In a significant development, the Delhi High Court has directed the Central Government to issue a notification notifying the electronic signature that can be used to authenticate electronic records, including e-mails. The Information Technology Amendment Act, 2008 (IT Act 2008) brought the concept of electronic signature in force but till now the Central Government has not issued any notification and the concept of electronic signature is still not implemented.
As on date the only method of authentication of electronic records in India is the use of digital signature. However, not everybody owns a digital signature. Similarly, the Indian Government has prescribed different digital signatures for different purposes and there is no common digital signature that can be used at all places and for all purposes.
There is a confusion regarding the validity of electronic legal notices and processes in India through e-mails and this litigation is a significant development in this regard. The Delhi High Court is analysing e-mail policy of India and complaint mechanism to Facebook in the present litigation.
The core issues before the Delhi High Court is whether government documents can be shared through private e-mail providers like Google, Yahoo, etc and how to file a complaint with websites like Facebook using electronic signature. To start with India must ban Gmail and Yahoo e-mails for official communications and sharing of official documents. A petition is also pending before the Supreme Court of India vis-à-vis Public Records Act, 1993.
There is a direct relationship between the Public Records Act, 1993 and IT Act 2000. Perry4Law has released a research report in this regard that can be used by Indian Government while formulating the e-mail policy and electronic signature provisions. Similarly, there is a relationship between Right to Information Act, 2005 and Public Records Act 1993.
As per TOI, the Delhi High Court has asked the Centre to issue a notification on the electronic signature required by an individual to send a complaint to Facebook through e-mail. A Division Bench of Justice BD Ahmed and Justice Vibhu Bakhru told the Central Government’s counsel to seek instructions in this regard. The direction came after the petitioner alleged that Facebook was adopting a cumbersome procedure for users to send a complaint to its grievance officer. It also asked the Government to ensure that other social networking sites appointed a grievance officer.
The Bench observed that the provision with regard to electronic signature under Information Technology Act is, till date, blank. The Centre’s advocate was asked to seek clarification when the Central Government is going to bring its notification. The Court also directed the Centre to finalise, within a month, its e-mail policy for official communication by government officers in consonance with the Public Records Act in order to bar transfer of data to a server outside the country. Indian Government may force companies like Facebook, Google, etc to establish servers in India by allowing them to commercially operate in India only once they comply with Indian laws.
This is a much needed step in the present circumstances as per cyber law experts of India as companies like Google, Facebook, etc continue to violate Indian Laws. Similarly, the Internet telephony and VOIP service providers must establish servers in India very soon.
However, India must ensure techno legal measures to regulate Indian cyberspace in the long run as knee jerk reactions and short term solutions would not be very helpful. Presently Indian Government is taking companies like Google lightly and Google is openly violating various laws of India. Despite Google openly flouting the Laws of India, Indian Government has failed to take any action against it in this regard. If this continues, there would be stage where Indian laws would become irrelevant for foreign and Indian technology companies.