement or any other type of agreement, the parties should draft the agreement in such a way that there isn’t any space which would lead to communication barriers or restrict communication between the parties, as communication is the major factor that would lead to a success story or a major failure!

Conclusion

By now you might have an idea about what a quality agreement is, why parties refer to such agreements, and the important or the basic clauses that are to be included while drafting one. Now one more important thing that shouldn’t be ignored while researching or drafting or assisting someone in drafting a quality agreement is that these agreements should be drafted keeping mind the parties that are involved, other factors such as the scope of the work, the control under the agreement, as to who has the major control in the agreement, the ways or modes of communication, the importance of inspection and auditing with the respect to the materials used, basically the entire agreement shouldn’t be an online template or a previously used template, rather it should be a customised agreement catering the needs of the parties because resolving conflicts can get expensive at times.

All you need to know about a broadcasting agreement

March 31, 2022 — Leave a comment

First published on Ipleaders

Introduction 

Broadcasting is a process wherein an art, a performance, or an event that has either been recorded or which is currently being recorded gets telecasted to a large and wide audience worldwide through TV signals, radio signals or through the Internet.

We are living in a digital world, where everything has been digitalised, in fact one of the major reasons is Covid-19, the entire world has completely shifted to virtual zone either for work-related purposes or for entertainment purpose.

Have you ever wondered, when you watch a live event, let’s say a Live Cricket match or Live Wrestling, even though you haven’t purchased the tickets for the event, but you’re still able to watch the same event at your comfort in your pyjamas, and still the Sports and Entertainment Industry manages to earn in Millions and sometimes in Billions! But how? Is broadcasting that expensive and easy money-making for these Industries?

In this article, we will discuss everything related to a broadcasting contract in great detail.

What is a broadcasting agreement?

A broadcasting agreement is an agreement entered by two or more parties for the telecast/broadcast of the specified event as mentioned in the agreement to reach maximum or a wide audience through different modes of telecast either through live streaming, through TV signals, subscription-based broadcast, and/or via internet signals, or radio signals.

A broadcasting agreement is entered between the event’s host or the content creator or the producer of the event (“Creator”) with the broadcasting agency(s) (“Broadcaster”). The Broadcaster has to telecast the event on the platform(s) as mutually agreed by the Creator and the Broadcaster (“Parties”). The Creator of the event grants a license to the Broadcaster to either have the exclusive rights relating to the broadcasting of the event or non-exclusive rights, as per the said agreement. 

The term “broadcast” has been defined under Section 2(dd) of the Copyright Act, 1957 as, communication to the public either via wired or wireless medium and also includes re-broadcast.

In a broadcasting agreement, the Content Creator/the performer or the producer is the sole owner of the rights relating to the Intellectual Property, as it is the Creator’s original work, hence it is his property, moreover a broadcasting agreement doesn’t mean to transfer the ownership of the Intellectual Property from the Content Creator to the Broadcaster. It merely gives the Broadcaster the license to distribute the said content/performance/event with the public at large through its network.

Importance of such agreements

To understand the concept of a broadcasting agreement, we need to first clarify two basic prerequisites, i.e., Why are these agreements/contracts made? And secondly, why broadcasting is important for this day and age?

As we know, through agreements, parties are bound by rights and duties as mutually agreed by them. To fulfil any purpose, an agreement gives the said purpose legal importance and makes it enforceable at the court of law, if in case an event of default occurs. To secure and protect oneself from fraud, it is very important to enter into an agreement before accepting any commercial or non-commercial deal.

Coming to the second part, as to why broadcasting is an important service is because it is considered to be a public service, and public service is for the greater good, which is considered to be a moral obligation of both the State as well as of an individual, or associations/corporates, etc. Most importantly, through the broadcasting services huge amount of income is generated within the economy as through broadcasting an event, the scope of viewership and audience gets enlarged, which is good for both the sport, the players as well as for the nation as a whole as it gives recognition to both the nation as well as the players get recognized for their efforts. 

A huge amount of income is generated through broadcasting, lets take few examples, the FIFA World Cup, ICC World Cup, IPL, WWE, UFC, Davis Cup, The U.S Open, etc are some of the sports wherein the broadcasting rights are sold in Millions of Dollars. If we take examples of Movies or TV series instead of sports, in 2015 Netflix acquired the streaming rights of Friends for $100M.

Now if parties are willing to spend a hefty amount of money for acquiring streaming or broadcasting rights, it will be prudent enough to secure the said transaction by entering into an agreement. Hence, the broadcasting agreement is not only a vital part of the transaction but it binds the concerned parties together and makes them legally bound to all the obligations mentioned as per the agreement.

