by Aggarwals Associates | Mar 24, 2021 | General
An appeal consists of a process where superior court reconsiders the decision of inferior court. The consideration may be made on the question of fact as well as question of law. The court while exercising its appellate jurisdiction can confirm, reverse, modify or remand the matter to lower court for fresh decision in terms of its direction. However, the term ‘Appeal’ is not defined under the Civil law. Appeal is a creature of statute and right to appeal is a substantive right. It is notable here that suo moto appeal is not possible.
Meaning of appeal:
The Black’s Law Dictionary defines appeal as “the complaint to a superior court for an injustice done or error committed by an inferior one, whose judgement or decision the court above is called upon to correct or reverse. It is the removal of a cause from a court of inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and retrial.”
Who can file an appeal?
This is a first and foremost question that stuck in mind of litigants that who is authorized to file an appeal. Here are the persons who can file appeal before the court of law:-
- Any party to the suit, who is adversely affected by the decree or the transferee of interest of such party has been adversely affected by the decree, provided his name is entered on the record of the suit.
- If such party is dead who get affected by the decree then its legal representatives can file an appeal by virtue of Section 146 CPC.
- An auction purchaser may file appeal against an order in execution of a decree to set aside the sale on ground of fraud.
- No other unless he/she is a party to a suit can file appeal.
Howbeit, if any person is prejudicially affected by the decree or order, where he/she was not a party to the suit may prefer an appeal via special leave of the appellate court.
Who cannot file an appeal?
As per law if any person waives his/her right to file an appeal against decree or order cannot file it at a later stage. Apart from this, if any party ratifies any decision of the court by accepting and acknowledging the provisions under it, then may be estopped that party from appealing that judgement in a higher court.
What are the various forms of appeal under civil law?
The broad categorization of appeal divides it into two parts i.e. first appeal and second appeal. The first appeal is described under Section 96 of the CPC and it provides that an appeal shall lie from a decree passed by any Court exercising original jurisdiction to the authorized appellate courts, except where expressly prohibited.
The provision of second appeal is provided under Section 100 of CPC which states that an appeal shall lie to the High Court from a decree passed in the first appeal by a subordinate court, excepting the provisions speaking to the contrary. The scope of exercise of jurisdiction under this Section is limited to a substantial question of law framed at the time of admission of appeal.
Moreover, there are sub-categories under appeals which are mentioned below:-
- Appeal from original decree.
- Appeal from order.
- Appeal from appellate decree/Second appeal to High Court.
- Appeal to Supreme Court.
Appeal from original decree:
Section 96 of CPC deals with appeals from original decree. Usually, first appeal lies from every original decree passed by any court. It is marked here that appeal may lie from an ex-parte decree, but appeal shall not lie from a decree passed with consent of both parties.
Appeal from order:
Sections 104 to 108 and Order 43 of the CPC talks about appeals against orders. According to these provisions, certain order are appealable other whereas, appeal could not be lie against some orders. Order can be defined as “the formal expression of any decision of a civil court which is not a decree.” An appeal from order can be filed within ninety days before the concerned High Court and within thirty days from the date of order, before another court.
Section 106 provides that appeals against orders in cases in which they are appealable shall be brought before the court to where an appeal would lie from the original suit. Howbeit, Section 105 states that every whether appealable or not, except an order of remand can be attacked in an appeal from the final decree on the ground that there is an error, defect or irregularity in the order and that such error, defect or irregularity affects the decision of the case.
Appeal from appellate decree:
Section 100 of the CPC provides for second appeal to High Court against decree passed by appellate court. The procedural right of the second decree is provided to either of the parties to a civil suit who has been adversely affected by the decree passed by a civil court. It is notable here that general rule is that second appeal lies to the High Court only if the court is satisfied that it involves a substantial question of law.
