Legislation UpdatesStatutes/Bills/Ordinances

The Parliamentary Committee of South Korea has approved a bill, Partial amendment to the Telecommunications Business Act (alternative) (Chairman of Science and Technology Information Broadcasting and Communication), on August 31, 2021.

 

Key highlights of the Bill are:

  • The Bill shall ban major app store operators like Google and Apple, from requiring developers to only use their payment systems to process the sale of digital products and services.
  • The Bill is intended to promote fair competition among participants in the app market industry by barring them.
  • The policies of Apple and Google policies usually require developers to pay the tech giants a commission as high as 30% of every transaction. Now, as per the current Bill approved by the Parliament, the developers will be able to avoid paying commission to major app store operators like Google and Apple by directing users to pay via alternate platforms.
  • The law also gives the South Korean government the power to mediate disputes regarding payment, cancellations and refunds in the app market.

The Bill awaits Presidential assent. Once passed, South Korea will be the first country to take a legislative action in curbing the Apple and Google’s app store charges.


*Tanvi Singh, Editorial Assistant has reported this brief.

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Introduction

Technological advancements in law practice have assisted the legal professionals in many ways. Current law practice cannot be imagined without legal technology. Previously, when the legal search engines and databases were unavailable, it would have taken much more time in legal research for case laws. One would have gone to different libraries for research and finally would have found some relevant information. At present, information is merely a click away. With technological advancement AI, machine learning, natural language processing (NLP) have also entered legal field. Artificial intelligence or AI is the capability of machines to emulate human intelligent behaviour.[1] AI can perform complex tasks by applying human intellectual characteristics. Machine learning is the mechanism through which a machine or a computer can improvise its performance by analysing new information and patterns.[2] Algorithm development is one such example of machine learning. Natural language processing deals with human and machine interaction.[3] If computers and humans have alike language then it would be very convenient for the legal professionals to develop software for assistance. With development of these AI technologies lawyers can have ease of work but there is a fear that with the advent of AI the employment might be affected. Benefits might come with certain disadvantage.

Anxiety pertaining to technology

 There is a general misconception that technological advancements will always bring unemployment, however it is pertinent to note that technology as a discipline is in itself a field where workers and professionals are required which in turn might increase the employment rate. At present the anxiety that AI will take over jobs of lawyers is far-fetched. That era is yet to arrive when works of AI would be credible enough without human intervention. Lawyers are often concerned about new technology, probably due to inability to understand it or may be due to the apprehension that the technology might make their jobs obsolete.[4] However more a person understands the new technology, more likely it is to get over with the fear. Prima facie, AI has an impression of something as robots with human deception conquering over the jobs of human and having an ability to develop dominion over the human race. We are oblivious of the fact that these technologies have been developed by humans in first place. Further, AI does not only mean robots, it is a science of computers having the ability to perform certain tasks with human intelligence. AI and other technological advancements have positively transformed the law practice by making research and other tasks convenient and easily accessible. Human intelligence used in the review of documents, proofreading, due diligence, etc. cannot be replaced, though mere assistance of AI can be used. It is pertinent to note that AI will create jobs in the field of technology which in turn would increase employment. AI cannot interact with clients by understanding the issues or argue in court of law. Credibility of an individual is more than AI as AI is the creation of humans ultimately. Though the next generation lawyers should have certain technical skills as well.

Contemporary fields of AI usage

AI is being used for various purposes by the lawyers, due diligence being one of them. Other purposes include automation, legal analytics and prediction technology. Paper would be dealing with due diligence part in an elaborated manner.

  1. Automation

Automation is the technology that uses specific rules to carry out tasks on the basis of decision trees that has a pattern which is followed as per the query.[5] This technology is used in advice systems in cross-border acquisitions and financing guide that can give precise overview of legal and financial development in any country. The guides can quickly provide answer to specific queries.[6] Automation technology can also assist in developing drafting systems saving time and cost. However, document creation is considered as general source of livelihood for lawyers. Automated documentation can certainly reduce costs but can affect the employment opportunities. Though automated documents will require a proof read, still it can encroach on many jobs.

  1. Legal analytics

Legal research is the skill that is a prerequisite for a successful lawyer. Very general principal methodology is identifying the relevant statutes and the provisions and applying the case law. The analytics technology will be based on software that involves advanced predictive technology like natural language processing and machine learning and it can analyse data from many case documents.[7] Previously, for such information, the research was very time consuming and there was human dependence for prediction of behaviours of particular Judge or Bench for the deciding a case.

