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Rule Of Law in Globalising World

The concept of rule of law finds its origin in the rulings of Chief Justice Sir Edward Coke[1] wherein he emphasised the significance of the King being under the law. However, it was only later that A. V. Dicey in his book: Introduction to the study of the Law of the Constitution, 1885[2], tried developing the concept further. He identified three components of the rule of law[3]–

  1. The supremacy of law
  2. Equality before law
  • Constitution as a result of ordinary law of the land (signifying the relevance of judge-made laws in England)

These components ensured that the rule of law acted as a constraint on the arbitrary exercise of power by the sovereign over its subjects. Therefore, his primary focus was on the way in which the law was made, applied, and enforced (process-focused approach), rather than the actual content of the law (end-focussed approach). This creates a lot of confusion with respect to the applicability of the rule of law. Modern democracies are founded on this principle, however, there are contrasting convictions about what ‘law’ is/should be.

Previously, the concept of rule of law was limited in its application to the sovereign territory of the state as the interactions were primarily intranational. However, over a period of time, with the advent of technology and the movement of people, goods and services across borders, such interaction became international, leading to cross-border disputes. Through the process of globalization, “political, economic, and technological changes have had globalizing ramifications that penetrate state borders in ways that transformed the core rule of law values in the international legal order and have created a shift away from the previously prevailing state-centric system.”[4]

With respect to the applicability of rule of law at the international level, globalisation has made the world one single market where individual and state entities interact with other individuals and entities on a daily basis. Therefore, such interaction cannot be left unchecked with respect to the foundation principle of the legal system i.e. the rule of law. Hence, there is a need to transpose the principle of rule of law, internationally, in light of the globalized world. The significance of rule of law at the international level in the era of globalisation has been pointed out a number of times[5].

However, this transposition is easier said than done. There are some inherent issues in applying the principle globally. Firstly, with respect to whether such a principle, which was originally developed to be applicable to the national legal system, can be applied to the international legal system, in the absence of a central sovereign authority. Secondly, if the answer to the first issue is affirmative, does such international application require a reconceptualization of the original concept of rule of law in order to adapt it to the legal issues arising at the international level. Thirdly, should the international rule of law be limited in its application with respect to the relationship of different sovereign nation-states, or should it also be applied to the relationship of different individuals who are subjects of such nation-states?

The first roadblock towards the applicability of the principle of rule of law in the globalised world today encompasses the fact that there is no common sovereign power in the international arena. There is United Nations, however, the international law establishing such an institution, is a soft law in itself. Besides, it is left to the discretion of the nation-states to decide whether they wish to be a part of the U.N. Since there is no common sovereign, it is often contented by scholars that the rule of law cannot meaningfully exist in the international arena.[6] This further entails the difficulty in ascertaining what constitutes “law” in the international context since there is no “one” sovereign, and no “one” law regulating the conduct of individual nation-states.

Secondly, the Dicean concept of rule of law highlights a very narrow and process-focused approach. Such a framework will not satisfy the end objective of rule of law at the international level, with respect to acting as a constraint against the gross violation of the fundamental human rights of the individuals by the sovereign states. Therefore, the rule of law, when transposed to the international level, should not only be process-oriented but also end-oriented.

However, the nation-states, in light of the growing interaction in the globalized world and the common aim to attain international peace and order, have taken the necessary steps to address these roadblocks in the applicability of the principle internationally[7]. Globalization has a significant contribution to the development of both domestic and international legal frameworks governing and regulating transnational transactions and activities. This has led to the development of international institutions tasked with the implementation of international law to secure peace, order and respect for basic human rights in the international community.

In today’s world, however, the significance of the rule of law stretches far beyond its application to traditional inter-state relations. The second aspect of the rule of law at the international level is the increasing attention of the international community on the impact of the international rule of law on individuals, with respect to the need to protect the inalienable human rights of the individuals. The international humanitarian law and human rights law has ensured that the basic human rights of the “individuals” are brought at the centre stage[8], and that every nation-state is obligated to protect them. These developments have placed legal constraints on the conduct of sovereign states in the international community and prescribed international standards which ensure that substantive aspects of justice are also catered to, at the global level.

However, this individual-focused approach to rule of law at the international level is being implemented at the domestic level, by making the domestic legal system in line with the international standards. In light of this, it is important to keep a check on the discretion provided to the national legal system regarding the substantive rules as rule of law cannot be considered effective in its true essence if the laws are unjust and oppressive.

 

[1] LTJ, http://lawtimesjournal.in/rule-of-law/ (last visited Feb. 1, 2021).

[2] A V DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION (1885).

[3] Id.

[4] Ruti G. Teitel, Humanity’s Law: Rule of Law for the New Global Politics, 35 CORNELL INT’L L.J. 355, 357 (2002).

[5] The Rio +20 Conference on Sustainable Development Outcome Document, 2012; UN Millennium Development Goals etc.

[6] Charles Sampford, Reconceiving the Rule of Law for a Globalizing World, GLOBALISATION AND THE RULE OF LAW 9, 10 (2005).

[7] UDHR, ICCPR, ICESCR, Convention against Terrorism, Human Trafficking etc.

[8] United Nations Human Rights Committee, the International Criminal Tribunals (ICTY, ICTR), and the International Criminal Court (ICC) etc.

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Data Protection Regime in India

Privacy has been considered an international human right, as is enumerated under Article 12 of the Universal Declaration of Human Rights[1] and Article 17 of International Covenant on Civil and Political Rights.[2] India being a signatory to these international instruments, is under an obligation to protect privacy of the individuals. The current legal framework in India with respect to privacy and data protection is scattered in different legislations, rules and regulations, which individually deal with certain aspects of data protection.

The most important piece of legislation with respect to data protection is the Information Technology Act, 2000 (IT Act). Section 43A of the Act imposes civil liability on the body corporates if, while dealing with sensitive personal data or information, they are found to be negligent in implementing reasonable security practices and procedures and this leads to wrongful loss or gain to any person[3]. Furthermore, Section 72A imposes criminal liability on any person for disclosing personal information of an individual to a third party, without the consent of such individual[4]. These provisions are to be read with the IT (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011[5] [SPDI Rules], which defines sensitive personal data or information[6] and provides the procedures to be followed by a body corporate for collection[7], disclosure[8] and transfer[9] of information. The Rules further provides what constitutes reasonable security practices and procedures[10].

