Category: 101s

Smart Derivative Contract: The Dark Horse of the Securities Market?

Posted on by Tech Law Forum NALSAR

This post has been authored by Arnav Maru, currently in his 4th year at Maharashtra National Law University (MNLU), Mumbai.

In a previous post, the concept of smart contracts as used in the legal field was explained comprehensively. Smart contracts are pieces of software that are formed when certain operational terms of a contract are written in the form of electronically executable codes. They were originally envisaged by Nick Szabo and theorized in a paper titled ‘Smart Contracts: Building Blocks for Digital Markets’. He used a rudimentary example of a vending machine to explain the concept. A consumer inserts cash into the machine and enters his preference. The machine then automates the execution of the contract and the goods are delivered to the consumer. The introduction of Blockchain technology has added another dimension to this concept and has exponentially increased its application. Self-executing contracts, based on the Blockchain are a reality now, and have found applications in a myriad of fields. An increasing popularity of the Blockhain and its uses has necessitated an overview of the progress made on this front, both, in terms of legal developments as well as feasibility of actual use.

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Indian Government’s Stance on Cryptocurrencies: An Analysis

Posted on by Tech Law Forum @ NALSAR

This post on the recent recommended ban on cryptocurrency has been authored by Shivani Malik, a final year law student at the Vivekananda Institute of Professional Studies.

Current Scenario

The Ministry of Economic Affairs in its recent press release dated July 22, 2019, prepared a report on the Committee on Virtual Currencies, which proposed a ban on the so-called “private cryptocurrencies”.

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‘Search Bias’ Under Indian Competition Law

Posted on by Tech Law Forum @ NALSAR

The following post has been authored by Vishakha Singh Deshwal, an LLM candidate at the West Bengal National University of Juridical Studies (WBNUJS), Kolkata. Here she analyses an emerging issue at the intersection of technology and competition law.

 

Every enterprise wants its Uniform Resource Locator (URL) to appear among the top links on search engines because these links get the most clicks. Research reveals that the 10 highest-ranking generic search results on the first page together generally received approximately 95% of all clicks on generic search results.[1] While some enterprises pay huge advertisement costs to ensure that their links appear at the top (paid links), others resort to Search Engine Optimization (“SEO”) from a service like the SEO services in Provo
to acquire top spots among unpaid links. SEO may include regularly uploading quality content to the website, creating a user-friendly browsing experience, ensuring that the website is compatible with computers and hand-held devices, engaging in social media marketing, etc.

As a large part of the market has shifted to online platforms (e-commerce platforms), it becomes important to understand the interface between the working of Search Engines and Competition Law. This post seeks to explain the concept of “abuse of dominance” in the context of search engines. First things first, let us look at Google Search Shopping case to understand the relevance of Search Neutrality.

Until 2010, Google, which is the most used search engine, misused its dominant position to place certain links above others. In 2010, European Union’s Commissioner for Competition began investigating Google’s conduct and held it liable for abuse of dominance. In 2017, the biggest fine ever imposed by an antitrust regulator was slapped on Google (Google Search Shopping Decision). After this, Google corrected the bias advertised and sponsored links were distinctly marked and search order was based on relevance, popularity, design and so on.

Search Neutrality

The principle of Search Neutrality requires that search engines should have no editorial policies other than that their results be comprehensive, impartial and based solely on “relevance”. For instance, Google Search uses certain algorithms to rank web pages based on their relevance. For e.g., PageRank that works by counting the number and quality of links to a page to determine a rough estimate of how important the website is. Moreover, several updates (like Panda) are also used to improve the user experience by identifying and demoting low-quality sites that do not provide useful original content or otherwise add much value.

Search Bias

Any manipulation of the organic/natural order of the links in search results amounts to a search bias. Such bias is inbuilt in the very business model of the search engines. As per the founders of Google: “ . . . we expect that advertising funded search engines will be inherently biased towards the advertisers and away from the needs of the consumers”.[2] So, the pertinent question is – what is the basis of such bias?

Relevance as the basis of Bias

In the domain of search engines, neutrality does not mean equal treatment regardless of the content. As mentioned earlier, search engines try to push up more relevant and quality links for a better user experience. Therefore, some amount of bias is inherent. Relevance is used as the basis of refining search results; it is defined in the search engine, so that the results are subject to the user’s preferences and the user is satisfied.