In Mahindra & Mahindra Ltd. v. Union of India & Anr. 1979 AIR 798, the Apex Court observed that under the proviso, the Court be ‘satisfied’ that the case involves a substantial question of law and not a mere question of law. The reason for permitting the substantial question of law to be raised should be recorded by the Court.
However, as per Section 103, the High Court has power to determine the issues of fact if there is sufficient evidence on record.
Provisions related to appeal to Supreme Court in civil case:
Primarily, the Indian Constitution under Article 133 provides provision to file an appeal to the Apex Court. Further, Section 109 of the CPC provides the conditions under which an appeal could be filed before the Supreme Court, these are enumerated below:-
- An appeal can be filed from a judgement, decree, or final order of the High Court.
- A case which involves the substantial question of law of general significance.
- Where High Court opines it to be fit for the Supreme Court to deal with such a question.
Can we file an appeal in small cases?
No, Section 96 (4) of the CPC put a restriction on filing appeal in cases where the value of subject matter of the original suit does not exceed Rs. 10,000/- except where any point of law exists. The idea behind enacting this provision is to reduce the number of appeals in petty cases.
What is difference between civil suit and appeal?
The basic distinction lies between two is that suit is filed for cause and issues are disputed on questions of law and facts as well whereas, appeal only reviews and corrects the proceedings in case already constituted but does not create a issue. The another difference is that suit is filed before the lower court in its respective hierarchy for trial on the flip side, an appeal is filed before an Appellate Court for the purpose of reviewing the decision of the inferior court.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar Mohali
by Aggarwals Associates | Mar 15, 2021 | General
It is undeniable to say that advertising sector is rapidly growing which needs a comprehensive and well-defined regulatory system to ensure that the interests of all the relevant stakeholders are represented and cared for. Advertisements have long played a crucial role in shaping up the business and their importance has risen with the advent of digital era.
Due to increased competition in global market, the consumers have become more vulnerable to the dangers of predatory and misleading advertisements tactics than ever before. On the flipside, with respect to businesses, monetary investments into advertising as well associates risks pertaining to goodwill have increased remarkably over the years.
There are several laws in India including Consumer Protection Act, Cable Television Networks (Regulations) Act and so which deals to put a cap on misleading advertising. Apart from this, there is regulatory body namely Advertising Standards Council of India (ASCI) which is committed to promote advertising and to increase public confidence in advertisement.
What is the structure and main functions of ASCI?
ASCI is voluntary self-regulatory body which came into existence in the year of 1985. The Council consists of Board of Governor and Consumer Complaints Council. The Board of Governors comprises four members each member from the fields of Advertisers, Advertising Agencies, Media and related like outdoor agencies. The objectives of the body include the follows:-
- To make sure the genuineness and honesty of representations as well as claims made by advertisements.
- To ensure that advertisements are not offensive.
- Protection against biased use of advertising for the promotion of products regarded as hazardous to society or to individuals.
- To bring fairness in competition.
Let’s shine some light on the important pieces of legislation dealing with advertisements in India:-
Consumer Protection Act, 1986: The Act provides the definition of term “unfair trade practices” under Section 2 (r), wherein it covers false and misleading representations and facts under the purview of unfair practices allowing consumers to file complaints against such representations being made by any trader or service providers. Moreover, while enumerating the objects of Consumer Protection Council, requires them to ensure that, among other things, they protect the consumer’s right to be informed so as to protect the consumer against trade practices. Furthermore, the Act also provides District Forums the power to grant punitive damages to discontinue any unfair trade practices.
Cable Television Network (Regulations) Act:- The Act prohibits any person from transmitting or re-transmitting any programme through a cable service unless the same is in conformity with the prescribed advertisement personnel, the power to prohibit the transmission or re-transmission of any advertisements which are in violation of its provisions or if the same are likely to promote, disharmony, hatred or ill-will between different religious, racial, linguistic or regional groups on grounds of religion, race, language, caste or community or any other ground, or which likely to disturb public tranquility.
Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003: – The Act prohibits the direct or indirect advertisement of cigarettes or any other tobacco products in all forms of audio, visual, and print media. If any person is found to be in contravention of such prohibition then he/she will be liable for punishment with imprisonment upto five years or a fine upto five thousand rupees.
Besides this, the Act also provides authorized personnel, the power of search, seizure, forfeiture and confiscation in respect of any advertisement of cigarettes or any other tobacco products.
Drug and Magic Remedies Act, 1954 and Drugs and Cosmetics Act, 1940:- The said Act is enacted to regulate the advertisements of drugs in certain cases and to prohibit the advertising for certain purposes of remedies alleged to have magic qualities and for matters connected with Section 29 of the Drugs and Cosmetics Act, 1940. Additionally, the Act imposes a penalty upon if anyone uses any reports of a test or analysis made by the Central Drugs Laboratory or by a Government Analyst, or any extract from such report for the purpose of advertising any drug.
Conclusion:-
The present system of regulation is not sufficient to effectively regulate the advertising sector owing to ever growing influence of advertisement on society tremendous changes in the industry. Old issues of advertising such as misleading prices, deceptive representations, and labeling etc. are become more vulnerable with the contemporary era’s trends including sponsored movie shots and paid posts by superstars on their social media handles. Therefore, uniform statutory framework regulating advertisements is needed.
Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Mar 12, 2021 | General
An effective contract reflects obligations of the parties with necessary safeguards and efficacious remedies along with intention of the parties getting into legal relationship. In modern era, world is economized by trade, domestic and international, and this trade is facilitated through contracts entered into by the parties. A domestic contract is one where both the parties operate their business from one and same country, whereas an international contract is one where both the parties operate their business from two different countries.
Contract drafting is a step by step process of adding specific clauses, terms and conditions that are expressed as per the needs and wants of the parties to the contract. It is germane while making draft of the contract to consider diverse issues including the subject of the contract, amount of consideration, conditions, indemnity, mechanism for dispute resolution etc.
What are the forms of contracts?
Contracts are of two types i.e. oral and written. Oral contracts are a system of understanding between the parties whereby they agree to certain terms that are orally made and to act on such term whereas, written contracts are contracts wherein the parties to the contract express and record each and every term of the agreement between them. Both types of contracts are considered as valid in numerous countries.
However, it is always difficult to enforce the oral contracts because of its nature. It is always recommended to enter into a written contract to eliminate any kind of ambiguity that may arise in the future. The terms that are agreed upon are recorded in a documented form and much easier to rely upon in practically as the relationship between and the rights and obligations of the parties to the contract are jotted down in the contract itself.
It is marked here that even if contract is made in written form but it cannot be considered reliable until and unless it is registered.
Is it mandatory to register a contract in India?
The laws in many nations do not expressly state that all the contracts must be registered in order to make them legally enforceable. Howbeit, when a party become a victim of some default made by the other party, it becomes hard for the victim to prove the legality, binding effect and validity of the contract. To exemplify, the Indian Contract Act, 1872 does not talk about registration or stamping of any contract.
Additionally, the Registration Act, 1908 enumerates the documents which must be compulsorily registered for enforceability before the court of law. These documents include the instruments related to immovable property, instruments of movable property amounting to Rs. 100 or above and so on. It notable here that term instruments connote the sale deed, lease deed, gift deed etc.
Besides this, Indian Stamp Act also expressly mentioned that documents such as Power of Attorney except in case of immovable property, development agreement etc. shall be made on a stamp paper but need not be compulsorily registered for legal enforcement.
These provisions create confusion as to what kinds of contracts are required to be registered or not for sustainability in the eyes of law. Thus, it is advised that parties must register their contracts if they want to avoid any hassles in whatever form in the long run.
What are the basic terms and clauses?
Here is the list of rudimentary terms and clauses of any contract.
