Professional Documents
Culture Documents
Legal Issues in Electronic Transformation: Chapter - V
Legal Issues in Electronic Transformation: Chapter - V
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This law should also identify the key tasks of the state and the main
implementation measures thereof, the law also must provide for the state administration
bodies responsible for the development of e-governance and their competence, the
procedure for drafting and approval of the documents on legal regulation and the
financial sources of the development of e- government.
The law must provide that the aim of the state is to create equal opportunities for
all members of society to take part in the processes of development of e-governance,
irrespective of their social or financial status, age or place of residence, and to support the
initiatives of nongovernmental Organizations and other legal and natural persons in this
process. The law should contain a Principle that the state policy on the development of e-
governance direct public and private interests to the acceleration of the creation of
information society encourage society to look for the ways and means of cooperation
between state institutions and society in the field.
The law would specify what functions of state administration will be carried out
by which governmental institutions, defining their competence, rights and obligations, as
well as the principles of strategic planning.
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General Background Principles of e-Commerce could be
Coordinated approach- Legal and regulatory issues are part of a wider, “holistic”
approach- a set of complementary initiatives in the legal, technological, business and
other areas.
138
Notably, information in the public domain should be easily accessible. Information is the
basis of a well functioning and transparent decision-making process and a prerequisite for
any democracy. Knowledge is the key agent for transforming both our global society and
local communities.
Legal Issues
The Chapter 3 of the Information Technology Act, 2000 specifies the procedure
to be followed for ending and receiving electronic record and the time and place for
dispatch in the receipt. This chapter contains sections 4 to 101, which are more
significant for the issue at hand.
This section gives legal recognition to electronic records and provides that where
any law requires that any information or matter should be in the type written or printed
form, then such requirement shall be deemed to be satisfied if it is in an electronic form.
This section relating to legal recognition of digital signatures provides that where
any law requires that information of document or other matter should be authenticated by
means of digital signatures are affixed in such a manner as may be prescribed by the rules
framed by the Central Government.
Use of electronic records and digital signatures in Government and its agencies4:
This section lays down the foundation of electronic governance. The filing of any
form, application or other documents, creation, retention or preservation of records, issue
1
Information Technology Act, 2000
2
Section 4 of Information Technology Act,2000
3
Section 5 of Information Technology Act,2000
4
Section 6 of Information Technology Act,2000
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or grant of any license or permit or receipt or payment in Government offices and its
agencies may be done through the means of electronic form.
This section provides that where any law provides that documents, records or
information shall be retained for any specified period, then that requirement shall be
deemed to have been satisfied if the same is retained in the electronic form.
This section provides for the publication of rules, regulations and notification in
the Electronic Gazette. Where any law requires the publication of any rule, regulation,
order, bye-law, notification or any other matter should be published in the Official
Gazette, then such requirement shall be satisfied if the same is published in an electronic
form.
Section 6, 7 and 8 not to confer right to insist document should be accepted in electronic
form:7
This section provides that the conditions stipulated in sections 6,7 and 8 shall
confer any right to the public to insist that documents should be accepted in electronic
form by any Ministry Department of the Central Government of the State Government.
Power to make rules by Central Government in respect of digital signature:8
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(c) The manner of procedure which facilitates identification of the person affixing
the Digital Signature;
(d) Controls processes and procedures to ensure adequate integrity, security and
confidentially of Electronic records or payments; and
(e) Any other matter which is necessary to give legal effect to digital signatures.
The IT Act came into effect in the year 2000. The basic ethos of IT Act, 2000 was
to provide legal sanction to E governance so that the country can move onto the 4th
generation of the Digital Era. The framework may be in place but the procedures are not.
e-governance demands amendment to the existing law. Amendments are to be needed at
the central as well as the state level. In order to give the project a specific focus it would
have to be financed under a separate budget head. This would enable mission critical
linkages and avoid rework and duplication. Cyber laws should be available to the public
as early as possible so that the IT System and information documents stored in the system
will have the same legal validity as the documents stored today on paper.
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“Computers” to the judicial officers. We must appreciate that “e-governance in India”
cannot be equated with mere “Computerization”. It must relate to the active use of ICT
for effective Justice Administration. However, the Supreme Court e-committee has at
least taken a “Positive Step” in the right direction and Perry Law welcomes this step.
Perry Law is committed to extend its expertise to the Indian Government in general and
Supreme Court e-committee in particular for the effective establishment, maintenance
and functioning of the e-Courts in India.
It’s an undisputed fact that e-Commerce has become a part of our daily life. One
such justification for the popularization of e-Commerce would be immoderate
technological advancement. e-Commerce, as the name suggests, is the practice of buying
and selling goods and services through online consumer services on the internet. The ‘e’
used before the word ‘commerce’ is a shortened form of ‘electronic’. The effectiveness of
E-Commerce is based on electronically made contracts known as E-Contracts. Although
E-Contracts are legalized by Information Technology Act but still majority feels insecure
while dealing online. The reason being lack of transparency in the terms & conditions
attached to the contract and the jurisdiction in case of a dispute that may arise during the
pendency of a transaction with an offshore site.
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An e-contract is a contract modeled, executed and enacted by a software system.
Computer programs are used to automate business processes that govern e-contracts. E-
contracts can be mapped to inter-related programs, which have to be specified carefully
to satisfy the contract requirements. These programs do not have the capabilities to
handle complex relationships between parties to an e-contract9
e-Contracts can be categorized into two types i.e. web-wrap agreements and
shrink-wrap agreements. A person witnesses these e-contracts everyday but is unaware of
the legal intricacies connected to it. Web-wrap agreements are basically web based
agreements which requires assent of the party by way of clicking the “I agree” or “I
accept” button e.g. e-bay user agreement, Citibank terms and conditions, etc. whereas
Shrink-wrap agreements are those which are accepted by a user when a software is
installed from a CD-ROM e.g. Nokia pc-suite software.
9
Vasudha Tamrakar & Pratibha Pal- Article-E-Contracts and its Legality-Students : NLIU, Bhopal (MP)
www.legalserviceindia.com/articles/ecta.htm visited on 13 03 2008
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cameras, digital video cameras, video conferencing are adding a new dimension to the
evidentiary regime. Justice Gururajan, the Karnataka High Court judge has held in a civil
suit that video conferencing evidence is valid .The emergence of information and
communication witnessed sea change by elevating the status of the evidence recorded,
generated or stored electronically from the secondary to primary evidential status. The
shift in the paradigm owes to the efforts of the working group of the UNCITRAL Model
law on electronic commerce and assigning of the legal recognition to e-record or data
message.