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Furthermore, the Information Technology (the Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013 (Cert-In Rules) impose an obligation on the service providers, intermediaries, data centers and corporate entities to mandatorily notify, in case of certain type of ‘Cyber Security Incidents’.

With respect to the protection of financial data, the Credit Information Companies (Regulation) Act, 2005 (CICRA) requires that the credit information of individuals in India has to be collected as per privacy norms enunciated in the CICRA regulation. Entities collecting the data and maintaining the same have also been made liable for any possible leak or alteration of this data.

With respect to the protection of health data, the Digital Information Security in Healthcare Act (DISHA), 2018 aims to protect the privacy of patients by protecting their medical data. It lays down the procedure for sharing of personal health records, through digital medium, between various healthcare service providers. Further, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2020 impose an obligation on the registered medical practitioner to comply with the relevant provisions of the IT Act, data protection and privacy laws[11].

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The Indian Contract Act, 1872 also become applicable if the privacy and confidentiality clauses enumerated in the agreement are breached by either party.

The Indian Penal Code, 1860 becomes applicable in the realm of data protection regime, as when there is a theft of data, prosecution can follow for the offenses of theft[12], misappropriation of property[13] or criminal breach of trust[14] under the Code.

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The most significant development in India has been the case of Justice K S Puttaswamy v Union of India[15], wherein the nine-judge bench of the Apex Court unanimously held that the right to privacy is an intrinsic part of personal liberty under Article 21 of the Indian Constitution. This highlighted the need for a data protection legislation dealing with all the direct and incidental aspects. The latest step towards this has been the Personal Data Protection Bill of 2019 which is currently being reviewed by the Joint Parliamentary Committee. Once this Bill becomes a law, India will have a single piece of legislation exclusively dedicated to privacy and data protection.

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[1] Universal Declaration of Human Rights, 1948, art. 12.

[2] International Covenant on Civil and Political Rights, 1966, art. 17.

[3] Information Technology Act, 2000, s. 43A

[4] Information Technology Act, 2000, s. 72A.

[5] Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011

[6] Id, rule 3.

[7] Supra note 66, rule 5.

[8] Supra note 66, rule 6.

[9] Supra note 66, rule 7.

[10] Supra note 66, rule 8.

[11] Applicability of the Regulations.

[12] Indian Penal Code, 1860 , s. 378 and s. 379.

[13] Indian Penal Code, 1860, s. 403.

[14] Indian Penal Code, 1860 , s. 405, s. 408 and s. 409.

[15] Justice K S Puttaswamy v. Union of India, (2017) 10 SCC 1.

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Ritu Kumar v. Biba

Ritika Private Ltd. vs Biba Apparels Pvt Ltd. 230 (2016) DLT 109

Delhi High Court

Judges: Justice Valmiki J. Mehta

Applicable law: Section 15 of the Copyright Act, 1957

Did you know: In order for the owner of a design to enjoy protection under the Designs Act, 1911, it is necessary that the design be registered under the act.

Effect of Legal Provisions: Section 15 of the Copyright Act states that if a design is registered under the Designs Act, 1911 the copyright in such design will cease. Copyright will also cease even if the design is not registered but is capable of registration and the design has been reproduced more than 50 times.

Where it all began:

  1. Ritika owns the famous brand ‘Ritu Kumar’ and Biba Apparels also owns a famous brand called ‘Biba’. Both produced apparel and accessories using industrial designs
  2. Ritika alleged that Biba had copied the designs of Ritu Kumar and had used them to produce apparel and as such, it had infringed the copyright of Ritika.
  3. Ritika’s designs are not registered under the designs act.

Legal issue: Once the copyrighted works of the plaintiff are applied for the making of dresses, and the production of dresses exceeds 50 in number, whether protection of copyright is lost?

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Ritika’s arguments: there is originality in the garment prints and sketches created by Ritika Pvt Ltd for the dresses/garments. It is pleaded that its ensembles are so designed that each component, such as sleeves, front and back panels etc are delineated and are coordinated with unique features. As such it is entitled to copyright protection.

Biba’s arguments: Because the designs of Ritika are industrial designs, the suit for infringement of copyright is barred because of Section 15 of the Copyright Act.

Judgment in the case:

  1. The court came to the conclusion that the suit was barred by Section 15(2) of the Copyright Act, 1957 as Ritika’s copyright in the said works had ceased to exist.
  2. Ritika’s case fell squarely under Section 15(2) of the Copyright Act, 1957 i.e. the copyright in Ritika’s designs ceased to exist as it had been reproduced more than 50 times by an industrial process.

Significance

The court elucidated the position as to the operation of subsection (2) of section 15 and re-affirmed the view that the bar would apply under certain conditions even if the design is not registered.

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Significance of Cyber Forensics in the modern digital world

The influence of Information and Communication Technologies (referred to as ‘ICTs’ hereafter) on society goes far beyond establishing basic information infrastructure. It has proven to be a foundation for development in the creation, availability and use of network-based services. It has played the most significant role in transforming the world we live in.

Although ICTs have helped in the creation of a truly global marketplace, characterized by a constant flow of information through networks and websites, however, just like everything, Internet technology to has its own pros and cons. On one hand, the ICT makes our life easier and on the other hand, it provides a platform for individuals to commit crimes in cyberspace, by taking advantage of the vulnerabilities and risks associated with the Internet. This led to the development of jurisprudence with respect to ‘cybercrime’ or crime committed in cyberspace.

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With the recognition of new age crimes as ‘cybercrimes’ and their peculiar nature, as opposed to traditional crimes, there was also a need to develop a security framework as well as a legal framework to exclusively combat such crimes. This led to the development of the regime of ‘cyber security and ‘cyber laws’ in various jurisdictions.