For example, a search for “Flights from Delhi to Mumbai”, would show several links. Some would be advertisements and sponsored links, while others would be unpaid links of travel gateways like MakeMyTrip, Goibibo, etc. Additionally, some other links for travel blogs, news items, maps, etc. would show up . Here, the search engine uses various algorithms to ensure that the most relevant links appear at the top. However, as relevance is subjective, bias based on relevance is contentious. At times, search engines tweak the algorithm to place their own or associated links higher up in the order to limit or eliminate competition.

Search Bias and Abuse of Dominant Position under Competition Act, 2002

Search Bias may become anti-competitive when it violates Section 4 of Competition Act, 2002. Section 4(1) prohibits abuse of dominant position. The explanation to Section 4(2)(b) defines “dominant position” as a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to- (i) operate independently of competitive forces prevailing in the relevant market; or (ii) affect its competitors or consumers or the relevant market in its favor.

Further, clauses (c) and (e) of Section 4(2) prohibit practices resulting in denial of market access and use of dominant position in one relevant market to enter into or protect other relevant market. In case of search engines, the peculiar feature of the sector is that there are a few enterprises that enjoy a dominant position in relevant markets (e.g. Google, Amazon, etc.) and such position may be abused.

To understand the interface of these provisions with search bias, let’s take a look at the Competition Commission of India’s (“CCI”) ruling on Google (2018).

In 2012, two cases were filed against Google alleging contravention of Section 4 of the Act. It was alleged that while conducting the core business of search and advertising, Google had been manipulating the search results and favoring its own services and partners, such as Google Video, YouTube, Google Maps, etc. Pages in the search results did not appear solely according to their relevance, popularity, etc. It was further averred that Google is widely recognized as enjoying a dominant status in the search advertisement market because of its market share, size, resources, reputation etc. Therefore, its search bias amounts to abuse of its dominant position.

Decision

The CCI confirmed that Google is a dominant enterprise with respect to the relevant markets of Online General Web Search Services and Online Search Advertising in India based on factors such as size and resources, economic power and commercial advantages, entry barriers, etc.

The CCI held that Google violated Section 4 by extending and preserving its dominance through:

  • Wrong and unfair display of the search results prior to 2010 in pre-determined/fixed positions instead of ranking them in order of relevance.
  • Embedding only its specialized services in ‘more results’ link. Further, by abusing its dominance, Google did not merely limit market access of its competitors, but it also accessed large volumes of user data and thereby, indirectly deteriorated the ability of the competitors to further innovate on their products and sustain and survive in the market.

Approach

The decision did not deal with the question of effect-based versus form-based approaches to determine abuse of dominance. The dissent order indirectly referred to the latter approach as it emphasized the need for greater economic evidence and its implications for competition and consumers to consider an alleged conduct as abusive. The form-based approach is the traditional approach to look at the abuse of dominance where perfect competition is the goal. Whereas, the effect-based approach aims at weighing the pro-competitive and anti-competitive effects of a firm’s action keeping in mind special considerations for an industry, rather than simply protecting competition. It recognizes that firms continuously look for new opportunities to maximize their profits through innovation. For this, a firm may adopt strategies that enhance its market power or eliminate a competitor, however, its actions may result in more efficient processes and enhanced consumer welfare (E.g. Reliance Jio case).

Thus, the argument of improving quality of search results cannot be disregarded, as it ultimately benefits the users. However, we must not overlook the implications of bias e-commerce platforms such as Amazon, Grofers, Nykaa, etc. where products that are not necessarily better in quality appear high up in the search result to the disadvantage of third-party sellers. For instance, if products sold by Cloudtail (in which Amazon has a substantial stake) on Amazon appeared higher in the search result not on the basis of relevance but as part of the strategy to push Cloudtail’s products, that would be an anti-competitive practice. The provisions under Section 4 of Competition Act could be invoked in these cases as well.