Subject matter: – The first and foremost thing while drafting a contract is to determine the subject matter as it will define the nature as well as legal enforceability of the contract.
Definition clause: – It is vital part of every contract as it contains definition of all the words used throughout the contract. Although some words may be general meaning but these words could be defined specifically for the purpose of the contract.
Tenure of the contract: – Being a prominent factor in the contract it implies the time period during which the relationship between the parties will be governed by the terms and conditions of contract. Once the time period expires, the contract automatically dissolves. In various cases, the term of the contract also depends on achieving certain goal for which the contract has been entered upon.
Renewal clause: – This clause is required to be a part of the contract where nature of the work and terms laid in the contract need not to be changed for long period. Renewal clause can be inserted to ensure continual binding effect of the contract without incurring the expenses of drafting and registering different contracts time and again.
Right and duties of the parties: – Every contract must specify the right and duties of the parties in respect to each other. This clause is considered as crux of the contract and violation of this clause often leads to arise of dispute between the parties. Despite this, all the rights and duties must be mentioned in detail to avoid any ambiguity.
Consideration amount: – It states the amount of consideration that one party must have to pay to other party for the performance as agreed between them under the contract. Such consideration must be legal in nature and instrument through which the payment is to paid must be recognized by law too.
Dispute settlement and jurisdiction: – This clause defines the mode of dispute resolution or what legal recourse parties could take in the event of any dispute. The dispute resolution mechanism like arbitration, mediation etc. are considered to be integral part of any contract. The jurisdiction clause defines the place where such dispute may be resolved between the contracting parties.
Termination of the contract: – It generally defines the circumstances under which the contract shall stand terminated. Along with that this clause implies the rights and liabilities that the contracting parties will be entitled to when the contract stands cancelled.
Force majeure: – This clause depicts the unforeseeable and unpredictable circumstances which may stop one party from performing its part, thereby leaving the contract unfulfilled. It talks about the role of contracting parties when such a situation may arise during the tenure of the contract.
Conclusion:
To recapitulate, it would be appropriate to hold the notion that violation of contracts covers the large area of litigation. A carefully drafted contract not only saves the time, effort and costs but even bestowed fruitful results in the growth of any corporation. Further, any dispute between the parties can be dealt efficiently if the well-defined clauses are enshrined as a part of the contract.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Mar 11, 2021 | General
“Respect for inventors is the key for success of a patent system”
-Kalyan C. Kankanala
When creator provides an exclusive right over the use of his/her creations for a certain time period, this is called an Intellectual property rights. The term Intellectual property throws light on the idea that this subject matter is the product of the mind or intellect, and that Intellectual property rights are protected under the law in the same manner as any other form of property. The acquisition, registration or enforcement of Intellectual property rights vary from jurisdiction to jurisdiction.
Categories of Intellectual Property: For ease of understanding Intellectual property is divided into two categories:
- Industrial Property
- Copyright
Industrial Property: This includes inventions, trademarks, industrial designs and geographical indications of source.
Copyright: The literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, painting, photograph and sculptures and architectural designs are included under the copyrights.
Rights Protected under Intellectual Property:
- Patents
- Copyrights
- Trademarks
- Geographical indications
- Industrial design
- Trade secrets and confidential information
Patents:
Patents are exclusive rights granted for an invention which may be a product or a process as well. An owner of a patent has the sole right over his/her invention. This mean that invention cannot be commercially, made, used, distributed, imported or sold by others without the consent of patent owner. A patent protection is generally granted for twenty years from filling of application and after the expiry of this period of twenty years, the knowledge become part of public domain.
The Patent system in India is administered by the Patents Act, 1970 as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003, as amended by the Patents (Amendment) Rules, 2006. The system is administered under the superintendence of the Controller General of Patents, Designs, Trademarks and Geographical indications. The Office of the Controller General comes under the Department of Industrial Policy and promotion, Ministry of Commerce and Industry. There are four patent offices in India. The head office is located at Calcutta and other patent offices located at Delhi, Mumbai and Chennai.