The basis of the cyber law regime was the same as that of traditional law- for the prosecution of crimes, whether traditional or new age, the court of law required credible evidence. However, it was no secret that the form of evidence required in traditional criminal cases differs from that in the case of cybercrimes, as the latter entails procurement of evidence from the ‘cyberspace’ itself, as opposed to a physical location. Since the traditional investigation and evidence procurement tools were not adequate in the context of cybercrimes which eventually led to a lack of prosecution of cybercriminals, therefore, a new disciple of forensics[1] known as ‘cyber forensics’ emerged.

Cyber forensics is defined as “the collection and analysis of data from computer systems, networks, communication streams and storage media in a manner that is admissible in a court of law”[2]. In general terms, it was the use of knowledge of computer science to gain access to credible evidence which will be considered admissible in the court of law while prosecuting an accused in a case concerning the commission of cybercrime.

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Initially, the use of cyber forensic tools was limited to the purpose of prosecution in court where cybercrimes were committed against private individuals. However, cybercrimes were not directed only at private individuals, various public, as well as private organizations which adopted ICTs in their day-to-day operations, were increasingly becoming victims of such crimes. Therefore, these organizations realized the potential of cyber forensics in identifying the offenders and securing their networks and started using the same within their organizations. Presently, cyber forensic tools are used equally by the government, private organizations and investigating authorities.

Cyber forensics per se involves the utilisation of knowledge of computers, computer systems, computer networks and the Internet i.e. it is primarily technical in nature. It is pertinent to note that the evidence collected with the use of cyber forensics should be admissible in a court of law, otherwise such evidence is futile. Therefore, there is also a requirement for setting legal standards as to how to collect, store and process evidence in cases of cybercrime. The legal framework of the country provides for these legal standards. For example, in India, the Indian Evidence Act, 1872[3] was amended in 2000 to insert various provisions relating to the admissibility of electronic evidence. The definition of the term ‘evidence’ was amended to include within its ambit, electronic records.[4] Section 65A[5] read with section 65B[6] provides for the admissibility of electronic records.

The COVID-19 pandemic had an unprecedented impact on the technological sector. Most individuals were completely dependent on the use of technology for their day-to-day activities, employment and education, among other things. This dependence provided a breeding ground for cybercriminals to exploit the vulnerable networks. Therefore, the significance of cyber forensic tools to combat such cybercrime activities was realised during the COVID-19 pandemic, more than ever.

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[1] Forensics is the use of scientific knowledge to collect information for supporting a fact.

[2] Anjani Singh Tomar, Cyber forensics in combating cybercrimes, 3 PARIPEX 69, (2014).

[3] The Indian Evidence Act, 1872.

[4] Id., § 3.

[5] Special provisions as to evidence relating to documents may be given.

[6] Admissibility of electronic records.

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Data Protection Regime in the European Union- General Data Protection Regulation (EU-GDPR)

Originally proposed by the European Commission in 2012, the EU GDPR[1] came into effect on 25th May 2018. It is intended to harmonize privacy and data protection laws across Europe. It further aims to provide a framework to ensure that the data subjects have control over their personal data. The provisions are GDPR are applicable[2]–

  1. When a controller or a processor is established in the EU
  2. When the personal data of EU data subjects is processed

The Regulation defines terms like ‘personal data’, ‘processing’, ‘data subject’, ‘controller’, ‘consent’, ‘processor’ and ‘personal data breach’.[3] It also enumerates the basic principles on which GDPR is based. These include “lawfulness, fairness and transparency; purpose limitation; data minimization; accuracy; storage limitation; integrity and confidentiality; and accountability”[4].

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One of the grounds mentioned under the Regulation which makes the processing of personal data by the controller or the processor lawful is when the data subject has consented to such processing[5]. The declaration seeking such consent should be made in an intelligible and easily accessible form, using clear and plain language[6]. Further, the data subject has the right to withdraw his consent at any time, and such withdrawal will not affect the lawfulness of the processing prior to the withdrawal.[7] When the data subject is a child below the age of 16 years, consent for the processing of personal data can only be given or authorized by the parents.[8] However, the Regulation gives the discretion to the individual member states of the EU to decide the minimum age for which parental consent will be required, however, such age cannot be lower than 13 years.[9]

The GDPR prohibits the processing of personal data relating to a specific category (sensitive personal data)[10]. However, such data can be processed in certain conditions like when the data subject gives explicit consent or when processing is necessary to protect the vital interests of the data subject or when processing is necessary for substantial public interest etc.[11]

Chapter 4 of GDPR enumerates the rights provided to the data subject with respect to the processing of their personal data. These include the right to access the data by the data subject (to know the purpose of processing, the categories of data being processed, recipients of such data, the period for which data will be stored, right to be informed of additional safeguards if data is transferred to a third country or an international organization etc.)[12], right to rectification (of inaccurate data concerning the data subject), right to erasure (when data is no longer necessary, when consent is withdrawn when data is unlawfully processed etc.), right to restriction of processing (for a particular time period) , right to data portability (receive the data in a machine-readable format and transmit the same to another controller) and right to object.

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The member states of the Union have the right to restrict the scope of rights and obligations[13] of the data subject and the controllers/processors, under the Regulation on the ground of national security, defence, public security, and criminal offences[14], general public interest etc.[15] by means of legislative measures.

The controller is obligated to take necessary technical and organizational measures which are designed to implement the principle of GDPR while processing the personal data of the subject (data protection by design).[16] Furthermore, the technical measures should be implemented to ensure that, by default, only the personal data which is required for specific purposes, is processed[17] (data protection by default).

In case of a data breach which is likely to risk the rights of natural persons, the controller should notify the supervisory authority within 72 hours of becoming aware of such breach. The controller should also inform the data subject about such data breaches in certain specific situations[18].

Further, if the processing of data involves new technology which might result in “high risk to the rights and freedoms of natural persons, the controller should carry out an impact assessment, before processing any data”[19].

The Regulation also mandates the appointment of a Data Protection Officer by the controller and processor in certain situations.[20] The Officer has the duty to inform and advise the employees of their obligations while processing the data of data subjects, to monitor the compliance of provisions of GDPR, to cooperate with supervisory authority etc.[21]

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In case of infringement of any right of the data subject or any obligation mentioned under GDPR, the data subject has the right to lodge a complaint with the supervisory authority of a particular member state[22]. For severe violations, the fine framework can be “up to 20 million euros, or in the case of an undertaking, up to 4 % of their total global turnover of the preceding fiscal year, whichever is higher”[23]. In case of less severe violations, the Regulation sets forth fines of “up to 10 million euros, or, in the case of an undertaking, up to 2% of its entire global turnover of the preceding fiscal year, whichever is higher”[24].