Way Forward

CCI’s decision demonstrates the ability of the Indian law to deal with new forms of abuse. Further, the Competition Law jurisprudence is to evolve with changing times including the propounding of the effects-based approach by the CCI. However, the effect of Search bias is not just limited to the visibility of business enterprises, but it has an over-arching impact in shaping public opinion and even affecting political outcomes (e.g. Cambridge Analytica Case). Today, when more people have access to the internet than ever before, it is important that search engines ensure transparency in their bias. It will ensure that the rights of all stakeholders such as consumers, business enterprises and citizens in general are protected. Relevance as the basis has stood the test of time, but other markers like popularity, design, quality etc. used by search engines may also affect search neutrality. Therefore, there is a need for an informed debate over the most appropriate basis of bias that keeps a check on the abuse of dominance in the market as well as suppression of information in the society in general.

 

[1] https://www.epw.in/engage/article/should-google-search-engine-be

[2] The Anatomy of a Large-Scale Hypertextual Web Search Engine (1998)

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De-linking the Deep Links: An Insight Into the PVR-Justdial Controversy

Posted on by Tech Law Forum NALSAR

This post by Archita Prawasi, currently in her 3rd year at NALSAR University of Law, was originally published here. In an explanatory piece, she brings forth the impact of technology on IPR.

A recent dispute between PVR and Justdial has highlighted the connection between various facets of networking and IP infringement that ensues through the use of regular networking tools like deep links, meta tags and frames. With the interim order by the Delhi High Court against Justdial, it seems that new age digital awareness is catching up with the old and still relevant IP laws in the country. Before discussing the facts of the dispute, it is relevant to discuss the implications of the networking tools forming the dispute.

Networking techniques employed

  • Linking: It is largely bifurcated into Surface linking and Deep Linking. Surface links are those that direct the user to the home page of a site, while deep links are those that bypass the home page of the linked website and directly display the content in the internal webpage.
  • Meta tags: These are small content descriptors that help indicate to search engines what a web page is about. Website designers use meta tags to label a website’s content to ensure that the majority of search engines index their website.
  • Framing: It is an HTML technique that allows for the display of multiple documents in the same window. These are designed to keep one set of information visible even as the reader scrolls through another document. Sites that use frames typically use them to link to external web pages while keeping their own information and advertisements at the top of the page so that the user does not need to visit the original information page which results in a loss for the original website.

PVR v. Justdial

The parties PVR Pvt. Ltd. and Justdial were parties to a non-exclusive ticketing agreement that gave Justdial access to PVR’s ticketing software to book tickets for the cinema halls. The agreement expired in August 2018 after two subsequent extensions in 2016.

The defendants, i.e. Justdial, continued to offer online ticket booking services even after the expiry of the arrangement. The bookings were redirected to the BookMyShow platform through deep-links. The plaintiffs (PVR) approached the defendants regarding the same and were orally assured that the service will be discontinued.

Subsequently, in January 2019, a third party informed the plaintiff that the defendant was still offering online ticket booking for PVR Cinemas. It made web pages that displayed images of the defendant’s cinema halls and used their registered trademark to give the impression that the two parties were still commercially associated. PVR’s registered trademark was used in meta-tags of the web pages that had deep links to the websites of authorised third-party sellers.

Encroachment on intellectual property rights

While these networking tools are a great way of maintaining a good web presence, they can also be a notorious means of stealing the rightful web traffic of websites. The issue of deep links arises when the web traffic of the homepage of a website is deviated to an internal webpage of the same that reduces the possible revenue for the websites from the advertisements on the homepage.

While meta tags are not visible on the website, it still is a contentious tool discussed extensively in global and Indian jurisprudence. It is very common that a business uses a competitor’s trademark in the meta tags of its own website so that the search engine indexes the website in the search results when the keyword is entered. This again, results in diversion of web traffic to the competing website.

However, some people use meta tags to describe their services without the mala-fide intention of diverting traffic and still become entangled in an IP infringement suit. While ignorance of the law is no excuse, unawareness about a particular trademark is often possible and may result in unfair punishment. For instance, a second-hand car dealer might use descriptors like Honda or Maruti to index his website in the search engine. While his act might lead the user to click the link believing it to be the intended website, (thereby qualifying the initial interest confusion doctrine) it will not materially harm the companies if the website states that the owner deals in second hand cars. The diverted web traffic will not be of any utility to the shop owner if he has no advertisements listed on his website and the user has to re-surf the web for the intended address. While consent from the party whose trademark has been used can be a way to evade the infringement, it is not practically possible for small businesses to receive permission from all the companies in the field. Hence, the dealer may find himself in a suit for infringing IPR of various companies, despite the mere intention to publicise.

