In the Go2nextjob.com case in New Delhi, reported some time back, two
of the directors of an ISP which stopped the web hosting services to a
client who had defaulted in the payment were arrested and accused of "Hacking".
An issue has come up for discussion now of the remedies available to
an ISP providing e-mail services in case of a non payment of charges.
One obvious remedy is to close the e-mail box so that future mails
are not received and they bounce back.
Second remedy is to close the e-mail box for access even to the account
holder so that the mails already in there or those which are allowed in
are kept under lien.
Third remedy is to penalize the account holder in financial terms and
allow the service with a penal charge.
The issue has to be discussed both from the legal point of view as well
as practicality. It must be admitted that it is impractical for the ISP
to expect collection of penal charges for the delivery of e-mails beyond
the the expiry of the account period since the root cause of discontinuance
is the non payment of the fees in the first place.
Bouncing back may be an acceptable solution since the sender atleast
has the option to re-send the mail to any other address of the recipient.
However it is not a preferred solution if we agree that e-mail is a
critical service and "Bouncing" can occur even when there is no default
in payment (eg: E-mail box full) and it places the recipient at a
serious disadvantage.
Sending a communication to an alternate address due to bouncing of e-mail
in the designated e-mail box of a recipient may have legal implications
on the validity of the delivery as against the sender.
The withholding of access of the mail box and trapping the incoming
mails in such a box means that the sender is not aware that the box is
not accessible to the addressee and the delivery may come under dispute
at a later day. If the addressee chooses not to renew the account at all,
then the mails may be permanently lost. There are issues of privacy as
well.
However in terms of the legal implications, the ISP may be able to establish
that he has a lien against the property (E-Mail which is an electronic
document belonging to the e-mail box owner) which has come into his hands
in the normal course of business for the dues directly connected with the
provision of the service.
Though legally sustainable, this option is extremely customer unfriendly
and is better avoided.
The solution to this day to day problem of the Netizens lies in the
acceptance that the Netizens should have a reasonable option to change
their service providers when required. The following suggestion is therefore
placed before the public which can be voluntarily imposed by ISP s themselves
or by a suitable amendment to the law itself.
Suggestion:
In order to face situations of non payment as well
as the non availability of space in the box, it must be made mandatory
for the ISP to provide an option to the account holder that "In the event
of the e-mail box being full or otherwise the service is to be discontinued,
all incoming mails are to be diverted to an alternate e-mail address to
be provided by the addressee along with a notice to the sender of the fact
that the mail has been diverted. (Without assigning any defamatory reason
thereof).
This facility may be continued atleast for a period of six months
from the date of discontinuance.
A similar "Redirection Service" may be provided by the
web hosting persons as well. (to prevent cases similar to go2nextjob.com)
We may observe that there are similar provisions for "Notice of
Discontinuance" for Certifying authorities under the ITA-2000 and similar
laws around the world. Similar obligations are required to be incorporated
for discontinuance of any e-mail or web-hosting service as a part of the
ITA-2000 itself or as a part of the ISP guidelines.
This will ensure that no critical service such as a e-mail service or
web hosting would be discontinued unless there is an adequate notice and
diversion of visitors to the earlier address to an alternate address.
naavi.org urges Web-hosting companies and e-mail providers in India
to introduce such Re-direction facility on Discontinuance services. Any
such service providers would be considered "Customer friendly ISP s" and
would deserve a special praise.
Naavi
November 15, 2001.
Related Articles:
Holding
email mean but legal-By SIMON MINAHAN
First
Case Under Information Technology Act -A Beginning on the Wrong Foot?
Confusion
on Hacking