Therefore, the privacy and data protection regime in the European Union is very stringent. Although it has only been two years since the GDPR came into effect, however, the recent cases of imposition of huge sums of fines on Twitter[25] and Google[26] in Europe for violating the provisions of GDPR, highlight the seriousness of privacy and data protection in Europe.

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[1] General Data Protection Regulation, Regulation (EU) (2016/679).

[2] Id, art. .

[3] Supra note 1, art. 4.

[4] Supra note 1, art. 5.

[5] Supra note 1, art. 6(1)(a).

[6] Supra note 1, art. 7(2).

[7] Supra note 1, art. 7(3).

[8] Supra note 1, art. 8(1).

[9] Id.

[10] Supra note 1, art. 9(1).

[11] Supra note 1, art. 9(2).

[12] Supra note 1, art. 15.

[13] Supra note 1, under art. 12-22, art. 34 and art 5.

[14] Prevention, Investigation, Detection or Prosecution.

[15] Supra note 1, art. 23.

[16] Supra note 1, art. 25(1).

[17] Supra note 1, art. 25(2).

[18] Supra note 1, art. 34(3).

[19] Supra note 1, art. 35.

[20] Supra note 1, art. 37.

[21] Supra note 1, art. 39.

[22] Supra note 1, art. 77.

[23] Supra note 1, art. 83(5).

[24] Supra note 1, art. 83(4).

[25] BGR, https://www.bgr.in/news/twitter-fined-547000-dollars-for-not-disclosing-data-breach-927683/ (last visited Feb. 1, 2021).

[26] REUTERS, https://www.reuters.com/article/us-google-privacy-france/french-watchdog-fines-google-amazon-for-breaching-cookies-rules-idUSKBN28K0NA (last visited Feb. 1, 2021).

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The Himalaya Drug Company vs Sumit 2006

Delhi High Court

Judges: Justice Badar Durrez Ahmed

Applicable law: Copyright Act, 1957

Did you know: ‘Meta-Data’ is like a digital footprint, which allows a person to assess what tools and code have been used to develop a particular website

Where it all began:

  1. Drug Company is engaged in the manufacture and sale of Ayurvedic Medicinal preparations and was established in the trade in the year 1930. Realizing the potential of the Internet as a medium of information, the plaintiff registered its own domain name www.thehimalayadrugco.com’ on 10.6.1998 and developed a website under the said name.
  2. The most important feature of the website is the section titled “HIMALAYAS HERBS”. This section essentially consists of a database of a wide variety of medicinal herbs, arranged in alphabetical order.
  3. Such information is not only comprehensive but is also arranged in a manner that is visually appealing and easy to grasp. It was clear that Himalaya has expended considerable time, labour, skill and money in preparing this database of Ayurvedic Herbs that find mentioned on its website. Himalaya has claimed that the preparation of the database began sometime in June 1998 and took more than a year to complete.

Legal issue: Whether Sumit has infringed the copyright of Himalaya and if so what damages is Himalaya entitled to?

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Himalaya’s arguments: Himalaya noticed that Sumit was operating a website “http://ayurveda.virtualave.net” which reproduced Himalaya’s entire herbal data verbatim. The copying was to such an extent that even the grammatical or syntactical errors that appear on Himalaya’s website have been copied onto Sumit’s website. Moreover, the meta tag of the source code of Sumit’s website includes Himalaya’s trademark “Himalaya Drug Co.”

Sumit’s arguments: Sumit did not appear despite service and the case proceeded ex-parte

Judgment in the case:

  1. The Court held that Sumit had misappropriated the effort, skill and expense that had gone into the creation of Himalaya’s website. Therefore, Sumit had copied the entire herbal database of the plaintiff and had infringed the copyright of Himalaya.
  2. The plaintiff has also been able to demonstrate that the defendants have attempted to pass off its herbal database as and for that of the plaintiff’s and have also violated the “trade dress” rights that exist in respect of the plaintiff’s herbal database. The reason being that the plaintiff’s herbal database is unique and, therefore, any similar herbal database that appears on a different website is bound to create confusion by causing a consumer to associate the website with that of the plaintiff’s.
  3. Because Sumit did not appear in this case it was impossible to assess what kind of profits he had earned from the website and accordingly difficult to calculate damages. Thus the court calculated the costs involved in preparing and putting up the website. Those costs were 7.9 Lakhs and the court granted 7.9 Lakhs as compensatory damages and an additional 7.9 Lakhs as punitive/Exemplary damages.

Significance: The judgment is noteworthy because it has used a novel way of calculating damages and has awarded both compensatory as well as punitive damages.

 

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Role of Precedent in the Development of Law and Society

Before analysing the role of precedent in the development of law and society, it is important to understand what constitutes a precedent. According to Gray, it “covers everything said or done which furnished a rule for subsequent practice”[1]. According to Keeton, it is a “judicial decision to which authority has in some measure been attached”.[2] In general words, precedent means a set pattern guiding future conduct. Judicial precedent, on the other hand, means the judgment of a Court of law which can be used as an authority for deciding a similar set of facts, by the lower courts, or the same court itself.

Where a court pronounces its decision, it contains in itself a principle. This principle creates a judicial precedent. The opinion in which the judge formulates his reasons for the decision is not the precedent, although such opinion plays an indispensable role in ascertaining the precedent, since only from the opinion can one discover what facts are regarded by the court as material. The application of the judicial precedent is governed by the different principles in different legal systems. These principles are called the ‘Doctrine of Precedent’.

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The concept of precedent originated from the doctrine of stare decisis which means to “abide by the decisions”[3]. This doctrine aims to bring certainty and conformity to the decisions of the court and to the law.

