We are all aware of UDRP or INDRP which is a Dispute Resolution Policy adopted by all Domain Name Registrars for resolving disputes arising out of conflicting domain name registrations. The policy is embedded into all domain name registration contracts and resolved through an Arbitration process.
This procedure which has been in existence since August 1999 and has been in use across not only the GTLDs but also the other TLDs and CCTLDs. The domain name registrations of these different TLDs are under several complicated covenants built into the domain name contracts and disputes arising thereof are resolved through mediation and arbitration.
A similar procedure appears to be also good for imposing the “Due Diligence” requirements under the Intermediary Guidelines under Section 79. Since the Government is now considering some modifications in the Intermediary guidelines, it is a good time to think about introducing this IDRP (Intermediary Dispute Resolution Policy) procedures as explained briefly below.
- The IDRP process would envisage that all intermediaries in their terms and conditions add one clause that the provision of the service and dispute resolution arising there of will be subject to IDRP.
- IDRP will be drafted by the Accredited IDRP Management Centers(like the WIPO arbitration center in case of domain names). These IDRP management Centers would be like “Accredited Arbitration Councils” and will adopt a well developed system of “Providing an Ombudsman”, “Mediation” and “Arbitration” as per the arbitration act of India.
- These IDRP s will incorporate all the Due Diligence Clauses which are included in the Intermediary Guidelines and hence without the entire list of clauses being repeated in all the terms and policy documents across websites and Apps the single clause of IDRP adoption will adopt the entire due diligence requirements.
- The Intermediaries should then be required to register themselves with the Government. Since according to the newly proposed guidelines, large Intermediaries need to have an establishment in India and those handling personal information will be subject to data localization, registration of significant and guardian fiduciaries etc., this proposal to get registered so that the Government has an inventory of such intermediaries is not difficult. Apart from the voluntary registration from the intermediaries, the IDRP Resolution Centers may be tasked at ensuring that an awareness is created and all identifiable intermediaries are registered and undertake to add the IDRP clause in their terms.
- In case any intermediary does not want to register and add IDRP clause, it will still be subject to the intermediary guidelines which they need to adopt and comply with but without the benefit of the ADR process.
- The IDRP process should be made entirely online and ODR mechanism (See www.odrglobal.in for more information) should be adopted. [P.S: Adoption of ODR mechanism in this process will provide a leadership status for India in adoption of this emerging best practice in dispute resolution and reduce the burden on the Indian Courts.]
- The terms and conditions that the intermediaries will be required to handle after adoption of this practice will consist of only the business related issues and the intermediaries will find it convenient to ensure that the burden of drafting a compliance related terms and conditions by availing the services of a Cyber Law expert is fully eliminated.
- The IDRP Resolution Center will be a new business opportunity for interested firms specializing in Cyber Laws applicable to intermediaries.
- By using the expertise available with the IDRP Resolution Centers, the terms can be well drafted not only to include the ITA 2000/8 requirements but also the IPR requirements, the PDPA requirements, the GDPR requirements and other laws that may have impact on the Intermediary-user relationship.
I therefore suggest that this idea can be incorporated in the proposed amendment to the Intermediary guidelines 2018.
(Comments welcome)
Naavi
Previous Articles:
New Intermediary Guidelines… Legitimate and Well within the rights of the Government:
Proactive technology tools to identify violation..new intermediary rules:
New Intermediary Guidelines.. Intermediaries need to have Indian Subsidiaries..:
Intermediary Guidelines.. Who is and who is not an intermediary?:
Draft Intermediary Guidelines 2018… Public Comments invited:
Copy of the guidelines:
P.S: The last date for submission of comments extended upto 31st January 2019. The comments would be put up on the website on 4th February and counter comments accepted upto 14th February 2019… http://meity.gov.in/writereaddata/files/Extention_Guidelines_2018.pdf