The evidentiary value of e-contracts can be well understood in the light of the
following sections of Indian Evidence Act. Sections 85A, 85B, 88A, 90A and 85C deals
with the presumptions as to electronic records whereas Section 65B relates to the
admissibility of electronic record. The above mentioned sections can be explained as
follows:
Section 85B provides that the court shall presume the fact that the record in
question has not been put to any kind of alteration, in case contrary has not been proved.
The secure status of the record may be demanded till a specific time. The digital signature
should also be presumed to have been affixed with an intention of signing and approving
10
Section 85A of Indian Evidence Act, 1872
11
Section 85B of Indian Evidence Act, 1872
144
the electronic record. Further it has been provided that the section should not be misread
so as to create any presumption relating to the integrity or authenticity of the electronic
record or digital signature in question.12
“The court may presume that an electronic message forwarded by the originator
through an electronic mail server to the addressee to whom the message purports to be
addressed corresponds with the message as fed into his computer for transmission, but the
court shall not make any presumption as to the person by whom such message was sent”.
As far as a digital signature certificate is concerned, the court shall presume that
the information listed in the certificate is true and correct. Inclusion of the words “shall
12
Section 85B of Indian Evidence Act, 1872
13
Section 88B of Indian Evidence Act, 1872
14
Section 90 A of Indian evidence Act, 1872
145
presume” again relates to the expressed exclusion of the discretionary power of the
court.15
This has been covered by Section 65B of Indian Evidence Act, 1872 which talks
about admissibility of electronic records. It says that any information contained in an
electronic record which is printed on a paper or stored/recorded/copied on
optical/magnetic media produced by a computer shall be deemed to be a document and is
admissible as evidence in any proceeding without further proof of the original, in case the
following conditions are satisfied:16
The computer output was produced during the period over which the computer
was used regularly to store or process information by a person having lawful control over
the use of the computer. In case a combination of computers, different computers or
different combinations of computers are used over that period, all the computers used are
deemed to be one single computer.
The information contained should have been regularly fed into the computer,
during that period, in the ordinary course of activities. The computer was operating
properly during that period and if not, it would not have affected the accuracy of data
entered.
The certificate issued should be signed by a person officially responsible for the
use of that device in relation to the relevant activity. The information fed into the
computer should be in appropriate form as well as by appropriate device.
15
Section 85C of Indian Evidence Act, 1872
16
Section 65B of Indian Evidence Act, 1872
146
To end with, it can be said that electronic contracts are almost same as other hard
copy contracts as far as its evidentiary value is concerned and in case of any discrepancy
there are certain prerequisites that fill the lacunae. All electronic contracts are valid
contracts as they are legalized by the Information Technology Act and one could be made
liable if there is any infringement with the terms and conditions. Subsequently many
amendments have been made in order to attain conceptual clarity.
This section seeks to give the reader a brief in-sight as to the rationale behind the
increasing trend towards imposing greater liability on Internet Service Providers
(ISP’s).The traditional thinking has been that the position of an Internet Service Provider
equated with that of the traditional telecommunications carrier – that it was merely a
conduit that passively allowed for the transmission of data and was therefore not
responsible for the nature, or character of that data. The simple logic behind this train of
thought is that it would be unjust, unreasonable and impractical to expect an ISP to
monitor all of the services that it may give access to, so as to safe guard against
illegitimate use and or criminal activity. This is an approach that is based in true
practicality.
Many ISP’s host numerous web-based services, which themselves allow access to
countless web pages and services; all to a worldwide audience. It has often been
contended that placing such a burden on an ISP would adversely affect the free flowing
nature of the Internet. This “conduit immunity” which is extended to ISP’s is being
increasingly eroded. The principle reason for this is based in the fact that the ISP can be
considered to be the gateway to the Internet and web-based services. The ISP is arguably
best placed to block and remove offensive material. Thus, by regulating the manner in
which ISP’s respond to abuses of the Internet, major advances can be made to ensure that
the Internet remains the Super Information Highway and pulls away from the danger of
becoming a haven for illegitimate practices and illegal activities. This move away from
the conduit exception may also be the regrettable recognition that self-regulation of the
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Internet is, to a large extent, unworkable. The principle complex issues facing the ISP are
as follows:
Content liability; for example defamation, Intellectual Property Rights, Crime
detection and Surveillance Jurisdictional Exposure and these issues are symptomatic of
the very nature of the Internet; it is a trans-national multicultural open forum, which for
the present is virtually unregulated. It is a most interesting time to address the question of
ISP liability. The legal battles facing the ISP “Yahoo!” may well set an international
precedent with regard to this area of the law for years to come. Yahoo! is currently
seeking to appeal before a US Federal Court against a ruling handed down against the
provider, by a French court, ordering it to bar French citizens from being able to access
Nazi memorabilia auctions hosted through its portal. At the heart of this matter is the
tortuous problem of applicable law in Internet based legal disputes. This will be
considered below. "Yahoo!" may face yet another arduous legal challenge arising from its
alleged failure to properly enforce its terms and conditions with regard to keeping
obscene images and content off its "Geocities". This site allows private users to establish
and maintain their own websites, and Yahoo Chat areas. Yahoo! has since removed the
offensive privately run sites at the centre of the controversy. The basis of the difficulties
facing the high profile service provider Yahoo! are common to the vast majority of ISPs,
including those operating in the Educational sectors, be they Further or Higher Education
Institutions.
Much debate is currently taking place in the courts, amongst legislators, ISP
representative bodies and public lobby groups, as to how much of a burden should be
placed on the ISP. The compromise position of “Notice and Take Down” is quickly
becoming a recognized and accepted way forward. The basic premise is that an ISP may
not be automatically liable where it acts, as expediently as is reasonably possible, to
block and or remove illegal or infringing material upon receiving notice of the existence
of such content or services being made available through its facilities. The two key
aspects to this surfacing are the type of notice which must be served on the ISP, and
question as to what is considered reasonable with regard to acting expediently, to make
the material or service in question inaccessible. The ISP must ensure that it does not act
in an overly protective manner; if it bars access to a commercial activity without just
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cause it may have to face substantial compensation claims for losses of revenue sustained
by the commercial entity involved.
Following is quite an interesting case on Internet Defamation:
17
Dow Jones & Co. Inc. v Gutnick was an Internet defamation case heard in the High
Court of Australia, decided on 10 December 2002. The 28th October 2000 edition of
Barron's Online, published by Dow Jones, contained an article entitled "Unholy Gains" in
which several references were made to the respondent, Joseph Gutnick. Gutnick
contended that part of the article defamed him. A key issue was whether suit could be
brought in Australia.
In court it was proven that only five copies of the Barron's print edition were sent
from New Jersey to be circulated in Australia. The internet version of the magazine had
550,000 international subscribers and 1700 Australian-based credit cards.
Geoffrey Robertson QC argued for the publisher Dow Jones, as to whether it was
considered to be "published from" where it was uploaded in New Jersey or "published
into" where it downloaded by subscribers in Victoria, Australia. The argument centered
around publication and jurisdiction.