The judicial precedents are binding on the lower courts and the same court, unless-

  1. The same has been overruled by the higher court
  2. The same has been reversed by the higher court
  • The facts of the case seem to be different

Precedent plays an instrumental role in the development of law and society. It ensures equality and fairness by means of treating similar cases in a similar manner. This brings the certainty of law and upholds the confidence of the citizens in the justice delivery system. With respect to the judiciary, it acts as a guideline to decide future cases based on similar facts. It ensures that the lower courts adhere to the interpretation of the law by the superior court in line with the changing needs of the society (the Vishaka guidelines in India[4]).

Furthermore, it provides a binding nature to the principles evolved seldom by the judiciary, while discharging their functions as an interpreter of law (the binding nature of the doctrine of basic structure with respect to amending the Constitution[5]). Lastly, it saves time and increases the convenience of the court, as a question of law, once decided, is settled and the judges and the lawyers need not spend time and labour on reestablishing the same principle.

With respect to India, the Indian Constitution empowers the Apex Court to interpret the law. Such interpretation is binding on the lower courts. The judgement of the Supreme Court is a decision, for the litigants, however, for the nation, it is a declaratory law[6]. However, a judgement acts as a precedent only when it decides a question of law and not otherwise[7].

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The expression ‘all courts’ used under Article 141 infers that the Supreme Court is not bound by its own decisions, except that a smaller Bench of the Apex Court is bound by the decisions of a larger Bench and that of a Co-equal Bench.[8]

With respect to the significance of precedent, the court in Union of India v. Raghubir Singh,[9] held that-

“The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.”[10]

 

 

[1] https://www.srdlawnotes.com/2015/11/precedent-meaning-definition.html

[2] Id.

[3]http://mja.gov.in/Site/Upload/GR/Title%20NO.149(As%20Per%20Workshop%20List%20title%20no149%20pdf).pdf (last visited Feb. 1, 2021).

[4] As provided in the case of Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[5] Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461.

[6] Ganga Sugar Co.. Ltd., Etc vs State Of U.P. & Others, AIR 1980 SC 286.

[7] State of Punjab v. Surinder Kumar, 1992 (1) SLR 335(SC).

[8] Indian Oil Corporation v. Municipal Corporation, AIR 1995 S.C. 1490.

[9] Union Of India & Anr v. Raghubir Singh, AIR 1989 SC 1933.

[10] Id.

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Right to be forgotten under General Data Protection Regulations

‘Right to be forgotten’ is the claim of an individual to have any data pertaining to him deleted, with no trace. The foundation of this right was laid by the European Court of Justice in its 2014 judgement in Google Spain SL v/s Agencia Española de Protección de Datos & Mario Costeja Gonzalez[1], wherein it held that European citizens have a right to request commercial search firms like Google to remove links to private information when asked, provided the information is no longer relevant[2]. This case set the precedent for the principle of the right to be forgotten under the General Data Protection Regulation (GDPR)[3] in the European Union.

Under the GDPR, the right to be forgotten has its basis in Recitals 65 and 66 as well as Article 15 and Article 17. Recital 65 iterates the right of a data subject to have his personal data erased when it is no longer necessary for the purpose for which it was collected. Therefore, the right to be forgotten is also known as the right to erasure in the EU[4].  On the other hand, Recital 66 talks about the obligation of the data controller who made the personal data public to take reasonable steps and technical measures to inform the data controllers processing such data about the request for erasure[5].

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Furthermore, Article 15 provides for the right to rectification or erasure of personal data or restriction of its processing[6]. This right to erasure is not absolute and can only be exercised in certain conditions. Article 17 obligates the data controller to fulfil the request of erasure without undue delay[7], if one of the following grounds is met[8]–

  1. The personal data is no longer necessary for the purpose for which it was collected or processed;
  2. Processing is based on consent and the data subject withdraws the same;
  • The data subject objects to the processing, and there is no overriding legitimate interest to continue the processing of data;
  1. Personal data has been processed unlawfully;
  2. Erasure is required to comply with a legal obligation; or
  3. Personal data has been collected to offer information society services to a child.

It is pertinent to note that the data controller can deny the exercise of the right to erasure if the processing of personal data is necessary for[9]–

  1. Exercising the right of freedom of expression and information;
  2. Complying with a legal obligation;
  • Public interest in the area of public health;
  1. Archiving purposes in the public interest, scientific research historical research or statistical purposes; or
  2. Establishment, exercise or defence of legal claims.

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Furthermore, the data controller can request a reasonable fee from the data subject for fulfilling his request of erasure[10].

[1] Google Spain SL v. Agencia Española de Protección de Datos & Mario Costeja Gonzalez, C‑131/12.

[2] EPIC.ORG, https://epic.org/privacy/right-to-be-forgotten/ (last visited Apr. 26, 2021).

[3] Regulation (EU) 2016/679.

[4] Id., recital 65.

[5] Supra note 46, recital 66.

[6] Supra note 46, art. 15(1)(e).

[7] Supra note 46, recital 59- A time period of one month.

[8] Supra note 46, art. 17(1).

[9] Supra note 46, art. 17(3).

[10] Supra note 46, art. 12(5)(a).

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Role of Social Media in a Democracy

Social Media has for long been considered the fourth pillar of democracy owing to its potential to not just report what is happening around the world but to build a public opinion about the ongoing issues. The term ‘democracy’ implies the participation of people. Media facilitates this participation.

The emergence of social media, however, has changed the way in which people now participate in democracy. Compared to traditional media, social media has a larger reach, is easily accessible, enables mass participation and provides instant updates. These factors have led to a situation where people rely more on social media than their traditional counterparts, to become aware of their surroundings and participate in discussions- political, economic, or otherwise, which in turn strengthens democracy. However, social media does not have only positive implications on democracy. On the flip side of the coin, it has been misused a number of times, often becoming the antithesis of democracy. The following headings discuss the role played by social media in a democratic setup, both positive and negative.

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Election Campaigning

Free and fair elections are undoubtedly one of the most important elements of modern democracy, and election campaigning forms very much a part of it. Political campaigning is not limited to physical rallies and posters. Social media has entered the realm of campaigning and is extensively being used by various political leaders as well as political parties to communicate their agendas to the general public. The ubiquitous nature of the Internet allows the leaders and political parties to simultaneously communicate with the voters across regions.