  1. Due diligence

One of the major tasks of lawyer is to review the documents, fact and exercise appropriate care in carrying out task related to advisory, investments, mergers and acquisitions, real estate work. AI can ease the work related to e-discovery, contract review and background research. Usually, these tasks take a lot of time that can lead to issues of deadlines.

Kira systems is one such company that provides for the AI solutions to the law firms.[8] It automatically extracts and analyse important points from a contract which can be helpful in carrying out due diligence. Apart from due diligence, AI solutions pertaining to compliance, finance, lease abstraction is also provided.

AI in M&A due diligence

The main issue of AI in due diligence is that of its impact on lawyers, whether it will positively impact or not. In due diligence certain steps are essential like background search regarding any pending litigation or financial liabilities and identification of potential risk due to merger.

The main aim of due diligence in M&A is to detect the potential issues that may come up in any transaction. The company acquiring will be requiring certain disclosures form the target company to identify and allocate the risks involved before acquiring the business. Parties to the transaction sign the confidentiality agreement and then the target company provides the relevant documents. Gathering the relevant documents can be a difficult task as there can be different offices or locations from where the document is to be collected. This could also lead to missing out of an important document. Acquirer then sends a list of the documents that are required to be uploaded in the virtual data room, for this target company has to digitise the documents. After the documents have been uploaded, the counsel of the acquiring company reviews the documents and analyse the risks related to pre-existing liabilities and consequences. If the parties have consensus then they sign the letter of intent.

Due to large amount of electronically stored information, background search has significantly changed. Now the information can be searched online, for example regarding pending litigation, the court’s website can be searched and other information about the company can be obtained through the Ministry of Corporate Affairs’ website. Despite information being electronically stored due diligence can be a time consuming and lengthy process. Previously lawyers had to go through thousands of paper documents but at present ESI (electronically stored information) management system can conveniently perform the tasks.[9] This technology can be used in M&A due diligence process as well for disclosure which can be then used in risk allocation and establish further steps.[10] A study conducted by one of the makers of AI due diligence technology, LawGeex stated that AI can be better in finding errors and analysing risk in non-disclosure agreements.[11] Further, it was found in that study that it took about 92 minutes for an average lawyer to review five agreements with 85% accuracy whereas AI reviewed all five agreements in 23 seconds with 94% accuracy.[12] Automation technologies, reflective random indexing can assist in M&A due diligence. In reflective random indexing a system learns to deduce on the basis of previous works.[13] AI and machine learning process can prioritise, classify, organise and identify documents that are to be disclosed according to the business agreement with an increased efficiency and less cost.[14] Major amount of lawyer’s fees is generated due to the investment of expensive hours in document review.[15]

Concerns regarding AI in due diligence

There are two aspects attached to the use of AI technology in due diligence. First, that an individual will be more credible than a machine. Machine is created by humans so in case of error an AI system cannot be held liable. Second important aspect to note is that a human can err in performing tasks but a machine does what it is programmed to do, it can carry out tasks more efficiently so chances of error due exhaustion is very minimal. Ultimately, AI cannot in itself perform tasks in isolation, it is made to assist human not replace them. The client company might have an opinion or a preference regarding the lawyers using or not using AI. Some might prefer AI equipped technology as there is less chance of error and increased efficiency, others on the other hand might go for the regular mechanism that does not include AI.

Software failure and lack of proper training of AI can also lead to missing of vital information and it should be noted that a software being made liable for an error is highly questionable.[16] Further, the sensitive confidential information might be exposed due to the threat of cyber attack and viruses. Furthermore, the question of attorney client privilege might be questioned in certain jurisdiction. Firms opting for AI technology must not be willing to invest only on AI technology but also on appropriate human resource to train such software or else it might backfire the purpose for which it was established. AI can certainly be used as a tool of assistance but cannot replace lawyers.

Conclusion

AI in due diligence and law practice is a field yet to be discovered. There can be different opinion regarding AI in legal profession that it can be cost effective and convenient or will invite unemployment. It is pertinent to note that AI ultimately develops from human mind so the idea of AI replacing human is still a mystery. The technology in the field of law aims to assist the lawyers and not replace them with robots. In medical science, the operation, even of conducted through robotics technology, even then the machine is operated under the supervision of the qualified doctor. Further, even if AI technology affects employment, not all jobs of lawyers can be replaced in near future. Uniform governing law might be required in future for governing AI technology. We are still a long way from robot lawyering era. There are many questions regarding the equal access to the essential technology required for lawyers. The education system for a law degree has to be uniform and technology must be taught to them to cope with the progressive technologies.


Pursuing BA LLB (Hons.), 8th semester, Institute of Law, Nirma University.

[1] Intelligence, Merriam Webster Dictionary.