An individual employing framing is likely to be held liable for trademark or copyright infringements if the material is modified without authorisation in the framed page or if the framed page endorses the parties’ commercial association when there is no such commercial relation between the two sites.

Global Scenario

The jurisprudence around deep linking/meta tagging and IP rights has been varied. Canada, Denmark, Italy and the Netherlands have mostly ruled in favour of the party alleging IP infringement.

The Imax Corporation case, in the Federal Court of Canada, was an IP infringement suit filed by Imax against Showmax for framing web pages in a manner that would convey commercial connections between the two parties. The Court, in this case passed an injunction against the defendants due to harm caused to the plaintiff’s goodwill and reputation.

The Courts of Rome and Milan have ruled in favour of the plaintiffs in cases of deep linking and framing web pages that could confuse users as to the relation between the parties. The Court of first instance Leeuwarden, a case adjudged in Netherlands followed similar rationale as discussed above.

However, cases in USA tend to sway both ways. While the Ninth Circuit Court in the Brookfield Communications case injuncted the defendant, West Coast Co. from using “moviebuff.com” which would have infringed on their trademark of ‘Moviebuff’. The Court discussed the doctrine of initial confusion according to which when the user browses the internet, the link by west coast could create a confusion in the mind of the user about Brookfield’s Moviebuff website.

On the other hand, the District Court of California, in the case of Ticketmaster Corporation held that Microsoft’s unauthorised deep linking of its ‘sidewalk.com’ to Ticketmaster’s events pages circumventing the plaintiff’s homepage did not constitute unfair competition or passing off because the ultimate sale of tickets was done through the plaintiffs. The present controversy between PVR and Justdial is similar to the Imax and the Ticketmaster’s Case.

Indian Jurisprudence

The Jurisprudence around meta tags/deep links and IP infringement in India has been pro-plaintiff. The Court has followed a similar reasoning as was discussed in the global scenario in various Indian cases like Mattel, Inc, Consim Info Ltd. vs Google, Kapil Wadhwa vs. Samsung, and Christian Louboutin.

However, in cases of meta tagging, the Court has also accepted the defence for use of meta tags by competing businesses. The Madras High Court discussed “nominative use” of meta tags while referring to some cases of the Ninth Circuit in USA. The Court laid down the following parameters for a meta tag to qualify for nominative use:

  1. the product or service in question must be one not readily identifiable without use of the trademark;
  2. only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and
  3. the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

However, these conditions are quite onerous to prove and hence, in practice, Courts often rules in favour of the party alleging infringement. While this protects the goodwill of the plaintiff, it invariably restricts the bona fide users of trademark who use the trademarks for purely descriptive purposes.

Conclusion

In the present dispute, between PVR and Justdial, the Court has passed an order holding it to be a prima facie case of infringement and passing off in favour of the plaintiff.  It has said that unless an interim injunction was passed, the plaintiff would suffer irreparable harm and hence, restrained the defendants from using the registered trademark for PVR or any deceptive variant.

This dispute provides an opportunity to the judiciary to instate guidelines to regulate the use of different networking techniques and prevent piling of litigation. It should be acknowledged that IPR awareness in relation to the use of the internet is not enough and explainers for different avenues that internet provides for proliferating e-business and regulations around them to ensure a reduction in IPR suits would help.

References:

In favour: Oppedahl & Larson v. Advanced Concepts, United States District Court for the District of Colorado, Civil Action Number 97-CV-1592 ; Playboy Enterprises, Inc. v. Netscape Communications Corp., 354 F.3d 1020 (9th Cir. 2004) ; Nissan Motor Co., et al. v. Nissan Computer Corp. 378 F.3d 1002 (9th Cir., 2004) ; SFX Motor Sports Inc., v. Davis, 2006 WL 3616983.

Against:  Bijur Lubricating Corp. v. Devco Corporation 332 F.Supp.2d 722, Civ. No. 00-5157 (WHW) (D.N.J., August 26, 2004) ; Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195; 72 U.S.P.Q.2d 1200 ;  Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 2007 U.S. App. LEXIS 11420, 99 U.S.P.Q.2D (BNA) 1746, Copy. L. Rep. (CCH) P29,380 (9th Cir. Cal. May 16, 2007); Kelly v. Arriba Soft Corp. (U.S. Court of Appeals for the Ninth Circuit, July 7, 2003)   336 F.3d 811.