Social media is used for political campaigning through commercials, blogs, tweets etc. using social networking sites like WhatsApp, Facebook, Twitter, to announce a candidate running for the election, organize physical campaigning, recruit supporters and volunteers, seek funds, mobilize voters, share the party’s election manifesto and the candidate’s message to the general public, among other things.

The ex-President of the United States of America, Barack Obama, is famous for effectively harnessing the potential of social media as his campaign strategy in the 2008 Presidential Campaign. Since young voters rely more on social media compared to conventional media, social media was used to establish a contemporary voter-politician relationship between Barack Obama and the voters. Regular voting reminders were sent on Twitter, and Facebook was used as a platform to interact with people. As a result, President Obama maintained a significant lead in both Facebook likes and Twitter followers over his rival Governor Romney during his election campaign. The significant difference in the response on social media was translated into the historic win of Barack Obama as the first Africa-American President of the United States of America.[1]

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The field of social media campaigning has not been left unexplored by Indian politicians and political parties. Launched in 2012, the Aam Aadmi Party (AAP) ran its political agenda through social media and emerged victorious in Delhi Assembly polls. AAP used social media platforms like Twitter, Facebook and YouTube to interact with voters, share their election manifesto and raise funds, thus, keeping the election expense within the limit. Indian media reported that Arvind Kejriwal, the founder of AAP had admitted to adopting the strategies used by Barack Obama in 2008.[2]

Furthermore, in the 2019 general elections in India, there were around 15 million voters who were aged between 18 to 19 years. In light of these statistics and the interest of youngsters in social media platforms, various political parties adopted full-fledged social media campaigns to communicate with the large audience of voters, which in turn helped the parties to save their money, time and resources. Social media political campaigning has benefits other than saving the time and resources of the political party. Politicians are able to gauge their communication by viewing direct responses to their social media campaigning on Facebook, Twitter or Instagram.

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Taking into account the potential of social media campaigning in the 2019 elections, the Internet and Mobile Association of India (IAMAI), in consultation with the Election Commission of India (ECI) had developed a set of ‘Voluntary Code of Ethics’[3] to be adopted by various social media platforms to ensure free, fair and ethical use of social media in order to maintain the integrity of the electoral process. By virtue of this Code, the social media platforms were required to develop a notification mechanism for violations of section 126[4] of the Representation of Peoples Act, 1951.[5]

Although the potential of social media has been used to a great extent by various political parties for election campaigning, however, it is imperative to understand that social media platforms sometimes go overboard for political purposes. In the 2020 Presidential election in the United States, there were numerous reports of Facebook posting ads of Donald Trump, violating its own pre-election policies wherein it had announced that it would stop accepting new political ads after 27th October and would indefinitely ban all political ads after the polls close. However, on the first day of the moratorium, several ads appeared on the platform which was later taken down after being flagged.[6] Furthermore, social media political campaigning also has another drawback. After social media has been used for campaigning to the maximum extent possible, politicians use it as a one-way communication tool, rarely engaging in discussions with the citizens. This continues after they have been elected; they use social media to inform the people of their constituencies about different policies, rather than engaging in discussions with them.

Political Discussions

A healthy democratic setup gives utmost importance to public participation as the government is “of the people, for the people and by the people”[7]. Public participation can best be achieved by expressing one’s political views and discussing them with others. Efficient democratic deliberation assumes citizens as equal participants where opposing points of view are not only accepted but encouraged, and the main goal is to achieve a rationally motivated consensus.

From the point of view of political involvement, social media has taken the power of political messaging from the mass media model and firmly placed it into the peer-to-peer, public dialogue. It provides an environment where the ‘aam aadmi’ of a country is able to freely express his political opinions and expectations, with the use of his phone/device. Earlier, only those individuals could be a part of political discussions who read newspapers, watched news channels or discussed politics at the nukkad of the village. However, the tech-savvy nature of social media campaigning effectively makes the youth a part of political discussion as well. They take time to analyse and discuss political issues. Such discussions also influence administrative decision making.

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One of the examples of healthy political discussion is the 2015 #SOTU,[8] which enabled Twitter users to react to the topics covered by Barack Obama in the State of the Union address. There were around 2.6 million tweets in this context.

However, social media has the potential to be misused to manipulate individuals. It should always be kept in mind that “computer technologies should be used to serve the interests of the people and not corporate elites, to inform and enlighten individuals rather than to manipulate them, to articulate their own experiences and interests, and to promote democratic debate and diversity, allowing a full range of voices and ideas to become part of the cyberdemocracy of the future.”[9]

Cyber Governance

Social media also plays a vital role in cyber governance i.e. the use of information and communication technologies to support governance. Taking the example of India, various Ministries and the Ministers of the respective Ministries have their official social media handles which they use to perform their functions. These social media handles, on one hand, help the citizen to easily let the concerned Minister/Ministry know about the grievances faced by him, and on the other hand, help the concerned Minister/Ministry to respond and resolve the grievance raised.

The peculiar feature of cyber governance is the element of time and resources used to raise concerns. Earlier, citizens had to write formal letters to the concerned Minister/Ministry and wait for days for a response. This traditional system becomes futile if the situation requires urgent intervention. Therefore, social media has become a boon for cyber governance.

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The micro-blogging site Twitter was extensively used by late Sushma Swaraj, ex-Minister of External Affairs, to resolve the issues faced by Indian citizens trapped abroad. She rescued 168 Indians trapped in Iraq by acting on a video that was tweeted to her, and helped a number of other individuals, Indians as well as foreigners, to return to their homeland.[10]

Facilitator of political change in Arab nations

Social media platforms have also been used to accelerate revolutions in many Arab countries.