[2] Machine Learning, Merriam Webster Dictionary.

[3] Dr Michael J. Garbade, A Simple Introduction to Natural Language Processing, Becoming Human,  (13-6- 2020, 10:02 a.m.), <https://becominghuman.ai/a-simple-introduction-to-natural-language-processing-ea66a1747b32>.

[4] Brandy Jo Lea and Prof. Kevin P. Lee, Artificial Intelligence in the Legal Profession, Campbell Uni. J. (December 2018).

[5] Thought Leadership, Artificial Intelligence and the Future for Legal Services (13-6-2020, 01:05 p.m.), <https://www.cliffordchance.com/content/dam/cliffordchance/briefings/2017/11/artificial-intelligence-and-the-future-for-legal-services.pdf> at p. 4.

[6] Id.

 [7]Supra Note 4.

[8] Kira (14-6-2020, 11:05 a.m.)  <https://kirasystems.com/>.

[9] Ben Klaber, Artificial Intelligence and Transactional Law: Automated M&A Due Diligence, UMIACS (14-6-2020, 2:00 p.m.), <http://users.umiacs.umd.edu/~oard/desi5/additional/Klaber.pdf> p. 1.

[10] Id.

[11] Joe Dysart, AI Removes the Drudgery from Legal Due Diligence, ACM News (14-6-2020, 5:10 p.m.), <https://cacm.acm.org/news/233886-ai-removes-the-drudgery-from-legal-due-diligence/fulltext>.

[12] Id.

[13] Trevor Cohen, Roger Schvaneveldt and Dominic Widdows, Reflective Random Indexing and indirect inference: A scalable method for discovery of implicit connections, Journal of Biomedical Informatics 43 (2010) 240-56, <http://users.umiacs.umd.edu/~oard/desi5/additional/Klaber.pdf>.

[14] Supra Note 9.

[15] Justin Evans, Use of Artificial Intelligence During Due Diligence Creates a Global View of a Target Company, Intellectually Jay (14-6-2020, 8:35 a.m.), <https://www.intellectuallyjay.com/2018/02/use-artificial-intelligence-due-diligence-creates-global-view-target-company/conclusion>.

[16] Javier Tortuero, Artificial Intelligence and M&A Due Diligence Current Trends, NYSBA (14-6-2020, 10:46 a.m.), <https://nysba.org/NYSBA/Sections/International/Events/2017/Corporate%20Wedding%20Bells%20CrossBorder%20Mergers%20and%20Acquisitions/Coursebook/Panel%202/Artificial%20Intelligence%20and%20Mergers%20and%20Acquisitions%20Due%20Diligence.pdf> p. 3.

Interviews

Gunjan Chawla is currently working as a Programme Head, Technology and National Security at the Centre of Communication Governance (CCG) at NLU Delhi. She has been interviewed by EBC/SCC Online Student Ambassador Nitya Bansal who is currently pursuing law from NLUD.

  1. Can you elaborate on your academic background? 

I was part of the first batch of students to graduate from National Law University Delhi (NLU Delhi) in 2013. The wide variety of elective seminar courses offered at NLU Delhi now permits students to find their own niche in the legal fraternity. However, at the time, the law school did not offer many international law-oriented seminar courses, so I chose to go down the path of criminal and constitutional law. I spent my first year out of law school in criminal litigation as a junior in the chambers of Ms Arundhati Katju and the second as a Legislative Assistant to a Member of Parliament (LAMP) fellow through PRS Legislative.

I was intent on gaining professional experience before starting a master’s degree – in hopes of improving my chances to win a scholarship for funding higher studies abroad. I applied for admission to LLM programs the year I was working as a LAMP fellow, and was awarded the Charpak Scholarship of Excellence in 2015 by the Embassy of France in India to pursue a Master in International Affairs/Master in Law (MIA/LLM) dual degree program – split between Institut d’Études Politiques de Paris (Sciences Po) and Georgetown University Law Center in Washington DC.

At Sciences Po, I pursued a specialisation in international security for the Master in International Affairs with a thematic concentration on Defense and Security Economics. At Georgetown, I chose the LLM program in national security law – which was quite an interesting mix of domestic criminal, constitutional and administrative law on the one hand, and international human rights, international humanitarian law/law of armed conflict and international politics on the other.

  1. What, according to you, is the importance of legal research?

Legal research is everything – for practitioners, policy researchers as well as academics – the profession demands that you spend anywhere between 50-80% of your time reading and researching. The method, breadth and depth may vary depending on your particular role in the organisation or office, but research will be at the very core of your job as a lawyer.