Decision
In a unanimous decision, all seven High Court justices decided that Gutnick had
the right to sue for defamation at his primary residence and the place he was best known.
Victoria was considered the place where damage to his reputation occurred. The High
Court decided that defamation did not occur at the time of publishing, but as soon as a
third party read the publication and thought less of the individual who was defamed.
17
Decided in High Court of Australia on 10 12 2002 reported by Wikipedia, the free encyclopedia
149
people wish to do business in, or indeed travel to, or live in, or utilize the infrastructure of
different countries, they can hardly expect to be absolved from compliance with the laws
of those countries. The fact that publication might occur everywhere does not mean that it
occurs nowhere." (per Callinan J at para 186)
Equally, however, the majority of the Court (Gleeson CJ, McHugh, Gummow and
Hayne JJ handing down a joint decision) stated that they disagreed that this would cause
open-slather defamation actions in Australia: (at para 54 of the decision)
…the spectre which Dow Jones sought to conjure up in the present appeal, of a publisher
forced to consider every article it publishes on the World Wide Web against the
defamation laws of every country from Afghanistan to Zimbabwe is seen to be unreal
when it is recalled that in all except the most unusual of cases, identifying the person
about whom material is to be published will readily identify the defamation law to which
that person may resort.
The case was highly controversial and the subject of much commentary from
legal analysts, particularly in the United States.
On 15 November 2004, Dow Jones settled the case, agreeing to pay Gutnick some
$580,000 in fees and damages.
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liberties groups in the States have hailed this as a victory for free speech and assert that
this activity was most certainly not criminal behavior. Of course, the creators of this site
may have to face a civil claim for defamation. The reason why it is important to consider
the US approach to freedom of expression at this juncture is that it may be said to be very
much in contrast with approaches adopted in other jurisdictions. So for example an ISP,
which is a global player, may face a multitude of differing legal regimes, yet may have to
be equally responsive to each of them. The compromise position that has to be reached
must seek to balance each of these issues in a fashion, which duly reflects the trans-global
reach of the Internet.
Has your Institution, in its capacity as an ISP, taken all reasonable steps and
adequate measures to ensure that your network users are not making illegal use of their
access? Has your institution a system in place to fast-track the removal of obscene,
illegal, infringing or defamatory content from your servers? Has your institution
configured the network to bar access to known sites that may be classified as defamatory,
illegal, obscene, or infringing? Do the system administrators review this on a regular
basis? Is your institution operating its network in accordance with the JANET Acceptable
Use Policy. Following a hacking incident with one of your web pages, for example the
defacement of your homepage, have you an emergency procedure in place to restore the
site and to remove the un-vetted content? This may be especially relevant to institutions
with a younger student population. Have you an appropriate legal disclaimer on your
website? Have you specified the applicable jurisdiction in the event of a dispute?
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liability would be complete without taking a look at the landmark UK case of Godfrey v.
Demon, 1999. On the 17th of January 1997 it came to the attention of the plaintiff, Dr.
Laurence Godfrey, that an unknown party had posted a series of statements, which were
later described by the court as being “squalid, obscene and defamatory to the plaintiff”, to
a newsgroup hosted by the defendant ISP Demon Internet Ltd. This unknown party had
posted these comments using another ISP. Dr. Godfrey immediately notified the
defendant ISP of the existence of the defamatory postings and requested that they be
removed as quickly as possible. The defendants failed to remove the postings, despite
numerous requests having being made by the plaintiff. The postings remained available
to the worldwide public for a further ten days until the system automatically imposed an
expiry timeout period. Predictably, the defendants sought to rely on section 1 of the
Defamation Act, 1996. This provision allows for a defense against a defamation claim,
where it can be shown that the defendant is not the publisher, author or editor of the
statement complained of that they had taken all reasonable care in relation to its
publication and that they did not know, or have reason to believe, that they had caused or
contributed to the publication of the defamatory statement.
The decision of Macquarie Bank Ltd. v. Berg, laid down by the Supreme Court of
New South Wales19 in 1999 generated interest from a cyber-law perspective. But
technically Macquarie Bank propounds a dubious judicial precedent. The plaintiffs,
Macquarie Bank Ltd, sought to restrain the publication of defamatory material on the net
through a website operated by the defendant Berg. Berg, a former employee of
Macquarie Bank, was evidenced to be in the United States at the time the defamatory
imputations were published. In rejecting the application for interim relief and refusing the
injunction, Simpson J reasoned that an injunction in such a multi-state case exceeded the
proper powers of the New South Wales court. Such an injunction would restrain Berg
from publishing anywhere in the world via the Internet. It would also prejudice the rights
of Berg to publish the material in other jurisdictions. Finally, even if the previous matters
were not a bar to the grant, the injunction would be unenforceable as long as defendant
was outside the New South Wales forum.
19
Decided on 20 11 2000 by Supreme Court of New South Wales
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The Macquarie Bank Case sets a dubious example. It confused the injunctive
remedy as far more limited under private international than it is. It ignored the present
state of law on the scope of court's injunctive powers to prevent an abuse of its processes.
The decision also misunderstood the functions of the Internet in reading it as an
unqualified 'global' domain. The onus of determining forum was also misapplied - it was
Berg who had to show that the forum selected by Macquarie's lawyers was inappropriate.
Macquarie Bank's lawyers might have been best served by either suing immediately for
an award of damages or the ISP that hosted the news forum. But in reality they had a case
to show that Macquarie's reputation interest lay in N.S.W. The laws of the world did not
matter, because enforcement would only have been relevant to Britain or the U.S. Finally
the decision failed to take into account prospects for enforcing the interim award in an
American court. Critiqued under private international law, the decision remains
conceptually poor, enabling publishers of defamatory material to escape and impede the
court processes of the forum court through the medium they use.
Section 1(3) (e) of the Act was of particular relevance to the defence
Sub-Section (3) of Section1 provides that a person shall not be considered the author,
editor or publisher of a statement if he is only involved- and Sub Sub Section (e) provides
that as the operator of or provider of access to a communications system by means of
which the statement is transmitted, or made available, by a person over whom he has no
effective control.20
The defense also contended that as an ISP they could not be expected to scrutinize
every message before making it available to the public over their newsgroup server, and
sought to avail of the defense of innocent dissemination. The court found that although
the defendants were not a publisher within the meaning of the 1996 Act, they were,
however, publishers at common law as soon as they become aware of the defamatory
content and failed to remove it.
20
Data Protection Act (DPA), 1996 – This is an American Act
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The old case of Bynre v. Deane, 1937, was applied. This somewhat amusing case
concerned the following note that was anonymously placed on a notice board of a Golf
club:
"For many years upon this spot
"You heard the sound of a merry bell
"Those who were rash and those who were not
"Lost and made a spot of cash
"But he who gave the game away
"May he burn in hell and rue the day."