Requirements under India law for patent protection:
- It must be new inventive product or process
- It must be capable of industrial application
- It should be non-obvious
Patents are the most important intellectual property right in areas like electronics, pharmaceutical, biotechnology and manufacturing business. The details of all the patents are publically disclosed. This public disclosure of the patents encourages further innovation and inventions.
In Bayer Corporation V. UOI & Ors. ( 22nd April, 2019), Delhi HC held that, export of a patented invention for experimental purposes is also covered under Section 107A of the Patents Act, 1970 and thus does not amount to patent infringement.
Copyrights:
Copyrights plays vital role in the areas like music, films, entertainment, software, and internet related businesses and publishing arts. Copyright is the set of exclusive rights granted to the author or creator of an original works, including the right to copy, distribute and adapt the work. Copyright lasts for a certain time period after the lapse of time the work is said to enter the public domain. Copyrights protect and reward the creativity by ensuring certain minimum safeguards of the rights of authors over their creations.
According to The Copyright Act, 1957, a copyright subsists in an original literacy, dramatic, musical or artistic work, cinematograph films and sound recordings. This means you can claim a copyright on a variety of your original works. Copyright will only protect expression of ideas and not the idea or concept itself. Facts, titles, phrases and forms cannot be copyrighted.
In Fermat Education V. M/s Sorting Hat Technologies Ltd. (13th August, 2018) Madras HC held that the fair use of the materials by a teacher or a pupil in the course of instruction cannot be pressed into service since the first defendant uploads materials for consideration. It was held that once consideration is paid for uploading materials, then it becomes a business venture and a responsibility is imposed on the defendants to ensure that they do not infringe the copyright of any another person. It was held that defendants cannot enjoy the fruits of infringed material prepared by the plaintiffs.
In B.N. Firos V. State of Kerala (27th March, 2018), SC held that upon reading the Copyright Act and the IT Act together, it can be observed that only those ‘computer systems’ should be considered as ‘protected system’ under the Information Technology Act, which qualify as ‘Government Works’ as per the Copyright Act. The Court rejected the Appellant developer’s claim of copyright of in the software created as a part of government project, holding that the Government is the first owner of the software in question, since the work was first published by a Government Body as per Section 2(k) of the Copyright Act which defines the ‘Government work’. Once this condition was satisfied, the Notification under Section 70 of the IT Act 2000 in Official Gazette was found to be lawful.
Trademarks:
The signs which distinguish one company from another are termed as Trademarks. A trademark is a visual symbol which may be a word signature, name, device, label, numerals or combination of colors used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking. The Trademarks Act, 1999 and The Trademarks Rules, 2002 govern the law relating to Trademarks in India.
Key Features of Trademarks:
- It must be distinctive
- It must be used in commerce
In Toyota Jidosha Kabushiki Kaisha V. M/s Prius Auto Industries Ltd. (Civil Appeal No. 5375-5377 of 2017) SC reiterated that IP rights are territorial not global. The Court refused to grant an injunction restraining the defendant from using its trademark Prius even Toyota was the prior user of the mark. It is reasoned that even though Toyota’s mark was well known outside India, Toyota failed to show that it enjoyed a reputation in the Indian market at the relevant point of time, when the defendant began using the mark in India.
In H&M Hennes & Mauritz AB & Anr V. HM Megabrands Pvt. Ltd & Ors. (31st May, 2018), The Delhi HC has secured the rights of a foreign company in their trade mark against the rights of an Indian Company by granting a permanent injunction in favour of plaintiff. The dispute arose when the plaintiff proprietor of the famous brand H&M came across the defendant’s mark HM and filed a suit seeking injunction to restrain the infringement of their trade mark.