During 2010-11, a number of campaigns of civil resistance and street demonstrations took place in Tunisia. These efforts led to the ousting of President Zine El Abidine Ben Ali. During this process, social media played a positive role by spreading awareness among people, helping people to organize themselves using Facebook and clearing the clouds of misinformation by sharing photos and videos.[11]

Social media also played a key role in ending the 30 years long misrule by President Hosni Mubarak of the National Democratic Party in Egypt. It all started with a photograph being posted on Facebook. The photograph depicted a young man named Khaled Mohamed Saeed who was brutally beaten to death by the Egyptian police. This prompted an agitated Ghomin to start a Facebook page named ‘Saeed’ to highlight the scenario in Egypt. The number of followers of this Facebook page increased from 300 to 25,000 in just three months. The online expression of distress of the regime of President Mubarak spread to the streets of Egypt wherein the historic Tahrir Square in Cairo was filled with protestors shouting ‘We are all Khaled Saeed’. As a result, President Mubarak was forced to resign and dissolve his party.[12]

2.6. As a tool of manipulation  

Social media has also been used to manipulate the political choices of voters. This has a detrimental effect on the democratic setup of a country, where manipulation does not find a place.

The 2016 United States Presidential election was at the central stage of the allegations of the use of social media to manipulate elections. Facebook admitted that Russian Groups Company bought $100,000 worth of ads with the purpose of spreading disinformation and propaganda.[13] Furthermore, Cambridge Analytica, a political consulting firm, found itself in deep trouble over the United States 2016 Presential Elections involving Presidential candidate Donald Trump. It was found that it used deceptive means to gain access to data of about 87 million Facebook users, without their consent or knowledge. It was alleged that the firm got hold of such data through researcher Aleksandr Kogan, a Russian American who worked at the University of Cambridge. He built a Facebook app, which was actually a personality quiz. Around 2,70,000 people were paid to take this quiz, under the shadow of research. However, the catch was that the quiz was designed to access the Facebook data of the people taking the quiz, as well as the data of the people who they are friends with. The data included personal information on where users lived and what pages they liked, which in turn helped Cambridge Analytica to build psychological profiles of the quiz takers that analysed characteristics and personality traits. This kind of information was later used to tailor political messaging for Donald Trump’s presidential campaign.[14]

The attempts of manipulation directly go against individual autonomy as well as privacy enjoyed by the individuals.

As a Tool of Repression

Social media has been used to propagate one’s ideas and opinions. However, this platform has also been used by different organizations to propagate communal, racist and sociological tensions. Taking into account the possibility of exploitation of social media by such organizations, the Information Technology Act, 2000 contains a provision[15] which allows the Central Government to block public access to information on social media, on certain grounds namely in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above. These grounds are identical to the grounds mentioned under Article 19(2), based on which freedom of speech and expression can be curtailed by the government.

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Since the power to block public access to information on the Internet and social media sites violate the freedom of speech and expression enjoyed by the citizens of India, such power should be used cautiously by the government. However, in recent times, the Central Government has overused this power to suppress genuine political discussion on social media. Some examples include the government’s order to Twitter to block certain tweets and accounts pertaining to farmer’s protests, anti-CAA protests as well as those criticizing the handling of the COVID-19 pandemic by the government[16]. These blocking orders highlight the misuse of power by the Government to curb political criticism, which is detrimental for the largest democracy in the world.

Conclusion 

The advent of social media has taken democracy a step further by firstly, facilitating public discussions on important issues, whether political, religious, social or economic, secondly, providing a greater reach to election campaigning with minimal time and resources, thirdly, ensuring that the grievances of individuals reach the concerned authorities in time, and lastly, facilitating and accelerating political revolutions in countries. However, the use of social media in democracy has a flip side as well, which is highlighted by its use in manipulating the opinions of individuals and suppressing the voices of people raising genuine concerns on the social media platforms.

Therefore, though social media has vast potential to uphold and propagate democratic principles, however, it should only be used in a bona fide manner to further lawful political interests. Furthermore, social media, in absence of a privacy and data protection regime in a country, is highly susceptible to exploitation by organizations who manipulate the psychology of individuals by using the data of social media users, without their consent, or even knowledge.

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[1] Jennifer Aaker & Victoria Chang, Obama and the Power of Social Media and Technology, STANFORD BUSINESS (Feb. 28, 2021, 9:20 PM), https://www.gsb.stanford.edu/faculty-research/case-studies/obama-power-social-media-technology.

[2] Sevathi Ninan, Learning media strategy from AAP, LIVE MINT (Apr. 28, 2021, 9:30 PM), https://www.livemint.com/Opinion/HwHIPVrpDJC2Ax0TcTv03N/Learning-media-strategy-from-AAP.html.

[3]PIB,https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1586297#:~:text=Internet%20%26%20Mobile%20Association%20of%20India,bye%20elections%20being%20held%20simultaneously (last visited Apr. 26, 2021).

[4] Prohibition of public meetings during period of forty-eight hours ending with hour fixed for conclusion of poll.

[5] Jinala Sanghvi, Role of social media in Indian politics, LEGAL DESIRE (Apr. 28, 2021, 9:36 PM),  https://legaldesire.com/role-of-social-media-in-indian-politics/.

[6] Abhishek Singh, Democracy in times of social media, THE INDIAN EXPRESS (Apr. 25, 2021, 3:43 PM), https://indianexpress.com/article/opinion/democracy-in-times-of-social-media-6910382/

[7] Richard A. Epstein, Direct Democracy: Government of the people, by the people, and for the people, 34 HARVARD LAW JOURNAL AND PUBLIC POLICY 819, (2011), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2260&context=journal_articles.

[8] TWITTER, http://twitter.github.io/interactive/sotu2015/#p1, (last visited Apr. 26, 2021).

[9] Fenton & Barassi, Alternative media and social networking sites: The politics of individuation and political participation, 14(3) THE COMMUNICATION REVIEW 179-196, (2011).

[10] Ten times when Sushma Swaraj won the internet with her Twitter outreach as Foreign Minister, LIVE MINT (Apr. 29, 2021, 2:20 PM), https://www.livemint.com/news/india/ten-times-when-sushma-swaraj-won-the-internet-with-her-twitter-outreach-as-eam-1565121014539.html.

[11] How Social Media Accelerated Tunisia’s Revolution: An Inside View, HUFFPOST (Apr. 28, 2021, 2:10 PM), https://www.huffpost.com/entry/how-social-media-accelera_b_821497.

[12] Serajul I. Bhuiyan, Social media and its effectiveness in the political reform movement in Egypt, 1(1) MIDDLE EAST MEDIA EDUCATOR 14, (2011), https://ro.uow.edu.au/cgi/viewcontent.cgi?article=1002&context=meme.