The note expressed the author’s disapproval of a fellow member of the club who
had apparently drawn it to the attention of the local police that certain automatic
gambling machines had been kept on the club premises for the use of the members of the
club. The machines were subsequently removed. The note was held to be defamatory;
“byrnn” on the last line of the verse being held to be a direct reference to the plaintiff.
The court awarded nominal damages to the plaintiff holding that the defendants had
‘complete control of the walls’ of the club and could have removed the note after they
had seen it. The main point of relevance of this case is that it was found that the club
owners could not defend the action by asserting that they had not committed a positive
act in the defamatory statements publication. Once they had notice of the existence of
statements on a notice board under their control, they should have removed it. Although
the technology is somewhat different in the Godfrey case similar reasoning is applicable.
It was held that the defendants were not merely the passive owners of an electronic
device through which postings were transmitted but could have chosen to obliterate the
posting complained of. The critical point of this case is that once the defendants knew of
the nature of the posting in question they could no longer claim that they had taken all
reasonable care in relation to the publication. Recent UK Developments in the Law of
defamation on the Internet The case of Totalize PLC v. Motley Fool LTD, decided in
February 2001, represents a significant progression in the law following the Godfrey v.
Demon case. This case also concerns the anonymous posting of defamatory statements on
a web-based discussion board. The author of the comments used a “nome de web”. The
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plaintiffs sought an order from the court requiring the defendant ISP to release
information it held that could lead to the identification of the certain “Z Dust”; the
anonymous author. For example unmasking the IP address of the computer from which
the postings originated. Unlike the defendants in the Godfrey case, Motley Fool Ltd
responded quickly to the plaintiff’s solicitor’s letter alerting them to the existence of the
offending comments on their discussion board. The “Z Dust” postings were removed and
his access rights to the discussion group were revoked within the same day of receipt of
the letter. “Z Dust” persisted in making offensive remarks, having been readmitted to the
discussion group. He was subsequently permanently barred from the site. By this time “Z
Dust” had posted in the region of ninety offensive messages concerning the plaintiffs.
The defendant ISP sought to resist the order to disclose the required personal
information claiming that they could not do so; as to comply would be in breach of Data
Protection legislation and would further breach the terms and conditions of the service’s
privacy statement. They contended that they had acted properly in denying the requests to
disclose the information, as the plaintiffs merely wished to use the information as a basis
upon which to get legal advice. The defendants claimed that this sort of “fishing
expedition” could not justify breaching their privacy statement and or Data Protection
legislation. It was held by the court that the statements were clearly defamatory. Justice
Owen commented that “Z Dust” had waged an intensive campaign of vilification against
the claimant. Therefore, the information being sought was not merely a fishing
expedition, it was clear that a tort had actually been committed. The only problem facing
the plaintiff in bringing a claim was simply the inability to discover the true identity of
the author of the offensive comments. The court referred the defence to section 3521 that
(1) Personal data are exempt from the non-disclosure provisions, where the disclosure is
required by or under any enactment, by any rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions where the disclosure is
necessary;
21
Data protection Act (DPA), 1998 of US
155
(a) for the purpose of, or in connection with, any legal proceedings (including
prospective legal proceedings), or
(b) for the purpose of obtaining legal advice, or is otherwise necessary for the
purposes of establishing, exercising or defending legal rights.
Justice Owen found that it is not necessary that the claimant be committed to legal
proceedings against a tort feasor in order to avail of the above exemption. The defence
also argued that they were protected from releasing such information ,
"No court may require a person to disclose, nor is any person guilty of contempt
of court for refusing to disclose the source of information contained in a publication for
which he is responsible, lest it be established to the satisfaction of the court that
disclosure is necessary in the interests of justice or national security or for the prevention
of disorder or crime."22 It was held by the court that this enactment was not applicable to
this case. The intention behind this provision is to resolve the tension that may arise
between the public interest in a free press and enabling the proper function of the justice
system. Section 10 is clearly designed to protect the journalist’s sources. The defendant
ISP took no responsibility for what was posted on their boards and thus could not avail of
this protection. The court ordered the defendants to disclose the required information.
While this case may seem like a further blow to ISPs it is in fact an affirmation of the
position that if they act expeditiously once they are notified of the presence of offensive
content on their servers and remove it, they will effectively avoid liability. The case also
gives the clearest indication to those who wish to defame, that they cannot do so with
impunity behind the screen of anonymity made possible by the use of websites on the
Internet.
22
Section 10 of Contempt of Court Act, 1981 of US
156
sharing websites being a primary example. Given the nature of the Internet, combating
this problem requires a transnational approach. As well as providing an analysis of US
legislation for comparative purposes, this section seeks to give you an overview of
pending European legislative provisions aimed at resolving the ISPs position in relation
to liability for infringing intellectual property rights.
The Act stipulates a clearly defined notice and takes down time table. When an
ISP is notified in writing that copyright infringing material is available through its
service, it must act expediently to remove or disable access to the offending material. The
written notification must provide adequate information to support the claim of copyright
infringement. The ISP is then obliged to notify the party, the subscriber that placed the
offending material on the server, that the material will be removed from the server within
157
ten working days of the notification having been served. The party alleging the
infringement must then seek a Court Order to restrain the subscriber from engaging in the
infringing activity by way of an injunction. This must be sought within a ten-day period
of the notification. Failure to comply with this time limit will oblige the ISP to replace or
re-activate access to the material in question. This somewhat long winded procedure
seeks to strike a balance between the right to Freedom of Expression and the proper
enforcement of intellectual property rights. A copy of the Digital Millennium Copyright
Act, 1998 can be found at the following location:
Arrival of the year 2000 is only one of many inducements for the information
professions to look both backward and forward. Another is information technology (IT),
which has been changing the nature of information creation, publication, and
communication for almost five decades. In so doing, IT is creating changes for both
information professionals and the society in which they find themselves. The ubiquitous
nature of IT and its fast development cycles have created confusion about the boundaries
of specific professions and even their very nature. It has also created a need for reflection
and analysis of the professions themselves.
Information and its dimensions are perceived and dealt with differently by IT
specialists, librarians, archivists, records managers, and corporate information systems
staff. While superficially a clear distinction is understood about the nature and work of
158
each of these professions, members of each have long experienced conflicts with one
another and with management: clashes of interest, overlapping duties, lack of mutual
acknowledgment, lack of consultation, and other turf wars.
There are, of course, differences in education and training, differences that serve
to exaggerate the contrasts rather than clarify the similarities between the various groups
of information workers. Relationships between interested parties have ranged from
indifference to intolerance to outright hostility on occasion. However, much of the
confusion about how these bodies deal with information seems to stem from semantic
confusion surrounding the terms data, information, knowledge, record, and document.