In Bigtree Entertainment Pvt. Ltd. V. D. Sharma & Anr. (21st January, 2019) The Delhi HC refused to grant injunction in favour of the plaintiff. The plaintiff, Bigtree Entertainment, proprietor of the “BOOKMYSHOW” mark had filed a suit for trademark infringement, seeking restraint of use of mark “Book My Event” or prefix “Bookmy” by the defendants. The Court held that plaintiff’s mark “BOOKMYSHOW” has not attained exclusivity and that prefix “BOOKMY” is a common English term and its link with booking for shows, events, films etc. is obvious which makes it descriptive of the services in respect of which it is claimed for. It noted that the visual effects namely, font and colour schemes of the rival marks are different and therefore, it is unlikely that the customers would be confused by the said trade names or marks.
Geographical indications:
Geographical indications of goods are defined as that aspect of industrial property which refers to geographical indication referring to a country or to a place situated therein as being the country or place of origin of that product for instance Darjeeling tea, Swiss Watches, Solapur Chaddar etc. Geographical Indication of Goods (Regulation and Protection) Act, 1999 and The Geographical Indication of Goods (Regulation and Protection) Rules, 2002 deals with the registration and better protection of geographical indication relating to goods. If the quality or reputation of the product is due to the place of origin only then it is granted.
Industrial Designs:
According to the Designs Act, 2000, “design means only the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual mechanical or chemical, separate or combined, which is the finished article appeal to and are judged solely by the eye. A maximum time period for an industrial design is fifteen years.
Requirements for registration of design:
- It must be new or original
- Not disclosed to the public anywhere by publication in tangible form or by use or in any other way
- There must be significant difference from known designs or combination of known designs
- It must not contain any obscene elements
- It must not be contrary to public order or morality
In Cello Household Products V. M/s Modware India & Anr. (30th March, 2017), Bombay HC held that this particular bottle of the plaintiff has achieved a great deal of commercial renown, the plaintiff has successfully established reputation for the purpose of passing off. Due to the obvious similarity between the rival designs, the question is not whether it is confusing, but whether it is calculated to deceive because Passing off is an action in deceit; the deceit lies in the misrepresentation; and the misrepresentation must be as to source, i.e., to deceive the average consumer into believing the defendant’s product is the plaintiff’s.
It was held that defendant was attempting to deceive consumers into believing that its products came from the house of Cello i.e. plaintiff as there can be no possible explanation for defendant to adopt a shape, configuration, ornamentation and colour combination, so very nearly identical to that of plaintiff. The third element of passing off i.e. likelihood of damage was also deemed to have been fulfilled in the case. Further, it was held that since defendant’s product was almost identical to the plaintiff’s product, prima facie, plaintiff’s design was sufficiently original and that defendant’s product infringed upon it. Finally, prima facie, design infringement was concluded to have occurred
Trade secrets and confidential information:
A trade secret and confidential information is any information that has been intentionally treated as secret and is capable of commercial application with an economic interest. It provides competition advantage by protecting information which is not readily available with or discernible by the competitors. Agreements and internal policies protect the trade secrets and confidential information.
Non-disclosure agreements with employees and other stakeholders can ensure the non-disclosure of sensitive and confidential information with any third party. Manufacturing secrets, formulas, recipes, practices, patterns or complied information such as list of consumers can be protected as trade secrets.
Conclusion:
Intellectual property rights have became significantly conspicuous on the legal horizon of India both in terms of new statues and judicial pronouncements. Intellectual property rights has vital role in all sector and has became a crucial factor for investment decisions by many companies.
India is now TRIPS compliant. This is an international agreement governed by the World Trade Organization (WTO), which sets down minimum standards for many forms of intellectual property regulations as applied to the nationals of other WTO members. The well balanced system of intellectual property rights in India is helpful for foreign companies to protect their intellectual property in India.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Mar 10, 2021 | General
The general classification of data divided into categories one is public data and other is private data. Public data is accessible to all the public at large such as birth and death records whereas, private data is personal to individuals or organizations and cannot freely be disseminated by anyone without prior permission. Personal data usually refers to the information or data which relate to an individual who can be identified from that information or data whether collected by any Govt. or private organization or agency.