Unfortunately, this is a truth that disappoints many law students. This is especially true for those of us who are first generation lawyers and/or draw idealistic inspiration from movies and TV shows – where the best lawyers only swagger around swilling scotch and captivating courtrooms with eloquent speeches. We often tend to overlook the countless hours you need to spend at the library buried in books or hunched over your laptop screen to build a novel argument or legal strategy.

  1. How did you develop an interest in technology and law? Did your criminal law background have any role to play in this?

Quite frankly, working in technology law and policy was never really part of the original plan. The increasing importance of cyberspace governance as an issue in international relations at large had been quite apparent for some time, but I was always more attracted to the law of armed conflict/international humanitarian law (LOAC/IHL) branch of international law than organisational structures and governance. As a matter of fact, I happened to stumble into technology policy work at the Centre for Communication Governance (CCG) at National Law University Delhi (NLU Delhi) by way of international law rather than criminal law.

After my return to Delhi from The Hague in 2018, CCG invited me to deliver a series of guest lectures on international law and cyber conflict. It was a wonderful experience for me personally to return to the NLU Delhi classrooms, only this time I was on the other side of the benches. They happened to have a vacancy in the technology and national security team at the time, which I applied for, and it turned out to be a good fit.

The learning curve has been very steep over the past 2 years, and I have learnt a lot from my colleagues during this time. Of course, there was also a unique advantage to return to my alma mater in a different capacity – the luxury of having the home ground advantage at the workplace made navigating new and difficult situations a lot less stressful.

  1. You have studied at Sciences Po in France and Georgetown University. How was your experience at these highly reputed foreign universities?  

The first year at Sciences Po was very different to everything I had been prepared for. It was a challenge to depart from my practical legal training and switch to what was a combination of international relations theory, political science, economics and military strategy. But this also presented the opportunity to learn an entirely new method of writing – the French use the Hegelian model of “thesis-antithesis-synthesis” for organising the structure. It was fascinating to learn an alternative to IRAC (the issue rule analysis conclusion) structure to organise the same substantive content. I also took a basic course in public international law again – only this time, it was taught entirely in French. But the most “mind-opening” experience was to study sociophysics – a discipline of study I did not know even existed.

The second half at Georgetown too, was amazing in different ways. It was a strange relief to return to familiar tools of statutory interpretation, judicial precedent and common law traditions. Other than brilliant academics like Professor David Luban, many of the professors whom I learnt from had been part of the Obama administration in advisory or bureaucratic roles or were military veterans and former JAG (Judge Advocate General) officers. The professional experiences and insights of the faculty made for an exponentially enriching educational experience.

To be fair, this was the case at Sciences Po too, where former military officers, diplomats and bureaucrats also teach alongside “pure” academics. So I suppose when I say different, I mean my own approach to the subjects of study was a more theoretical in Paris and more practice oriented in DC. In the bigger picture, it was very useful to hear about the same or similar themes in international security from the European and American perspectives to inform and develop my own principled and/or political positions on a variety issues in the longer run.

  1. What do you think Indian universities can do to match their academic standards to these international universities? As in, what do you think is lacking in our universities?

I believe what we need is a lot more training in research and writing skills. While the substantive content of the branch of law you choose to study or practise may differ, research and writing skills will be overarching requirements wherever you work. The challenge in teaching these skills is that it requires individual attention, at least to a certain degree. On the other side, the challenge in learning these skills is want of practice. So we need to strike a better balance between quality and quantity of writing we demand from students for their academic evaluation in a way that maximises the student’s ability for original critical thinking, articulation of arguments and of course, persuasion.

  1. You have worked in the ICJ as a judicial fellow. For those interested in pursuing legal research, can you elaborate on the process for those applying for such a position?

Yes, I was a judicial fellow at the International Court of Justice in 2017-2018. The judicial fellowship programme at the Court is funded by nominating universities – in my case, it was through Georgetown.

Unfortunately, not all universities that teach international law necessarily nominate fellows for appointment to the Court – there is a very clear and visible majority of universities from North America and Europe. The cost of living in the Netherlands alone makes it very difficult for public universities in India specifically and the Global South generally to sponsor one student to spend a year in The Hague. So, for a scholar from a Global South country, the route to the Court necessarily goes through a handful of universities that nominate and sponsor fellows, so pick your school carefully after thorough research if this is a goal you would like to pursue. Each university has a different selection process for shortlisting nominees – some may have only paper application and some may have an interview round as well.

Given that the cost of living in The Hague for one year far exceeds even the total tuition fee paid by students for a five-year education at any national law school or law college in India, it appears unlikely to me that public universities in India would have sufficient funds available to sponsor judicial fellows in The Hague. I am hopeful that the UN General Assembly’s recent resolution requesting the UN Secretary General to set up a trust fund to support the judicial fellowship programme for scholars will enhance the diversity among applicants accepted to the programme, and open up new routes for students everywhere to work at the Court as judicial fellows.

