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E-Commerce In India: The Urgent Need For A Better Legal And Regulatory Framework

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What Is E-commerce?

Any form of business transaction that is done online or virtually through the internet comes under e-commerce. The most common example of e-commerce can be online shopping (shopping from Amazon, Myntra, and Shein, etc). It can also entail other types of activities such as online auctions, payment gateways, online ticketing, and internet banking.

There has been a rapid increase in the way people are approaching e-commerce apps. Mobile commerce, or m-Commerce, is a rapidly growing new avenue of e-Commerce that’s mostly driven by the expanding market and influence of smartphones and millennials’ comfort with shopping online. In 2018, the m-Commerce sector enjoyed a 39.1% increase in sales compared to the previous year.

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What Are The Various E-Commerce Laws And Regulations?

  • Information Technology Act, 2000

Information Technology Act, 2000 was the first enacted law by the government of India on e-commerce. The major purpose of this enactment was to give effect to the UNCITRAL Model Law on Electronic Commerce, 1996. The General Assembly of the United Nations had adopted a resolution on January 30, 1997, commending the Model Law on Electronic Commerce for favourable consideration by the Member States.

The main aim of this Act was to provide legal recognition to the transactions that were carried out by the means of the internet and there was an exchange of electronic data by electronic means of communication (e-commerce). There are many provisions for legal recognition of the records and data that are available online. It also has digital signature rules for the attribution of e-records. The Act establishes a regulatory framework and it also lays down certain punishment for cyber crimes and offences.

Most of the provisions are related to the Regulation of Certification Authorities i.e. appointment of a Controller of CAs, the grant of licenses to CAs, recognition of foreign CAs, etc. There are offences related to cyber crimes such as hacking, damage to computer source code, publishing of information which is obscene in electronic form, breach of confidentiality and privacy, and fraudulent grant and use of digital signatures punishable.

There had been an increased number of crimes which were done through internet and the electronic media was misused by many, which is why there was a dire need to come up with cybersecurity laws so that electronic medium can also be used keeping in mind all safety factors and privacy concerns.

cyber crime against women amid lockdown
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  • Information Technology (Amendment) Act, 2008

The Information Technology (Amendment) Act, 2008 was also incorporated to give an implementation of the UNCITRAL Model Law on Electronic Signatures, 2001 in India. The previous IT Act of 2000 was amended to make it more technology-neutral and recognized electronic signatures over-restrictive digital signatures. There were new changes such as the introduction of the concept of e signature, amendment of the definition of intermediary, etc.

To control the problem of privacy, the states assumed specific powers to control the website and to also keep a check on the misuse leading to tax evasions. This Act recognized the legal validity and also the enforceability of the digital signatures and electronic record first time India. The aim behind it was to have a secure pathway for the digital records and electronic signatures which had become an important concern since the use of electronic mediums had boosted top a great extent.

Issues Regarding E-Commerce

5 Ways You Can Improve Your eCommerce Store's Security To Get Ahead Of Your Competition
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Whenever there is a contractual relationship between two parties, there are high possibilities of disputes to take place. These disputes can be on contract terms, regulations, conditions, and negotiations. Issues related to e-commerce are copyright issues, data protection issues, and completions issues as well. Intellectual Property Rights is one of the foremost considerations for any company that is entering into an e-contract or in e-business which includes e-commerce transactions. Internet is very vast and has minimum regulations regarding protection and safety thus;

Firstly, protection of IPR (Intellectual Property Rights) is a major concern in e-business and a challenge too. Protecting IPRs in the physical world is well defined and regulated but, when it comes to the field of e-commerce, the transactions are not that. Similar domain names registered by two people or identical domain names not registered are few problems that are commonly faced. There is no specific Indian Law on domain names except the judicial pronouncements, which is not properly defined and protected.

Secondly, whenever there is an e-commerce transaction, it is very difficult to complete that online transaction without collecting some form of personal information regarding the user which is also concerned with their privacy. The IT Act deals with this concept of privacy in a very limited manner such as it only provides that privacy of a person is deemed to be violated when images of her private body areas are captured, published or transmitted without her consent in the circumstances where she would have had a reasonable expectation of privacy and a punishment of imprisonment of up to 3 years and/or fine of up to INR 2 lakhs.

Personal information relates to the identity of personal and sensitive personal data includes information on password, bank account or credit card or debit card or other payment instrument detail, etc. There is only monitory compensation. Therefore, there are frequent concerns regarding privacy.

Lastly, All the e-contracts which are entered online are to be governed by the Indian Contract Act, 1887. Acceptance of the terms and conditions is the foremost requirement for any e-contract to be valid. There are ‘click-wrap’ contracts i.e. contract created by clicking on an ‘I accept’ tab. ‘Browse-wrap’ is also a recognized form of implied contract which is created by mere browsing of a website.

All principles of contract law implied to e-commerce transactions. Some issues arise out of an e-commerce contract that can make the contract void-ab-initio. Certain provisions under the Indian Contract Act deal with unconscionable contracts such as when the consideration involved in the contract is opposed to public policy. Therefore, Indian laws speak or guide very less on some serious issues related to the validity of e-contracts.

Through the years, there has been rapid growth in the e-commerce sector which also created the need for protecting accountability and creating an effective regulatory mechanism that will have to strengthen the e-commerce sector and legal infrastructure as well. There have been frequent concerns raised regarding weak cybersecurity laws in India and the absence of the regulatory framework is why the e-commerce industry faces so many challenges instead of enjoying a consumer-friendly and business-confident e-commerce environment in India.

The government should develop a legal framework for both the domestic and international trade in India to flourish and to prevent fraud, consumer protection issues, privacy issues, intellectual property rights issues, etc. This can be a measured step to guide entrepreneurs, consumers, and even the court in a manner that this fast-emerging e-business trend can be run effectively.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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