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Perils of PUBG Ban in India & the Enemies Ahead

Posted on by Tech Law Forum @ NALSAR

[Ed Note: The following post has been authored by Anirudh Vijay, a fourth year student of B.A. LL.B. (Hons.) at Faculty of Law, Jamia Millia Islamia, New Delhi. In an engaging read, Vijay talks about how the Gujarat government’s decision to ban popular game PUBG is problematic, and provides recommendations in this regard. Read to find out more!]

Introduction

Recently, in the Indian state of Gujarat, several Police Commissioners have issued orders restricting use of the popular game of Player Unknown’s Battleground (“PUBG”) under Section 144 of Code of Criminal Procedure, 1973 (“Cr.P.C.”). In pursuance of the same, 10 youngsters were reportedly arrested for disregarding these orders under Section 188 of Indian Penal Code, 1860 (“IPC). Subsequently, a PIL was filed in the Gujarat High Court by the Internet Freedom Foundation challenging the ban orders & arrests made by Gujarat Police. However, it was dismissed on the ground that the scope of the said petition does not fall under the ambit of “public interest litigation”.

In contrast, another PIL was filed in Bombay High Court by an 11-year old through his father, praying for initiation of PUBG ban, on the grounds that it promotes immoral conduct such as violence, aggression, gaming addiction, cyber-bullying etc. Following this, a Bench of the court directed the Secretary of IT Ministry to review the game and take actions if any ‘objectionable content’ is found in it. The matter is presently pending before the court.

The questions that arise here whether the orders of the Gujarat Police to ban PUBG are arbitrary or not; and whether the arrests made by the police in this regard are illegal or not. The present post shall first address and answer the above questions. This shall be followed by the analysis on the interplay between the judicial and executive process of banning the game. Subsequently, the post will put forth recommendations based on the overall discussion.

Why the Orders on PUBG Are Arbitrary & Unreasonable?

It is S. 37(3) of Gujarat Police Act, 1951 (“GP Act”) and S. 144 of Cr.P.C. that provides power to the Police to issue orders in urgent cases of nuisance or apprehended danger. The English translation of concerned orders states:

“…it comes to our knowledge that due to games like PUBG GAME/MOMO CHALLENGE violent traits are shown to be increased in youth and children. Due to these games, the education of children and youth are being affected and it affects the behaviour, manners, speech and development…”

A perusal of the order shows that the police had issued it without any substantive evidence to prove PUBG provoking violent traits. In fact, the order was issued based on mere knowledge and perception of threat without adequate evidentiary substantiation. This is in complete violation of the Ramlila Maidan Incident, In Re [(2012) 5 SCC 1] case, where the Supreme Court of India held that Section 144 cannot be invoked in case of mere apprehension, without any material facts to indicate that the apprehension is imminent or genuine.

Secondly, orders can be issued under Section 144 if there exists an urgent situation which could result in grave consequences as held in the case of Madhu Limaye v. SDM Monghyr [(1971) AIR SC 2486]. Certainly, playing PUBG does not constitute any urgent or grave consequences and is merely a game for the purpose of entertainment. Moreover, the allegation on PUBG having violent traits to cause grave consequences, was recently rejected by the Nepal Supreme Court on April’19, who stayed the PUBG ban imposed by Nepal’s government.

Lastly, the Police orders have imposed restriction on the right of free speech & expression under Article 19 of our Constitution by banning PUBG, and has thereby disregarded the ‘test of proportionality’, as applied by A.K.Sikri J. in K.S. Puttaswamy v. Union of India [(2019) 1 SCC 1, p. 132]. As per this test, the state can impinge a right (i) if there exists a law for it; (ii) such that the restriction must have a legitimate state aim; (iii) and should not have any disproportionate impacts on the right’s holder. In relation to (i), it is true that the Cr.P.C. contemplates statutory provisions to restrict such rights. However, in the present case, the Police officials have not properly adhered to it while imposing the ban, as has been discussed above. As for (ii), a ‘legitimate’ aim for the state entails making a lawful approach to maintain players’ health and tranquillity. Apparently, the police’s order does not constitute a legitimate aim as it was based on the rationale of controlling moral panic (and not health), and is bad in law. The aim pf “moral panic” is subjective and discretionary as what is moral for one, may not be moral for other. Moreover, in relation to (iii), the arrests of students made by the virtue of the said orders will have disproportionate impacts on them as they were arrested for merely playing a game. These arrests will in harm the students’ reputation at school, college and office, having a deeply negative impact on them. A proportionate approach would be psychological counselling & social support and not criminal prosecution or imprisonment initiated by the ban. Hence, the orders of the Police Commissioners are arbitrary and unreasonable.