Currently, the sponsoring universities send their list of nominees to the Court, where the judicial fellows are finally selected – no more than one from each nominating university. Other than demonstrating a certain level of competence in public international law, knowledge of French in addition to English is an important factor in selection. French was long regarded as the first language of diplomacy and the Court takes its bilingual functioning very seriously so, even if one ends up working with an anglophone team, being a francophone is far more likely to enhance the probability of selection.

  1. How was your experience in ICJ working as a judicial fellow?

Absolutely fantastic. It felt almost surreal walk to the Peace Palace everyday and live the dream of viewing proceedings in the Great Hall of Justice. Judicial fellows work closely with the teams of their respective supervising Judge, consisting of the Secretary and Associate Legal Officer assigned to the Judge. Each team functions differently, so the experiences of the judicial fellows often differ significantly.

I was assigned to assist H.E. Judge Patrick L. Robinson who gave me the opportunity to work on drafting dissenting and separate opinions in addition to research work. It was very interesting to follow a wide variety of cases through different stages of their lifecycle, including an application of provisional measures – it helped me develop a better informed, more nuanced perspective on the role of international politics in the formation and development of international law in the settlement of inter-State disputes.

  1. What kind of skills do you think students need to have to pursue legal research, especially at a level which is appreciated internationally? How do you think they can equip themselves with such skills?

Research is the easy part – the hard part is communicating the research you have done clearly, in a way that is easy to understand for your target audience. The writing is different if the target audience is your employer, your professor, a judge, a ministerial department or the academic community, law students or the general public at large. Knowing your audience and structuring presentation specific to its requirements is crucial to effectively present your research findings. As for how, there is no substitute to practise in up-skilling yourself. Write, edit, rewrite, repeat. The more you write, the more you will learn how to write better. Do not hesitate to open up your drafts to constructive criticism from teachers or colleagues whose writing skills you admire. Most importantly, do not be afraid of multiple drafts and critical reviews – it is a sign of your capacity for self-improvement, not weakness or evidence of bad writing.

  1. What would be your guidance for law students applying to foreign universities for their masters courses?

Think about why you want to pursue a master’s degree and only apply to universities that have faculty, curriculum or culture that is most conducive to your personal and professional growth. Do you want to pursue a field that is not taught as well in India? Do you want to work abroad or come back home? Do you want to enhance or secure employability in other job markets? Will you be able to progress in your chosen field without the master’s degree? Is it out of academic interest in a particular field?

Studying abroad is a huge investment, and to ensure that you get adequate returns, one needs to plan carefully, and be aware of one’s own strengths and weaknesses. Equipped with this self-awareness you will be able to better assess which universities are suitable for you, rather than the admissions evaluation being only one way.

  1. How did you end up working at CCG? What is the kind of research you are engaged in as part of CCG?

I was very clear about my intention to return to India after obtaining my master’s degree. When I signed up for a specialisation in national security law at Georgetown, I had a very specific goal in mind. In fact, the week before my LLM final exams I briefly came back to India solely for this purpose, to attempt recruitment into Indian Army’s JAG (Judge Advocate General) Department. I know it sounds absurd to do that, but it was the last year I could do so – if I waited another year, I would no longer have been eligible to join the army. Even though this attempt was unsuccessful, thankfully I did not really have the luxury to mourn my failure at the time – exams were just around the corner.

This setback was also softened by the fact that by this time I had already heard back from the ICJ about my selection and had some clarity on what my professional life would look like after graduation. The exposure then opened up other opportunities I would not have anticipated otherwise, like being invited by CCG to deliver guest lectures on international law and cyber conflict at NLU Delhi. A month or two later, I was inducted into CCG to lead the work of the technology and national security vertical. International law applicable to conflict in cyberspace or cyber warfare is a major focus area in our research, in addition to domestic law and policy on cyber security, cyber crime and related issues.

I view my role at CCG as a dual one – part academic and part public policy practitioner. The first is on the academic side, where the work largely involves research and writing on these issues. Additionally, I also teach the elective seminar course on technology and national security law and policy to fourth and fifth year students at NLU Delhi. The second is on the policy side, as we regularly participate in public consultations and provide inputs on issues in technology policy within our research mandate to various ministries at the Central level, as well as the National Security Council Secretariat – where our detailed comments and suggestions on the National Cyber Security Strategy for 2020-2025 were very well received.

