There is a need to flag the condemnable attitude of service providers including “WhatsApp” who have the temerity to approach the Indian Courts against Government regulations by treating India as a country whose regulations are ignored.
I call the attention of Mr Modi, Mr Amit Shah and Mr Rajeev Chandrashekar with good wishes for their re-election to take note of some of the web sites who set terms of service stating that the jurisdiction for dispute resolution for their consumers is in their country and not in India. While the services are rendered in India, the consumers are barred by a contract to approach Indian Courts.
Some websites have started providing supplementary terms recognizing the rights of EU citizens and Californian Citizens besides the country of the origin of the service. But no other country is mentioned.
While we can accept that any company has the freedom to set its own rules and is not bound to recognize the Indian sovereignty, it is our responsibility to ensure that our citizens are protected.
This can be done only through an omnibus protection provided to Indian users of foreign services through the DPDPA 2023.
Currently such users are considered “Data Fiduciaries” and are liable under the Indian law. Hence any contractual terms that sets the dispute resolution outside the legal mandate of ITA 2000 and DPDPA 2023 is ultra-vires and cannot be considered valid.
However it is better if the MeitY through its rules on DPDPA 2023 makes it clear that
“Clauses in the contracts with any Data Fiduciary, Indian or foreign, which are not in conformity with the Indian laws shall be considered as void and the dispute resolution provisions provided under ITA2000/DPDPA2023 shall prevail.”
Ignoring this and bringing pressure on Indian users to agree to online click wrap contracts should be considered as an attempt to deliberately over-rule the law of the land and should be made punishable.
The DGPSI supported Dispute Resolution Policy shall support introduction of such a clause.
In one of the websites I observed the following clause:
Applicable Law and Jurisdiction. These Terms of Use shall be construed in accordance with the laws of Singapore without regard to its conflict of laws rules. Any dispute arising out of or in connection with these Terms, including any question regarding existence, validity or termination of these Terms, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of three (3) arbitrators. The language of the arbitration shall be English.
…It continues..
The following terms apply if you reside in the European Union:
Dispute Resolution. Notwithstanding the “Applicable Law and Jurisdiction” section of these Terms, if you are a “consumer” as defined under the EU Direction 83/2011/EU, any dispute, controversy or claim (whether in contract, tort or otherwise) between us and you, arising out of, relating to, or in connection with these Terms will be referred to and finally resolved by the court of your place or residence or domicile. You can also file a complaint at the online platform for alternative dispute resolution (ODR-platform). You can find the ODR-platform through the following link: https://ec.europa.eu/consumers/odr.
THE UNITED STATES
If you are a user of our Services in the United States of America, the below Additional Terms: (a) are incorporated into these Terms; (b) apply to your use of our Services; and (c) override the head terms of these Terms to the extent of any inconsistency.
If you are a user of the Services in the United States of America, the following terms expressly replaces the above “Applicable Law and Jurisdiction” section of these Terms.
California Resident. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
If you are a California resident, then (except to the extent prohibited by applicable laws) you agree to waive California Civil Code Section 1542, and any similar provision in any other jurisdiction (if you are a resident of such other jurisdiction), which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favour at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor”.
If such companies can selectively accept laws of EU and California, why should we not insist that they also take into account the laws of India. We need to protect Indian data principals against such clauses on the websites.
Suggestions are invited.
Naavi