Why the Arrests Made by Police are Illegal?

Statutorily, an arrest can be made under Section 188 of IPC for violating Section 144 of Cr.P.C. A person could be arrested only if he disobeys the order duly promulgated by a public servant, and if such disobedience causes, tends to cause, or risks obstruction, annoyance or injury, to any person lawfully employed. However, a mere disobedience of Section 144, without the aforesaid elements, is not a ground for arrest under Section 188 and the same was observed by the court in the case of Ramlila Maidan. Interestingly, Mumbai police used PUBG to promote helmet necessity for riders by sharing an image of a character of the game wearing helmet on their Twitter handle. Such promotion of game by public servants reflects that even the state’s own machinery does not apprehend any ‘obstruction, annoyance or injury’ being caused by playing PUBG. Certainly, the arrest made are illegal as it was done beyond the scope of the concerned provision.

Moreover, in the case of Gulam Abbas v. State of Uttar Pradesh [AIR 1981 SC 2198], the Supreme Court held that the purpose of Section 144 is to provide adequate, reasonable and temporary remedy to ‘emergency cases’ of nuisance or apprehended danger. Similarly, in Acharya Jagdishwarand Avadhuta v. Police Commissioner, Calcutta [AIR 1984 SC 512], the Supreme Court held that the nature of the order under Section 144, Cr.P.C. is intended to meet ‘emergent’ situation. In the present case, the Police orders gave reasons that the education of children are being affected through PUBG. This effect on their studies does not constitute any ‘emergent’ situation under which there exist any risk of apprehended danger.

Thus, the ban orders as well as the arrests made by the Gujarat Police are unreasonable, arbitrary, illegal and are exercised beyond the permissible limits of the statutory provisions. If at all, a PUBG ban is found to be required, there is a proper procedure that has been statutorily stipulated to initiate it, as has been explained below:

How to Initiate A Ban On PUBG?

The Information & Technology Act, 2000 (“IT Act”) has set out the complete process of blocking Apps or online games under the Procedure and Safeguards for Blocking for Access of Information by Public Rules, 2009 (‘Rules’). Such blocking can be done either by the officers defined under the IT Act [I] or by any order issued by the court of law [II].

I. By the Executive

Rule 4 states that a “Nodal Officer” should be compulsorily be appointed by the organisation (mainly the state-government) to whom a citizen can submit his/her request for blocking any electronic information. After examining the request, the Nodal Officer transfers the application of request to the “Examination Committee” headed by the “Designated Officer”. As per the Rules, the Designated Officer is appointed by the Central government along with other representatives of Ministry of I&B, Law & Justice and Home Affairs, who are not below the rank of a Joint Secretary. This Committee checks whether the application is in accordance with Section 69A of IT Act or not and in turn submits a recommendation to the Secretary, Dept. of IT though the Designated Officer.

The direction of blocking the information is passed after the approval of the recommendation by the Secretary. This direction should also provide the reasons for blocking the game. A Review Committee, set up by the Central government, further validates this direction by setting up meetings after every 2 months and may set aside the blocking orders (if direction is not in conformity with Section 69A of the IT Act), as prescribed under Rule 14.

II. By the Court

The Rule 10 authorizes the court to block any electronic information and bounds the Designated Officer to implement the same as soon as he receives the copy of that order. Section 79(3)(b) of the IT Act holds intermediaries liable for non-compliance of the court’s order. For example, the Court in 2017 took suo moto cognizance to ban the Blue Whale Game and directed the government & intermediaries like Google Play, Apple Store etc to remove the said game from their domains.