  1. What are you currently working on, if you could tell something about your current research?

Currently, I am looking forward to the release of India’s National Cyber Security Strategy 2020-2025. The National Cyber Security Coordinator (NCSC) Lt Gen Rajesh Pant recently announced that the strategy document will espouse the principle of common but differentiated responsibility (CBDR) for the apportionment of responsibilities among various stakeholders in cybersecurity governance. My colleagues at CCG and I were thrilled to hear this announcement because this principle was one of the suggestions we submitted to his office in our comments. It is encouraging for policy enthusiasts like myself that the NCSC has taken a truly participatory approach to the process of formulating the strategy and including academia. We are looking forward to reading the Government’s interpretation of CBDR and of course, developing new independent scholarship on this and related issues.

The elective course “technology and national security law and policy” will continue to be offered at NLU Delhi as part of our capacity-building mandate in the following semester. If the lockdown-induced format of online teaching continues, we hope to expand our reach to other law schools as well.

 

  1. What are the changes you are aiming to bring about through your research? What kind of a future do you envisage for our national security in these times of increased global cyber surveillance?

The proliferation of global cyber surveillance is symptomatic of unprecedented shifts in power relations between the individual vis-à-vis institutions of the State across jurisdictions (vertical) as well as between States (horizontal) – owing to rapid advancement in information and communication technologies to a large extent. The specific how’s and why’s will vary from one case to another, but the general trend is evident.  As I have written elsewhere, I do not believe that the ideal of “national security” – very much like the ideal of universal human rights protections – whether considered as an aspiration, principle or goal can ever truly be “achieved”. At best, it can only be managed and at its worst, must be salvaged.

More often than not, it is an “ends and means” problem. With the emergence of cutting-edge technologies we are struggling as a society to absorb fully, the means are becoming increasingly expensive while the ends remain similar to what they were say, fifty years ago, if not the same. So the constant, unchanging requirement for Governments who want to “ensure” national security is to consistently strive for a balance between declared intent and actual capabilities in the face of unforeseen disruptions. Through my research and writing, I hope to bring this nuance and balance in academic discourse and public debate on issues at the intersection of technology and national security on the one hand, and domestic policy and international law on the other.

New releasesNews

Table of Contents

Simple Amendments, Clipped Democracies and no Privacy – Need for Informed Participation

Smriti Kanwar 1

Influence of Technology on Sports: A Policy-based Perspective

Wilfred Synrem 19

Blockchain and Cryptocurrency in The Indian Paradigm: A Suggestive Model

Anomitra Debnath and Trikansh Kher 43

Taxing the E-Commerce Transaction – A Long Road to Go

Muhammed Yasil 65

Internet Humour and Crime: A Struggle between Freedom and Offence

Apurv Shaurya 77

Artificial Intelligence as the New Creator – Changing Dimensions in Copyright Law

Narayani Anand 103

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Necessity may be the mother of invention, but technology is its midwife. The Supreme Court of India’s use of videoconferencing, to take up urgent matters while regular hearings stand suspended in all courts during the lockdown period, has the potential to accelerate the pace at which technology could be adopted by the judiciary at all levels.

India, with its large population and multiple problems such as judicial delays, pendency and lack of access to the justice system, is uniquely positioned to spearhead the adoption of technology in decongesting its courts, physically as well as in terms of case load.

At a time when social distancing is being emphasised as the only way to slow down the spread of COVID-19, the spectre of crowded court premises continues to haunt litigants, lawyers and Judges alike. This is an apt moment to partially explore, experiment and adopt the viability of electronic courts.

The Supreme Court Bench on 6-4-2020 [1]  comprising of S.A. Bobde, C.J., D.Y. Chandrachud and L. Nageshwara Rao, JJ.  passed directions in a suo motu case pertaining to issuing of guidelines for the functioning of courts via videoconferencing during the COVID-19 lockdown and further stated the need for applying tech-friendly and viable options, lasting the tenure of the lockdown and for the future.

e-Courts to e-Litigation: Taking a cue from ODR

The e-Courts Project [2] was an early step. It laid the groundwork in terms of networking of courts, digitisation of records and provision of information to litigants and lawyers. In fact, the Objectives Accomplishment Report of Phase II of the           e-Courts Project [3] reveals that the goal of setting up videoconferencing facilities for all the courts with jails has already been achieved.  However, while the e-Courts Project makes a good beginning with case information systems, the need is to move towards comprehensive dispute resolution process, with a blend of permanent benches of electronic courts and the physical courts.