Ironically, convergence is probably the term that most describes the changes in
ITT. Various aspects of IT seem to be converging and becoming integrated or
concatenated. Multifunctional services such as the Internet with its array of functions
(e.g., World Wide Web, e-mail, e-commerce, telephony, and newsgroups) causes changes
as well in the human functions or activities it affects.
Will ITT, as an agent of change, lead to a similar convergence among the various
disciplines that can be described as the information professions? Or will even greater
clarity and distinctions be identified among these various roles? Some information
professionals may not view this as a problem; in fact, they may find their positions
enhanced and strengthened by IT.
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As a contributor to the electronic list serve RECMGMT23 stated, "RM is dying.
RM is thriving. Or another way to describe it is the traditional records management
profession is rapidly metamorphosing into RIM (records and information management).
RIM is the convergence of traditional records management disciplines and the IT
profession."
Interestingly, none of the debates on this topic consider that technology itself can
supplant any of these groups of information professions. The emphasis in the dialogue
focuses on how information professions can deal with such changes and how ITT can be
usefully integrated into their work. This view is supported by the underlying belief that
technology itself neither produces, evaluates, understands, nor adds meaning to
information.
The coming into force of the Prasar Bharati Act marks the end of a prolonged
struggle that revealed the enormous political and social importance attached to
broadcasting in India. The issue of autonomy for state-controlled Doordarshan and AIR
was addressed seriously for the first time by the B.G. Verghese Committee in 1977. The
committee, set up in the wake of the Emergency, addressed issues of how state-owned
broadcasters could be liberated from restrictive governmental control and censorship. The
Verghese Committee's recommendations led to the introduction of the Prasar Bharati
23
Records Management Programme
24
www.indiantelevision.com/indianbrodcast/.../legalresources.htm-The Central government introduced
Prasar Bharati Amendment Bill, 2010, in Rajya Sabha on Tuesday, Aug 31.
160
(Broadcasting Corporation of India) Bill in the Lok Sabha in May 1979. With the
dissolution of the sixth Lok Sabha and the emergence of a Congress (I) Government,
which made no secret of its hostility to autonomous broadcasting, the Bill was allowed to
lapse. Experiments during the Rajiv Gandhi Government to give broadcast television
some measure of freedom came to nothing. The build-up to the 1989 elections saw the
medium exploited by the Congress (I) Government in crudely propagandistic ways.
V.P. Singh's coming to power in the wake of that watershed election saw the
revival of the Prasar Bharati Bill in a somewhat modified form. It was passed by
Parliament and received presidential assent on September 12, 1990. The Act provided for
the creation of an autonomous Broadcasting Corporation that would manage Doordarshan
and AIR, discharging all powers previously vested in the Information and Broadcasting
Ministry, and through it, the state. The corporation will inherit the capital assets of
Doordarshan and AIR and their management will be through a 15-member Prasar Bharati
Board including the Directors-General of the two organizations and two representatives
from among the employees. The Chair and other members of the board would be
appointed on the recommendations of the selection committee headed by the Vice-
President. A 22-member parliamentary committee would oversee the functioning of the
Prasar Bharati Corporation and a 15-member Broadcasting Council, an ombudsman-like
body, would address public complaints. A complicated procedure does exist to allow the
government to supersede the board but only with the assent of Parliament.
THE Act of 1990 was not without its critics. The Left, for example, argued that
further parliamentary accountability was essential if publicly funded television was to
serve its raison d'etre. The experience of the Rajiv Gandhi years underlined these
demands, illustrating how easily state-run television could in fact be subverted to serve
commercial interests. These arguments, however, had nothing to do with the future
progress, or rather lack of it, made in liberating Indian broadcasting. During the less-than-
illustrious term in office of K.P. Singh Deo, Minister for Information and Broadcasting
for the first half of Prime Minister P.V. Narasimha Rao's term, Prasar Bharati, never
notified, was dragged to the market for slaughter. After founding and then promptly
killing the Air Time Committee of India, an experimental alternative to Prasar Bharati,
161
the Information and Broadcasting Ministry's mandarins insisted the Act had been
rendered obsolete by events. An expanding private sector was used to justify continued
state control over public broadcasting. Private broadcasters, unsurprisingly, were
delighted with this bizarre argument.
Supreme Court in its judgment dated 9.2.1995 in the Union of India vs. Cricket
Association of Bengal has held that airwaves are public property and a monopoly over
broadcasting whether by government or anybody else is inconsistent with the free speech
right of the citizens and directed the Government to take immediate steps to establish an
independent autonomous public authority representative of all sections and interest in the
society to control and regulate the use of airwaves. The Calcutta High Court has in its
judgement dated 19.7.75 in Union of India Vs People's Union for Civil Liberties
observed that the Central Government should take appropriate steps to give shape to the
objectives and ideals of the Prasar Bharati Act as early as possible. Government is at
liberty to pass fresh legislation if it deems fit.
The Hon'ble court has further observed that broadcasting media should be under
the control of the public as distinct from Government. It should be operated by a public
statutory corporation or corporations, as the case may be, whose constitution and
composition must be such as to ensure its/their impartiality in political, economic and
social matters and on all other public issues.
The Calcutta High Court has in its judgment dated 19.7.75 in Union of India Vs
People's Union for Civil Liberties observed that the Central Government should take
appropriate steps to give shape to the objectives and ideals of the Prasar Bharati Act as
early as possible. Government is at liberty to pass fresh legislation if it deems fit.
162
passed by Parliament in 1990, should be kept in mind while framing the regulatory
mechanism which should be an independent autonomous authority.
In the case of Union of India vs. Cricket Association of Bengal (1995), Prasar
Bharati was, however, rescued from violent death by Supreme Court intervention. The
Supreme Court order of February 9, 1995 in Union of India vs. Cricket Association of
Bengal held that the air waves were public property, not assets of the state to be disposed
of as it wished. The bench consisting of Justices P.B. Sawant, S. Mohan and B.P. Jeevan
Reddy had, in Cricket Association of Bengal, interpreted Article 19(1) of the Constitution
(which guarantees citizens the right of freedom of speech) and 19(2) (which guarantees
the right to practice a trade or profession) to mean that all interests and groups would be
given access to the broadcast media. Indeed this was the principal thrust of Prasar
Bharati.
163
e-Governance and Legal Issues
The case studies presented here demonstrate the potential impact of e-government
applications on transparency and corruption. These cases highlight some of the factors,
which contribute to successful implementation of e-government applications. Journal of
the Eighth National Conference on e-Governance 3-5 February, 2005.