Further, as mentioned above, any such ban must be in conformity with Section 69A of the IT Act, which provides a list of grounds based on which any electronic information may be blocked. This list includes reasons such as security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence. The potentially suitable ground in the PUBG case, namely ‘preventing incitement to the commission of any cognizable offence’ has itself been interpreted as cognizable offence by the Indian courts. Therefore, the court can initiate a ban on the PUBG only after it is proved by the authorities that such game contains content which can led to the commission of any cognizable offence. Similarly, the concerned authorities defined under the Rules, 2009 can impose a ban only if they find the working of the App in contradiction to the Section 69A of the IT Act, 2000. Although Bombay High Court has made an effort to adhere to rules set out under IT Act, 2000 by approaching the Secretary of IT Ministry, yet both Gujarat Police and Gujarat HC have miserably failed to acknowledge the banning procedures under IT Act, 2000. Moreover, the Gujarat Police have processed ban which do not met the requirements of Section 69A of IT Act, 2000.

Recommendations

In view of the above discussion and analysis, the author would like to propose following recommendations:

  1. The Police officials must release all the arrests made by the virtue of the PUBG orders with immediate effect.
  2. The state must ensure that orders under Section 144 of Cr.P.C., which are exercised beyond the excessive limit and infringes the Supreme Court verdicts, should not be passed.
  3. The concerned authorities of the state should first approach the Nodal Officer, in cases where the banning of any digital source is required. The process of such banning should take place only as per the procedures laid down under IT Act, 2000.
  4. The state should resort to Section 144 only in extraordinary situations where there are no other reasonable means of preserving public health and tranquility.
  5. Psychological counselling and social support should be preferred over criminal prosecution and imprisonment as a remedy to counter the intense gaming addiction.

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Blockchain and Virtual Reality—A Heavenly Merger?

Posted on by Tech Law Forum @ NALSAR

[Ed Note : The following post has been authored by guest contributor Davor Gasparevic. As Davor puts it, he is a writing virtuoso with several years of experience across a wide range of online industries, and has established himself as a crucial contributor for several online businesses and startups.]

At first glance, the convergence of Virtual Reality (VR) with Blockchain might seem like the most unnatural merger in technological history. On one hand, you have two fast-rising superstar platforms that both fascinate and capture the imagination of millions, but on the other, the two technologies started as completely disparate in terms of their aims and scopes.  After all, blockchain started out as a decentralized ledger system for tracking cryptocurrency, and VR was developed for entertainment purposes. Combining them and creating something truly unprecedented might be seen as a once in a lifetime opportunity.

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The Dark Web : To Regulate Or Not Regulate, That Is The Question.

Posted on by Shweta Rao

[Ed Note : In an interesting read, Shweta Rao of NALSAR University of Law brings us upto speed on the debate regarding regulation of the mysterious “dark web” and provides us with a possible way to proceed as far as this hidden part of the web is concerned. ]

Human Traffickers, Whistleblowers, Pedophiles, Journalists and Lonely-Hearts Chat-room participants all find a home on the Dark Web, the underbelly of the World Wide Web that is inaccessible to the ordinary netizen.  The Dark Web is a small fraction of the Deep Web, a term it is often confused with, but the distinction between the two is important.

The Dark Web unlike the Deep Web is only accessible through anonymous servers, as distinguished from non-anonymous surface web accessing servers like Google, Bing etc. One such server is The onion router (Tor),one of the most popular servers for accessing the dark web, which derives its name from the similarity of the platform’s multilayered encryption to that of the layers of an onion. Dark Web sites also require users to enter a unique Tor address with an additional security layer of a password input. These access restrictions are what distinguish the Dark Web from the Deep Web, which may be breached into through Surface Web applications. Further, the Deep Web may, due to its discreet nature, seem to occupy a fraction of the World Wide Web, when in actuality, it is estimated to be 4000-5000 times larger than the Surface Web and hosts around 90% of the internet’s web traffic.  The Dark Web, in contrast to these figures, occupies a minuscule amount of space, with less than 45,000 Dark Web sites as recorded in 2015. Thus, the difference between Deep and Dark Web lies not in their respective content, but in the requirements and means of access to these two spaces along with the quantity of web traffic they attract.