World over, the experimentation has already commenced with what is more popularly known as the Online Dispute Resolution (‘ODR’). The ODR system, which includes e-negotiation, e-mediation and e-arbitration techniques, goes a step farther than the ADR system. ODR is mainly used in the resolution of cross-border electronic commerce disputes. However, ODR techniques can also be used in the resolution of traditional cross-border commercial disputes, if the parties agree in their contract to settle any dispute that may arise through one of the ODR techniques, particularly online arbitration. E-arbitration is mainly used for the resolution of Business to Business (‘B2B’) cross-border e-commerce disputes, and partially used for the resolution of traditional cross-border commercial disputes.

National laws regulating arbitration in many civil law countries have broadened the form requirement of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 [4] (‘the New York Convention’). These include Germany, France, Austria, Slovenia, Greece, The Netherlands, Ukraine, and Switzerland. Under the laws of these countries, the form requirement includes electronic communications such as e-mail communications.

Types of Cases

Incremental steps, and not a giant leap will take the system to the desired end i.e. a situation where most types of cases can be litigated online stipulating a pecuniary jurisdiction. This is a situation where documents and written submissions may be filed digitally while oral arguments and witness examination may be carried out remotely via video conferencing, with the need for physical court visits to be maintained on matters of importance.

E-commerce transactions and relationships generate disputes, and this has translated into an unprecedented “growth industry” of disputes. In recent decades, global companies have handled disputes involving domain names which have been resolved through an online arbitration process. India has the potential of a larger growth industry of disputes in the 2020s because the new technologies have made possible huge numbers of transactions and relationships across the board.

For this, the low hanging fruits to be plucked are those cases which are document heavy. Civil cases and commercial dispute resolution offer an ideal starting point.

Hearings in court would take place only when necessary and proportionate. It would be useful eventually to have a blend of e-court rooms and the physical courts to make progress and deliver justice to all sections of the society.  No doubt there would be teething problems initially like everything else, but in the long term there lies a great opportunity and solution.

Videoconferencing also offers a secure and convenient way of obtaining evidence from vulnerable or intimidated witnesses. India is not known for witness protection programmes and effective whistleblower protection. There is an immense scope to scale up videoconferencing in cases involving vulnerable witnesses.

So far, so good

A beginning has already been made. Several High Courts in India have issued detailed guidelines on the use of videoconferencing.

The Videoconferencing Guidelines issued by the Himachal Pradesh High Court[5] note that “Videoconferencing facilities can be used in matters including remands, bail applications and in civil and criminal trials, where a witness is located intra-State, inter-State or overseas.

The Videoconferencing Guidelines issued by the High Court of Delhi[6] state that “Videoconferencing facilities provide courts in Delhi with the capacity to receive evidence and submissions from witnesses or persons involved in court proceedings in circumstances where it would be expensive, inconvenient or otherwise not desirable for a person to attend a court in person. An overriding factor is that the use of videoconferencing in any particular case must be consistent with furthering the interests of justice and should cause minimal disadvantage to the parties. However, it is for the court to decide whether evidence should be recorded by videoconferencing.

Videoconferencing has been internationally recognised as a useful tool for obtaining witness testimony and expert evidence in cross-border as well as domestic cases. This could be an opportune time to explore the opportunity of bringing the mainstream litigation and regularise appearances and arguments by lawyers via videoconferencing. No doubt, an expert committee would need to be constituted to examine the feasibility. Needless to say, this will have significant time and cost benefits for all parties involved.

Role of the Private Sector

There is a big opportunity for private enterprises to assist in this process. A Public Private Partnership (PPP) Model suggests itself. This model was effectively used to revamp the Passport Issuance System in India, where TCS established Passport Seva Kendras in multiple cities in India. On similar lines, eLitigation nodal centres may have to be established at the panchayat level and district level to facilitate filing, appearance and related activities.

Increasing Access to Justice

One criticism of the Indian judicial system has been that litigation is only for the rich. The Supreme Court being located in New Delhi, a poor litigant based in a remote corner of India may be disincentivised to avail of the appellate process in even the High Court of a large State, let alone the Supreme Court. In fact, the idea of a National Court of Appeals, with Benches in various parts of India was mooted to address this issue, alongside the equally important issue of relieving the Supreme Court of the burden of dealing with those cases which do not involve an interpretation of the Constitution.

By introducing, in a phased manner, filing and appearance via videoconferencing at all levels of the judicial system, from trial courts to the Supreme Court, as also in various tribunals, the costs associated with physical distance from a court may be greatly reduced. We need to move beyond e-filing and uploading of orders online, to making courts accessible, affordable and visits reduced, for lawyer and litigant alike. This would also provide opportunities for younger members of the Bar. A category of matters would also need to be identified and explored.