[13] Scott Shane & Vindu Goel, Fake Russian Facebook accounts bought $100,000 in Political ads’ THE NY TIMES (Apr. 27, 2021, 9:30 PM), https://www.nytimes.com/2017/09/06/technology/facebook-russian-political-ads.html.

[14] Nicolas Confessore, Cambridge Analytica and Facebook: The scandal and the fallout so far, THE NY TIMES (Apr. 27, 2021, 9:36 PM), https://www.nytimes.com/2018/04/04/us/politics/cambridge-analytica-scandal-fallout.html.

[15] The Information Technology Act, 2000, s. 69A.

[16] Pranav dixit, Twitter is blocking tweets that criticize how the Indian government has handled the pandemic, BUZZFEED NEWS (May 5, 2021, 11:13 AM), https://www.buzzfeednews.com/article/pranavdixit/twitter-blocking-tweets-india.

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The interplay between cyber forensics and threat to cyber security in digital spaces like Clouds

More and more businesses organizations are becoming dependent on technology, and most of the data and information is being stored online. The development of storage technologies and computing resources, which are reasonably priced, provide more storage on demand, and are ubiquitously located, became inevitable. Cloud computing is the product of such technological development. In simple terms, cloud computing services provide resources (like a computer, storage, network, etc.) to organizations on a lease and on-demand basis. It helps various organizations to increase affordability and availability. Owing to the potential cloud computing services hold, various enterprises- large, medium and small, as well as individuals, have stepped up and made use of these services to the maximum extent possible. [1] However, increased reliance on the Internet also has a dark side, i.e. cyber security concerns.

Cloud computing services are peculiar in the following ways-

  1. It provides on-demand self-service, i.e. users can avail and manage the resources automatically;
  2. It provides ubiquitous network access, which helps in delivering the resources to heterogeneous users located in different parts of the world;
  3. It provides the option to scale up and down the resources based on the user’s needs. This feature had proved to be very helpful in times of COVID-19 when on the one hand, few users scaled up the resources owing to the increased dependence on technology and work from home measures, and on the other hand, few others (primarily small entities) scaled down the resources because of lack of financial capability to afford the same;
  4. It provides a pay-as-you-go service, i.e. the users spend based on consumption. 

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There is no doubt that cloud computing will enable further technological changes in the future. However, increased reliance on the Internet also has a dark side, i.e. cyber security concerns. Cloud computing has various issues, like privacy and security concerns. Since most of the data is stored in the cloud, any breach into the network implies firstly, breach of cyber security measures and secondly, jeopardizing the privacy of the individuals whose data is stored. Data breaches resulting from cloud misconfiguration led to a loss of nearly $3.18 trillion to businesses in 2019. [2] Furthermore, increased reliance on technology and cloud services during the COVID-19 pandemic also increased reliance on technology and cloud services has privacy and security implications attached to it. 

Cloud computing services are also often victims of malware infections. Distributed Denial of Service (DDoS) attack is the most common threat wherein a large volume of traffic is sent to a web-based application, leading to the crashing of servers. Botnets are also emerging as one of the most severe threats to cloud security as they provide a distributed platform for major illegal activities in the cloud.

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Insecure Application user interfaces (APIs) also pose a cybersecurity challenge. APIs are the primary tools that enable interaction with cloud storage systems. Generally, they are used by the staff of an entity that uses cloud services and the staff of the cloud service provider. It is pertinent to note that many APIs are still vulnerable, which gives the cloud service provider an undue level of access to the data. For example, in March 2021, we found that Facebook stored the passwords of its users in plain text instead of encrypted text, which could be read by any staff within the organization. [3]

Cyber forensic tools can be used to address the challenge of cyber security posed by the use of cloud computing services. Cyber forensics help identify the offender, procure the required evidence and prosecute him. However, the use of cyber forensics in cloud computing services per se poses several challenges[4] owing to the nature of these services. 

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Firstly, traditional cyber forensics methodology requires turning off the device and making an image of the hard drives. However, this methodology is not a viable option in the present time as entities are entirely dependent on cloud computing services, which act as their servers. Since cloud computing is not something that can be turned off by switching off the device, the traditional cyber forensics methodology becomes futile in the case of cloud computing. 

Secondly, cyber forensics uses the provenance technique to trace life changes and data transformation. However, such technology becomes futile in cloud computing, where the infrastructure is very complex to trace the originator of the data, the person who modified it and when it was modified. 

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Thirdly, since the ‘cloud’ in ‘cloud computing’ signifies cyberspace, it is believed that the data in the cloud is stored in cyberspace. However, the providers of cloud computing services locate their services in various physical locations. Therefore, to procure electronic evidence, it becomes challenging to access such data due to its geographic distribution and the subsequent necessity of complying with the legal requirement of such jurisdictions. 

Fourthly, specific file systems used in the cloud could be redesigned, customized or specifically created to cater to the users’ needs. Traditional cyber forensics methodologies fail to retrieve data from such files as their structure is unknown to anyone other than the cloud computing providers. 

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Lastly, since cloud computing services hold an enormous amount of data, it becomes difficult to retrieve a particular data without carrying out a mass data analysis using data mining technology. Such technology is not a part of the traditional cyber forensics methodologies. 

Therefore, the architecture and model of cloud computing makes it more complex to retrieve evidence using traditional cyber forensic tools. In such a situation, the development of newer devices to cater to the specific challenges posed by cloud computing becomes a necessity. 

  [1] Julian Jang, Surya Nepal & Y Jay Guo, Cybersecurity threats in cloud computing, 1(1) Australian Journal of Telecommunications and the Digital Economy 4.2., (2013). 

[2] Hashedout, https://www.thesslstore.com/blog/cloud-security-5-serious-emerging-cloud-computing-threats-to-avoid/ (last visited May 8, 2021). 

[3] the Tech Republic, https://www.techrepublic.com/article/facebook-data-privacy-scandal-a-cheat-sheet/ (last visited May 8, 2021).

[4] Pedro Ramos Brandao, Computer forensics in Cloud Computing Systems, 1(1) BirEx 71, (2019).