Mutation requests to alter land records (upon sale or inheritance of a land parcel)
had to be filed with the Village Accountant. The Village Accountant was required to
issue notices to the interested parties and also paste the notice at the village office. Often,
25
Article: E-Government and access and Information by Mr. Subhash Bhatnagar-Business & Economics
Journal b
164
neither of these actions was carried out, and no record of the notices was maintained. If
no objections were received within a required 30-day period; an update to the land
records was to be carried out by a Revenue Inspector. In practice, however, it could take
1 to 2 years for the records to be updated.
RTC’s will then be available online at Internet kiosks, which are likely to be set
up in rural areas. However, since there is no change in the role of Revenue Inspector in
passing the Mutation Order, corruption in the mutation process may not necessarily fall.
Reports on overdue mutations reveal this and supervisors must then investigate and take
appropriate action. Clearly, there is no substitute for good management. Implementation
of land record computerization has been difficult in India. Bhoomi succeeded because
there was a champion in the departmental head who worked a 15-hour day for over 12
months, devoting 80% of his time on the project. Minimizing resistance from staff by
harnessing political support was an important contributory factor. Extensive training
coupled with a participatory style also helped to diminish resistance.
165
The recent advances in communication technologies and the Internet provide
opportunities to transform the relationship between governments and citizens in a new
way, thus contributing to the achievement of good governance goals. The use of
information technology can increase the broad involvement of citizens in the process of
governance at all levels by providing the possibility of on-line discussion groups and by
enhancing the rapid development and effectiveness of pressure groups.
Advantages for the government involve that the government may provide better
service in terms of time, making governance more efficient and more effective. In
addition, the transaction costs can be lowered and government services become more
accessible. Democracy holds leaders accountable to the people and it allows free flow of
information and ideas. The Internet is set to usher in E- democracy. In a digital
democracy re-inventing de-centralized administration by e-governance through speedy,
correct and truthful IT application is the main process.
Introduction
26
Valentina (Dardha) Ndou, Department of Business Administration, University of Shkoder, Albania
166
These trends suggest that private and public organizations have to reinvent
themselves through ‘continuous non-linear innovation’ in order to sustain themselves and
achieve strategic competitive advantage. The extant literature highlights the great
potential of ICT tools for operational efficiency, cost reduction, quality of services,
convenience, innovation and learning in private and public sectors. However, scholarly
investigations have focused primarily on the effects and outcomes of ICTs (Information
& Communication Technology) for the private sector. The public sector has been
sidelined because it tends to lag behind in the process of technology adoption and
business reinvention. Only recently has the public sector come to recognize the potential
importance of ICT and e-business models as a means of improving the quality and
responsiveness of the services they provide to their citizens, expanding the reach and
accessibility of their services and public infrastructure and allowing citizens to
experience a faster and more transparent form of access to government services.
The initiatives of government agencies and departments to use ICT tools and
applications, Internet and mobile devices to support good governance, strengthen existing
relationships and build new partnerships within civil society are known as e-Government
initiatives. As with e-commerce, e-Government represents the introduction of a great
wave of technological innovation as well as government reinvention. It represents a
tremendous impetus to move forward in the 21st century with higher quality, cost
effective government services and a better relationship between citizens and government.
Many government agencies in developed countries have taken progressive steps toward
the web and ICT use, adding coherence to all local activities on the Internet, widening
local access and skills, opening up interactive services for local debates, and increasing
the participation of citizens on promotion and management of the territory.
167
the other hand it should also be regarded as a challenge and a peril in itself. The
organizations, public or private, which ignore the potential value and use of ICT may
suffer pivotal competitive disadvantages. Nevertheless, some e-Government initiatives
have flourished in developing countries too, e.g. Brazil, India, Chile, etc. What the
experience in these countries shows, is that governments in the developing world can
effectively exploit and appropriate the benefits of ICT, but e-Government success entails
the accommodation of certain unique conditions, needs and obstacles. The adaptive
challenges of e-Government go far beyond technology; they call for organizational
structures and skills, new forms of leadership, transformation of public-private
partnerships.
Moving away from these assertions, the aim of this paper is to identify and
analyze the primary issues, opportunities and challenges that e-Government initiatives
present for developing countries. The insights and results here presented are based on an
empirical, web based research of 15 case studies undertaken in developing countries
(Argentina, Brazil, Chile, China, Colombia, Guatemala, India, Jamaica, the Philippines)
which have already explored and implemented e-Government initiatives. In these cases,
we can observe different applications and opportunities for e-Government, such as: tax
administration (Jamaica, Guatemala); better services to customers, businesses and
stakeholders in general (Brazil, India); and e-Government for transparency and business
efficiency (the Philippines, India, Chile).
The advent of the Internet, digital connectivity, the explosion and use of e-
commerce and e-business models in the private sector are pressuring the public sector to
rethink hierarchical, bureaucratic organizational models. Customers, citizens and
businesses are faced every day with new innovative e-business and e-commerce models
implemented by the private sector and made possible by ICT tools and applications, are
requiring the same from governmental organizations. Osborne and Gaebler (1992)
168
referred to citizens as customers for governments, since governments need to empower
rather than serve, to shift from hierarchy to teamwork and participation, to be mission
oriented and customer focused, and to focus on prevention rather than cure. Governments
worldwide are faced with the challenge of transformation and the need to modernize
administrative practices and management systems27.
Recently, the public sector has began to recognize the potential opportunities
offered by ICT and e-business models to fit with citizens’ demands, to offer better
services to citizens and to increase efficiency by streamlining internal processes. Tap
Scott and Caston (1993) argue that ICT causes a “paradigm shift” introducing “the age of
network intelligence”, reinventing businesses, governments and individuals. Paradigm
shifts prevail in the public sector too. The traditional bureaucratic paradigm,
characterized by internal productive efficiency, functional rationality,
departmentalization, hierarchical control and rule-based management, is being replaced
by competitive, knowledge based economy requirements, such as: flexibility, network
organization, vertical/horizontal integration, innovative entrepreneurship.
27
The failure of e-Government in Developing Countries-Article by Danish Dada
169
Most researchers and academics refer only to the first three blocks, without
considering the fourth or simply including it as part of ‘government to government’
block. The relationships, interactions and transactions between government and
employees in fact constitute another large e-Government block, which requires a separate
and very careful handling. Many people today refer to employees as internal customers
and as a result, in order for an e-Government initiative to be customer oriented and
centric, it has to take into account needs and requirements of this group as well. More
specifically, these e-Government blocks can be characterized as follows:
170
3) Government to Government: refers to the relationship between governmental
organizations, as for example national, regional and local governmental organizations, or
with other foreign government organizations. Governments depend on other levels of
government within the state to effectively deliver services and allocate responsibilities. In
order to realize a single access point, collaboration and cooperation among different
governmental departments and agencies is compulsory. Online communication and
cooperation allows government agencies and departments to share databases, resources,
pool skills and capabilities, enhancing the efficiency and effectiveness of processes.