The Dark Web has existed nearly as long as the Internet has and begun as a parallel project to the US Department of Defense’s (USDD’s) 1960s ARPANET Project. The USDD allowed the Dark Web to be accessible to the public via the Tor for it to mask its own communications. Essentially, if the Dark Web was used for only USDD communications there would be no anonymity as anyone who made their way into the system would be aware that all communications would be that of the USDD. So, by allowing the public to access it via the Tor, the USDD could use the general traffic of the Dark Web through the Tor to mask its communications under the stampede of information passing through the Tor.

While the Internet became a household name by the late 90’s the Dark Web remained obscure until 2013 when it gained infamy due to the arrest of Ross William Ulbricht ( aka the Dread Pirate Roberts) the operator of the Silk Route, marketplace for illegal goods and services.

While fully regulating a structure such as the Dark Web is a near impossible feat, this arrest has indeed pushed the previously obscure Dark Web into the spotlight, putting prosecutors and law enforcement agencies across the world on the alert. This new-found attention into the workings of the Dark Web is the junction at which the debate for regulation policies emerges.

The debate on the status of surveillance of the Dark Web broadly has two branches. The first branch, which has emerged with more force post the exposure of the Silk Route, advocates for more frequent and stricter probes into the activities of the Dark Web. In contrast, the second branch weighs increased regulation against issues of breach of privacy, which is one of the main reasons behind use of servers such as Tor.

In order to understand the reasoning behind either branch’s stance, it is essential to look at the breakup of the Dark Web and its various uses, each finding its place at different points along the spectrum having legality and illegality as its extremes.

The Dark Web, as mentioned  previously, occupies a faction of the space on the Deep Web with less than 50,000 websites currently functioning, and the number of fully active sites are even lower. Legal activities take up about 55.9% of the total space on the Dark Web whilst the rest of the space contains illegal activities such as counterfeit, child pornography, illegal arms dealing and drug pedaling amongst others. Activities such as whistleblowing and hacking given their contextual scenario-based characteristic would thus not allow themselves to be placed in one or the other category and would fall into a “grey area” of sorts.

With over 50% of the activity on the Dark Web being illegal, the call for increased regulations seems to be reasonable. However, those who are regular residents of this fraction of the internet oft differ. And this hinges on, as mentioned earlier, the issue of privacy.

Privacy has become a buzzword across the globe in the recent past with various nations having to reevaluate the rights their citizens’ information had in the midst of the boom of the data wars. From the General Data Protection Regulations (GDPR) in the EU to the Puttaswamy case in India, across the globe, the Right to Privacy has been thrown into the spotlight. Its relevance only grows with corporations both large and small mining information from users across platforms. Privacy has thus become the need of the hour, and the privacy that the Dark Web provides has been one its biggest USPs. It has harbored anyone one requiring the shield of privacy including political whistleblowers who have in the past have released vital information on violations against citizens in both tyrannical regimes as well as in democracies. Edward Snowden, whose claim to infamy was indeed surrounding privacy and surveillance, had used and still continues to use the Dark Web to ensure the protection of any communications from his location, which is a Moscow airport terminal.

In the age of #FakeNews  targeting the journalism community, the need to protect the private Tor gateway that many journalists use to protect their sensitive information seems to be of paramount importance. But despite what the creators of the Tor would like to believe, the bulk of the active traffic (which differs from the actual number of sites present) in the aforementioned “illegal” branch of the Dark Web is predominantly is that of child pornography distribution.

However, this might not bode the end of the privacy sphere as created by the Tor within the Dark Web. Using the same logic as used by the USDD, given that the increased activity of child pornography and abuse sites is a known factor, it becomes easier for authorities to single out threads of heightened activity within the Dark Web without compromising its integral cloak of privacy. This tactic has been successfully used by the American FBI in the Playpen case where it  singled out the thread of rapid activity created by a  website called Playpen which had over 200,000 active accounts that participated in the creating and viewing of child pornography. The FBI singled out the traffic for this site due to its dynamic activity and once the source of the activity was precisely determined, the FBI in a unprecedented move extracted the Playpen website from the Dark Web onto a federal server and then were able to access the IP addresses of over a 1000 users who were then prosecuted, with the creator of the site having received 30 years of jailtime. This was all done without the privacy of other Tor users being breached.

Thus, whilst Hamlet’s existential question may not have a middle ground to settle on, the status of regulations on the Dark Web could be established by using the past precedent and by using better non-invasive surveillance methods along with international cooperation, in order to respect its true intended purpose.

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