It is quite natural such private information might be at risk while in the hands of those organizations. Although India does not have any express legislation governing privacy or data protection but Information of Technology Act consists of some provisions concerning with the privacy policies. Indian Govt. has also notified the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.
Provisions under Indian Constitution:
Right to privacy is a fundamental right under Article 21 of the constitution of India. This was affirmed by the Hon’ble Supreme Court in its landmark judgement namely ‘Justice K.S Puttaswamy versus Union of India’ dated 24th August, 2017, wherein the right to privacy policy declared as an integral part of Part III of the Constitution of India.
Important Sections relating to personal data under IT Act:
Section 43 A: –This Section creates the liability for loss of any personal data on the body corporates who possess and control any personal information belongs to the individuals in negligent manner. The term body corporate involves all kind of organizations whether it is company or sole proprietorship. The body corporates are required to maintain reasonable security practices and procedures.
Section 72 A: – This section applies on the individuals and intermediaries who provide their services while having access to any material containing personal information of any person under legal contract. If such individual or intermediaries deliberately disclose such content of the person without consent then it amounts to an offence under this provision. Such an offence may attract the imprisonment for a term which may extend to 3 years or with fine extendable upto 5 lacs or with both.
It is marked here that IT rules established by the Govt. mandates every online service provider to publish their privacy policies on their website. The corporate bodies are also required to obtain consent of the individuals before disclosing their personal data unless it is required under any law.
Do the provisions of the IT Act apply to the entities outside India?
As per Section 75 of the IT Act the provisions of the IT Act shall apply to an offence or contravention committed outside India by any person of the act or conduct constituting an offence or contravention involves a computer, computer system or company network located in India.
What kind of data can be treated as sensitive personal data or information?
The IT rules prescribed the personal information which can be considered as sensitive personal data or information, which includes the following data:-
- Password
- Financial information.
- Health parameters which may includes physical and mental health conditions and medical records or history.
- Sexual orientation
- Biometric information
Are body corporates required to plan their privacy policy?
Yes, it is necessary for body corporates to maintain their privacy policies if they collect, receive, possess, store, deal or handle information of provider of information. The body corporate must publish the privacy policy for dealing or handling of personal information including sensitive personal data or information. Moreover, it has to be ensured that such information is available for view by such providers of information who have provided such information under lawful contract. Such policies are require to be published on website of body corporate or any person on its behalf and shall provide for clear and easily accessible statements of its practices and policies.
What must be included in the privacy policy?
The followings points are required to be a part of privacy policy of any corporate:-
- Type of personal or sensitive personal data or information collected.
- Purpose of collection and usage of such information.
- Disclosure of information including sensitive personal data or information.
- Reasonable security practices and procedures.
What are the provisions related to disclosure of information under the IT Act:
Sensitive personal data or information can be disclosed only with the prior permission from the provider of such information. The consent of the information provider may be skipped in the following cases:-
- Where disclosure of such information has been agreed to in the contract between the body corporate and provider of information.
- Where the disclosure is mandatory for compliance of a legal obligation.
Can information provider withdraw his/her consent for any collected information?
Yes, information provider has option to withdraw his/her consent which has been given earlier. Such withdrawal of consent can be intimated to the concerned body corporate in writing. However, body corporate can refuse to provide goods or services to such information provider who later on withdraws his/her consent for the information.
Conclusion:
Privacy is an emerging issue in any nation. As organizations collect greater amount of information from online as well about online users, and as the government continues to seek greater access and surveillance capabilities. India prioritizes privacy and puts in place strong safeguards to protect the privacy of both Indians as well as foreigners whose data resides temporarily or permanently in India.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
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