Important clauses and provisions of the agreement

In a broadcasting agreement, few operative clauses are mandatory to be drafted and they are-

  1. Purpose clause- A purpose clause is drafted to mention the purpose behind the said agreement. The parties have to rightfully mention the exact purpose of the agreement, and the purpose shall not be illegal, otherwise the entire agreement would become void.
  2. License clause- In this clause, it is to be mentioned that the Creator/Producer or the owner is granting a license to the broadcaster to stream/telecast either live or recorded session of the event on its network(s) and platform(s). Whether the agreement is an exclusive broadcasting agreement or not, shall also be mentioned here. Everything relating to the broadcasting license shall be mentioned in this clause. 
  3. Habendum clause- In this clause, all the rights relating to the property (Intellectual property, in this case) shall be mentioned, if in future there is any confusion relating to the title and ownership of the Intellectual property, then this clause can be a life-saver.
  4. Representations and Warranties- In this clause, both the parties shall state the fact and shall comply with the such represented fact individually, so that in case if anything happens contrary to the said and accepted facts, then the parties shall be responsible individually. 
  5. Rights and Obligations clause- In this clause, all the rights and obligations of both parties shall be mentioned clearly.
  6. Dispute resolution clause- This clause is very crucial, and needs to be drafted with clarity, as this clause will determine how the parties shall deal with the future disputes that might happen between them. Parties can mention, “Parties hereby mutually agree that all the disputes arising out of this agreement shall be referred to arbitration”, something like this can be mentioned, also if the parties are referring to arbitration as the mode, then the seat, venue, governing law, number of arbitrators, whether opted for ad-hoc or institutional arbitration, these shall be mentioned and covered in the clause.
  7. Tenure clause- In this clause, the tenure of the entire agreement shall be correctly mentioned, so that no future conflict or dispute arises concerning the tenure of the agreement.
  8. Force Majeure clause- In case of any unforeseeable circumstance, if any of the parties or party is unable to fulfil its contractual obligation, then such defaults or event of defaults shall not lead to termination of the agreement.
  9. Promotions and Sponsorships clause- In this clause, the parties shall mention, whether any sponsors for the event and the ways of promotions of the event, shall be mentioned clearly.
  10. Event of Default clause- In this clause, all the events that lead to default of the obligations as promised by the parties as per the agreement shall be mentioned. At last, such events shall directly lead to the termination of the agreement.
  11. Termination clause- In this clause, the modes and ways of termination of the agreement shall be mentioned, and anything apart from the modes or ways of termination mentioned in the agreement shall not be considered as termination. All the event of default shall directly result in termination of the agreement, hence the “Event of default clause” shall go hand in hand with this clause.
  12. Payment and Fees clause- In this clause, the modes of payment and the entire fees charged or to be paid by the broadcaster to the Producer shall be mentioned. 

Any law governing the agreement?

A broadcasting agreement shall be governed by multiple laws depending on the place of operation of the said agreement. The laws that shall be governing a broadcasting agreement are-

  1. Intellectual Property law
  2. Contract law
  3. Arbitration
  4. Antitrust/Competition law

Implications of not getting into an agreement

If the parties have no written agreement/contract stating that they have successfully entered into a broadcasting agreement, then the same shall not be enforceable as well as it might get very tough to prove whether there was any agreement between the parties or not. In such situations, where parties act negligently and where the consideration is of hefty sum, there is always a high chance of fraud. To secure oneself and the agreement, it is imperative to have a record of the same in a written format, with the signatures of both parties.

An important thing to be noted down here is that, when parties agree to enter into an agreement, the reason why the lawyers or the contract draftsmen drafts a dispute resolution clause, is because although initially at the time of the agreement, the parties mutually agree to each other’s terms but are unable anticipate any future dispute, and a dispute is something which can never be eliminated, the difference of opinions, etc can’t be foreseen, hence, it is important to have a dispute clause, to protect the rights of about the parties, but if there is no written agreement, the complainant shall have to prove at first that there was an agreement between the parties and when the court of law is satisfied with the fact that there was an agreement, then only the court shall consider the latter allegations.

Hence, having a written agreement is a win-win situation to protect the rights of the parties against any mishap or fraud.

Case laws relating to broadcasting agreements

  1.  Neo Sports Broadcast Pvt Ltd v. New Sanjay Cable Network & Ors-

In this matter, the plaintiff entered into a broadcasting agreement with BCCI. Since BCCI granted a license to the plaintiff to broadcast test cricket matches between India and other countries, the plaintiff found out that the defendants without any authorization or license from the owner or the plaintiff were transmitting and making available the channel to their clients and the Hon’ble Delhi High Court held that, unauthorized transmission of the TV channel to a selected clientele also leads to commercial use of broadcast and leads to making available the content to the public. Hence, violates the broadcasting rights or broadcast reproduction rights of the plaintiff.

  1.  Star Sports India Private Limited vs. Prasar Bharati and Ors-

The Hon’ble Supreme Court of India held in this judgement, that the broadcasting rights of all the sports event that are of national importance must be shared with Prasar Bharti, free of all commercial interest. So, that the entire country can witness the importance of the game, and get inspired by the same, the core element of this judgement was public interest, and where the court is satisfied with the fact, that an issue is directly proportional to the public interest, then the court shall always favour and pass an order or judgement protecting the public interest at large. Hence, in this case, even though the broadcaster entered into a broadcasting agreement, still his rights weren’t protected, since, it was a matter of the public at large.

Conclusion 

By now, you must have understood the entire concept of a broadcasting agreement, and why parties do enter into such agreements; its importance and the implications, if there is no such agreement between the concerned parties. The basic idea behind an agreement is to mention everything at once during the initial phase of negotiations or at the time of drafting. When parties enter into an agreement, then they mutually agree to all the terms and conditions of the said agreement. It is the best way to secure a deal and transaction, especially if the transaction involves huge amount of money.