The Challenges

The process is not going to be easy. There are several issues to be addressed. Firstly, the requisite network infrastructure has to be put in place across the country. Issues of bandwidth have to be taken care of.

Secondly, the process has to be secured from outside interference of any sort. This has to be balanced with the need for public access to the proceedings, keeping in view the idea of open court. In fact, it is an opportunity to open up court proceedings to a far wider section of the interested public than the limited confines of a courtroom may allow.

Thirdly and most importantly, there will have to be a change in mindsets of litigants, lawyers, Judges and the public. A status quoist mindset will run the risk of overemphasising threats and weaknesses of e-litigation. There was a time in 2013 when lawyers expressed strong reservations against e-causelists[7], citing lack of computer literacy. A change in attitude may be brought about by Bar Associations as well as legal aid clinics, which can spread the message among lawyers and the public respectively. Legal education curriculum may be suitably moulded to ensure that law students graduating in the new decade are equipped for a legal profession that sees increasing use of e-filing and videoconferencing.

Judicial academies too, have a huge role to play in equipping newly appointed Magistrates of the lower judiciary with the requisite skills. The judiciary would need to adapt to the changes which COVID-19 is going to bring into the society with greater speed and flexibility rather a conservative approach.

Conclusion

Even the biggest technological advances will not be effective without addressing the fundamental issues that plague the judicial system. Filling up of vacancies in all the courts as well as increasing the sanctioned strength of Judges is essential. India presently has 20 Judges for every 1 million citizens. The Law Commission of India in its 120th Report[8], suggested that there should be at least 50 Judges per 1 million citizens. The good news is that a technology enabled judiciary will require less brick and mortar infrastructure for expansion.

COVID-19 is presently a grave threat to the human race. It will force the society, governments and countries to change the ways in which work as well as leisure is undertaken. The silver lining is that adopting technology for dispute resolution in an online format, will lead to significant saving in cost and time for parties.


*Kirit Javali, (Barrister) Advocate Supreme Court, Partner at Jafa & Javali, Advocates, New Delhi.

**Vivek Prasad (final year student of law) Campus Law Centre, University of Delhi.

[1]. In re, Guidelines for Court functioning through videoconferencing during Covid-19 pandemic, 2020 SCC OnLine SC 355.

[2]. eCourts Project, https://ecourts.gov.in/ecourts_home/static/about-us.php.

[3]. Ibid.

[4]. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, https://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf

[5]. Videoconferencing Guidelines issued by the High Court of Himachal Pradesh, https://hphighcourt.nic.in/pdf/VC%20_Guidelines_HP_HC.pdf

[6]. Videoconferencing Guidelines issued by the High Court of Delhi, http://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_CQ84SWB5.PDF

[7]. The Hindu, ‘Can we think of e-courts if lawyers aren’t ready for even e-cause list?’ dt. 6-4-2013, https://www.thehindu.com/news/national/karnataka/can-we-think-of-ecourts-if-lawyers-arent-ready-for-even-ecause-list/article4585515.ece

[8]. Law Commission of India, 120th Report on Manpower Planning in Judiciary: A Blueprint (July, 1987).


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Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Vijay Bishnoi J., while allowing to take the voice sample of the accused pronounced that “when the criminals are using the modern technologies to commit the crime, it is not justified to restrain the police or investigating agency to counter it”.

The accused in the present case had indiscriminately fired gunshots at the residence of two persons and for the same reason, an FIR was registered by the victims. It was also noted that immediately after the filing of the FIR victims had received phone calls pertaining to life threats. In the course of the investigation, police had arrested two persons and for that purpose, an identification test was called for, but the victim again received calls from Italy through Voice over Internet Protocol (VOIP).

On arrest of the accused person, police felt that the information given on the part of the respondent may not be admissible and for that reason the police authorities had filed an application before the Additional Chief Magistrate to give directions to the respondent for submission of his voice sample which was rejected on the basis of ‘no consent” of the respondent. Courts below had rejected the application of the respondent for the collection of the voice sample.

The Hon’ble High Court, on analysing the contentions  placed in reference to the issue for recording of the voice sample of the accused, explained its stance by relying on the Supreme Court judgment of  Ritesh Sinha v. State of U.P., (2013) 2 SCC 357, in which it was well settled that if an accused person is compelled to give his voice sample it is no violation of his rights under Article 20(3) of the Constitution of India and the law is silent on the same. Therefore, the Court by explaining the various aspects of this issue and allowing the criminal misc. petition stated that the police cannot be restrained from taking voice sample of respondent for establishing his involvement in the crime. [State of Rajasthan v. Vikramjeet Singh, 2018 SCC OnLine Raj 1343, dated 23-05-2018]