171
demonstrating the complexities and heterogeneities needed to be handled for assuring its
success.
It is now widely accepted that ICT offers increased opportunities for economic
development and plays a critical role in rapid economic change, productive capacity
improvements and international competitiveness enhancement for developing countries.
The range of choices and opportunities in developing countries is expanding. ICT is
believed to be a powerful enabling tool to address some of the key barriers and
challenges for entering the global economy and for future growth potential. It can
transform old challenges and create unprecedented possibilities for sustainable economic
development, just as it has done for businesses in the industrial world. ICTs offer the
potential not just to collect, store, process and diffuse enormous quantities of information
at minimal cost, but also to network, interact and communicate across the world and
Econometric studies have found evidence of a strong positive relationship between ICT
investments and GDP growth illustrating the importance of ICTs for development, both
in the commercial and the public sectors.
Nevertheless, ICT represents a high risk for developing countries – the risk to
deepen the digital divide and to further marginalize them with the networking revolution.
Countries which fail to embrace and use ICT tools for entering the global network and for
addressing development needs, will suffer pivotal disadvantages in form of information
poverty that could further widen the gap in economic status and competitiveness.
172
priorities based on the decisive role it would play for ICT accessibility. Consequently, e-
Government initiatives have flourished in many developing countries such as Brazil,
India, Chile, Argentina, the Philippines, etc., reaping the advantages and opportunities of
ICT and the knowledge economy for collaboration, networking, better services,
efficiency and effectivity. However, many other initiatives have failed. In a recent survey
regarding the success and failure rates of e-Government in developing and transitional
countries, found that more than one-third of initiatives are total failures (e.g. the failure of
decision support systems in East Africa); further, half can be considered to be partial
failures (e.g. the partial failure of management information systems in Eastern Europe);
and roughly one seventh are successes.
173
e-Government case studies in 9 developing countries were performed and the
results obtained are presented in the following sections. What the experience with e-
Government initiatives in developing countries shows, is that: E-Government offers great
potential and opportunity for developing countries for improving their governance and
citizen satisfaction level. However, in order to realize the full potential of these
applications, governments must accommodate certain unique conditions and be able to
manage a set of issues, problems and related challenges.
e-Government Opportunities
28
ndou@hotmail.com visited on 04 04 2008
174
2001). The appropriate application of ICT may possibly reduce the number of
inefficiencies in processes by allowing file and data sharing across government
departments, thereby contributing to the elimination of mistakes from manual procedures,
reducing the required time for transactions. Efficiency is also attained by streamlining
internal processes, by enabling faster and more informed decision making, and by
speeding up transaction processing.
In the traditional model of public service delivery, the procedures are long, time
consuming and lack transparency. A business that wishes to obtain a license or a permit
has to fill out a number of application forms, has to visit a number of different offices and
spend a considerable amount of time. If a citizen wishes to be issued with a certificate or
any other official document, he or she will have to travel to the central government
office, go to different offices and spend a lot of time for a simple service. The
consequences are high costs and citizen and business dissatisfaction. An e-Government
initiative, on the other hand, which puts government services online, thereby reducing the
bureaucracy, offers round the clock accessibility, fast and convenient transactions, and
obviously enhances the quality of services, in terms of time, content and accessibility.
Example: In Bahia, Brazil, Citizen Assistance Service Centers have been created
offering over 500 separate services. These centers are placed in shopping malls or other
public places, and people going to shop can simultaneously apply for different public
services such as getting an identification card, looking for a new job, getting a passport,
and checking on their retirement eligibility. Customer satisfaction studies revealed that
175
over 89% of citizens evaluated the service centers as excellent (Rinne et al., 2001a).
Thus, the quality of services is ensured by the reduced time that users spend on getting
official documents, waiting and queuing to get documents, traveling, as well as more
customized products and services, error free documents, and 24*7*365 accessibility.
If web sites are designed carefully and openly, they can be valuable resources for
transparency as citizens, businesses and other stakeholders should be able to see political
and governmental information, rules and policies. Previously it was often necessary to go
directly to governmental offices to obtain information, but now this information should
be available on the web. The availability of a diversity of publications regarding the
activities of the public administration, as well as economic and legislative aspects,
increases the transparency too.
176
The use of ICT for the reorganization of internal administration transactions,
communications, interrelationships and for easy information flow and transfer offers
considerable opportunity to increase government capacity. Intranets allow different
departments to share databases of common customers and to pool skills and capacities of
their members for problem solving. These facilities in turn will pledge faster information
flow and transfer, quicker and cheaper provision of goods and services, faster and better
decision making processes, and unplugged paper bottlenecks. Knowledge based or expert
systems help to create a more responsive and guideline based process. This approach
assures benefits for businesses, which become both consumers of government services
and providers of goods and services to the government. It also assures benefits to the
government itself through reduced costs and spending, which could require lower taxes to
finance.
Example: The Time Saver Centre in Sao Paulo, Brazil, brings together multiple
services in a single location. Its objective is to deliver services more quickly and to
increase the satisfaction level of its citizens. A person requiring a service, on reaching the
appropriate agency, can register in the computerized tracking system and receive an
electronic ticket, which indicates the services desired and the estimated waiting time.
They can receive at the same time different services that traditionally were separated such
as vehicle registration, driver’s license, identification card, unemployment insurance etc.
A customer satisfaction survey conducted in 2000 for five centers reveals that 94% of
respondents evaluate services as “excellent” or “good”. This case demonstrates the
remarkable improvements that can be realized in service delivery.
ICT creates both pressures and opportunities for network creation and community
building. As argued before, an e-Government initiative requires a complex web of
interrelationships among government, customers, businesses, employees and other
governmental agencies. Moreover, the very nature and function of e-Government require
a network approach to put together skills, technologies, information and knowledge that
177
span the boundaries of different governmental agencies. It is generally impossible to find
all of them in one single governmental agency. The need for learning and training, for
example, requires a partnership between government agencies/departments and
universities or research institutions. The provision of integrated services at one contact
point requires the cooperation and collaboration of different departments and agencies,
horizontal and vertical integration, and therefore the creation of a large and diversified
network of relationships. The successful use and diffusion of ICTs in the public sector
involves a collective, multidisciplinary and dynamic learning process (Mansell and
Wehn, 1998). Moreover, the realization of electronic transactions triggers network
creation among private companies, financial institutions, telecommunication and ISPs.
On the other hand, an e-Government initiative enables community creation, giving
citizens and businesses the possibility to participate in forums, and in decision making
processes, contributing actively to different political and governmental discussions.
