Legal Issues in E Commerce

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LEGAL ISSUES IN eCOMMERCE

Nishith Desai Associates

93-B MITTAL COURT, NARIMAN POINT MUMBAI 400 021. INDIA

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nda@nishithdesai.com www.nishithdesai.com

This paper is a copyright of Nishith Desai Associates. No reader should act on the basis of any statement contained herein without seeking professional advice. The authors and the firm expressly disclaim all and any liability to any person who has read this paper, or otherwise, in respect of anything, and of consequences of anything done, or omitted to be done by any such person in reliance upon the contents of this paper.

Nishith Desai Associates ©

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LEGAL ISSUES IN E-COMMERCE

Aashit Shah and Parveen Nagree Nishith Desai Associates

Nishith Desai Associates (“NDA”) is a research based international law firm based in Mumbai and Palo Alto, Silicon Valley, specializing in information technology, e-commerce, telecommunications, media and entertainment laws, international financial and tax laws and corporate and securities laws. It has acted as strategic and legal counsel to premier corporates in their Internet forays, including IL&FS, GE Capital, Jasubhai Group, software majors such as i2 Technologies and Mahindra British Telecom and communication companies such as Space Systems/Loral, New Skies Satellite, Flag and WorldTel. Apart from structuring and acting for a large number of private equity funds in India, NDA has been involved in American Depositary Receipt (ADR) offerings of Indian companies, representing Wipro, Rediff.com and Silverline Technologies and acting as underwriter's counsel in Infosys Technologies and Satyam's ADR offerings. NDA was involved in the first cross-border stock swap merger from India - BFL's acquisition of MphasiS besides Silverline's acquisition of Seranova Inc in an ADR stock swap deal. It had prepared a white paper for the Global Information Infrastructure Commission titled “Legal, Tax and Policy Reforms to promote e-commerce in India”. It has also advised the Government of India and Internet Service Providers Association on e-commerce issues in the WTO regime. It represented NASSCOM at a Joint WTO-World Bank Symposium on Movement of Natural Persons held in Geneva in April 2002. NDA was recently as the “Indian Law Firm of the Year 2000” and “Asian Law Firm of the Year 2001 (Pro Bono)” by the International Financial Law Review, a Euromoney Publication. It has also been ranked as having a leading practice in Private Equity, Media and Entertainment and IT and telecommunications law for 2001-02 by the Global Counsel 3000.

Website: www.nishithdesai.com ; Email: nda@nishithdesai.com

Nishith Desai Associates ©

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LEGAL ISSUES IN E-COMMERCE
Aashit Shah and Parveen Nagree * Nishith Desai Associates
TABLE OF CONTENTS

1. 2.

Introduction Core Issues a. b. c. d. e. f. g. h. i. Contracts Security Authentication Privacy and Data Protection Intellectual Property Rights Domain Names Jurisdiction Liability Taxation

3 4 4 5 5 6 8 10 10 12 12 14 14 16 16 18 18 20 20 22 24

3.

Other Legal Issues a. b. c. d. e. Content Regulation Advertisement Electronic Payment Issues Foreign Direct Investment Corporate Structure and Funding

4.

Case Studies a. b. Case Study 1: Banking Industry Case Study 2: Webcasting

5.

Conclusion

* The authors have prepared this paper under the guidance of Annapoorna Ogoti and Vaibhav Parikh of Nishith Desai Associates.

Website: www.nishithdesai.com ; Email: nda@nishithdesai.com

Nishith Desai Associates ©

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I.

INTRODUCTION

Simplistically speaking, e-commerce is the mode of conducting business through electronic means. However, there exists no standard definition for the term and different organisations have defined it diversely. E-commerce is understood to mean the production, distribution, marketing, sale or...
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