178
government and citizens could improve the quality of services by allowing government to
tap wider sources of information, perspectives and solutions to meet the challenges of
policy making under conditions of increased complexity (OECD, 2001). Considering
citizens as governmental customers, listening and understanding to their needs and
requirements, is essential for a better decision making process. The appropriate use of
shared data and information by all governmental agencies and departments offers the
possibility to make quick decisions thus to serve the community better. However
improvements in the speed and quality of decision making depend greatly on the
willingness of governments to be empowered with new information, the capability of
staff to process the large amount of information, the prevailing cultural values as well as
the motivation of governments to shift from a hierarchical public administration model to
a flexible, less centralized model.
Their feedback allows the government to adjust the content and information, to
customize the information and to reorganize itself around customers’ needs and
requirements.
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in facilitating market-led initiatives but also in initiating the process of capability building
and in coordinating the actions of a large number of interested stakeholders (Mansell and
Wehn,1998). In fact, one of the main benefits of an e-Government initiative consists of
the promotion of ICT use in other sectors. In order for e-Government staff to interact,
transact and communicate electronically with businesses, citizens and other stakeholders,
it is necessary to mandate the use of ICT tools and applications. For a government-to-
business electronic transaction to occur, the business itself needs to make use of
electronic equipment. On the other hand, financial institutions have to create secure and
reliable methods for electronic transactions. The development of new technological and
management capacities required for e-Government functionality encourage the
development in turn of new training courses and modules in schools and universities
trying to supply the required skills and capabilities to the market.
While it is evident that e-Government and ICTs, in general, are powerful drivers
of wealth creation and growth, there remain many challenges which hamper the
exploration and exploitation of its opportunities. The multidimensionality and complexity
of e-government initiatives implies the existence of a wide variety of challenges and
barriers to its implementation and management. Box 3 represents the main challenges,
180
identified in the case study analysis for e-Government development and implementation
in developing countries. In this section, we briefly introduce each of these challenges and
offer some policy implications for their management (see Appendix).
e-Government Challenges
29
Article by Richard N Katz-ICT Infrastructure-A Driver of Change published by Educause Review
Journal-ER Volume 37-2002
181
kiosks, etc., need to be taken into consideration by governments in order that all members
of society can be served irrespective of their physical and financial capabilities. However,
an ICT infrastructure does not consist simply of telecommunications and computer
equipment. e-readiness and ICT literacy are also necessary in order for people to be able
to use and benefit from e-Government applications. Having the education, freedom and
desire to access information is critical to e-Government efficacy. Presumably, the higher
the level of human development, the more likely citizens will be inclined to accept and
use e-Government services.
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electronic signatures. Hence, governments all over the world need to tackle the design
and development of a public key infrastructure, which will guarantee secure transactions
between organizations and individuals.
An executive order was issued which provided legal guidelines about how to
conduct electronic business, and how to advertise and post bids or notices in the new
electronic system. In addition, an e-Commerce law was promulgated, in order to give
legal protection to electronic documents.
183
their jobs more quickly and efficiently. It was also important to educate government
leaders, as they were responsible to explain what e-Government is and what its benefits
will be for the community.
Ultimately, basic computer and Internet training were provided to government
staff and public users of the e-Government system. In general, in almost all cases the
focus on training and education programs was a paramount phase for the assurance of
project endurance. However, the human capability development doesn’t end up with the
acquisition and achievement of basic initial skills. Instead, lifelong learning is an
essential prerequisite as the rate of change increases and new technologies, practices and
competitive models emerge. The full economic benefits of IT depend on a process of
social experimentation and learning, which is still at an early stage.
Change Management
Change management issues must be addressed as new work practices, new ways
of processing and performing tasks are introduced.31E-Government correctly designed
doesn’t simply save costs and improve service quality; instead it revolutionizes and
reinvents the government processes and functions. Change management can be divided
into two sub concepts:
31
www.unapcict.org/ecohub/resources/convergence visited on 02 01 2009
184
Employee resistance to change is still the biggest barrier to successful change.
Employees fear changes in general and ICT applications in particular as they believe that
ICT would replace them and so cause job losses. Moreover, it is very difficult in a short
time to turn off traditional methods of working and learn new ones. Addressing resistance
successfully means ensuring the existence of incentives for employees to learn and
change and the establishment of well-structured plans that embrace employee
participation throughout all stages of a change process.
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staff, learning and training courses for government staff and citizens, and other
governmental departments and agencies can contribute in data and information flow and
knowledge sharing for problem solving of similar tasks or processes and so on. A ‘New’
development model is emerging that focuses on partnership among stakeholders in the
knowledge-based development program (Talero & Gaudette, 1996).
Strategy
The government must have a clear strategy to overcome the barriers to change.
Part of the strategy is to engage in a rigorous assessment of the current situation, the
reality on the ground and the inventory of projects, articulate costs, impacts and benefits
of programme as well as continuously monitor and evaluate the project upgrading.
Borrowing a lesson from the private sector, e-Government must be customer-driven and
service oriented, meeting the needs of citizens and improving the quality of life. This
32
unpan1.un.org/intradoc/groups/public/documents/other/unpan visited on 03 03 2009
186
means that a vision of e-Government implies providing greater access to information as
well as better, more equal services and procedures for public and businesses. Even when
e-Government projects seek to improve internal government processes, the end goal
should be making government serve citizens better. This means recognizing the diverse
roles that citizens can play as partners, taxpayers, constituents, employers, employees,
students, investors and lobbyists.
Leadership Role
The public sector presents unique challenges for leadership. Changing and hazy
visions confuse expectations for reforms and leaders (OECD, 2001). Leadership is one of
the main driving forces of every new and innovative project or initiative. Since e-
Government is a complex process, accompanied by high costs, risks and challenges,
public organizations are generally resistant to the initiation of change. A leading player
(organization, institution), which is able to understand the real costs and benefits of the
project, to motivate, influence, include and support other organizations and institutions, is
required. Leadership is necessary before, during and after project implementation. Before
the project is initiated, leadership is needed in order to explain the concept, the model and
create awareness; during the project, leadership is needed to manage change and support
the project; and after the project, it is needed to pledge the required flexibility and
adaptability of the initiative. Top leadership involvement and clear lines of accountability
33
unpan1.un.org/intradoc/groups/public/documents/other/unpan visited on 05 03 2009
187
for making management improvements are critical to overcoming organizations’ natural
resistance to change, marshalling the resources needed to improve management, and
building and maintaining the organization wide commitment to new ways of doing
government.
34
web.worldbank.org visited on 05 03 2009
188
design and implementation of e-Government initiatives. E-readiness assessment - Start
with an e-readiness assessment study which permits Stakeholders to understand the
current state of telecommunication networks infrastructure, legal and regulatory
framework, current level of human resources and skills as well as the main impediments
within a country’s borders. Based on the outcomes of this assessment, it is possible to
produce strategies and action plans for building human resource capability, legislative
frameworks, institutional infrastructures, technological infrastructures and accessibility
for all in a tailored and effective way. Raise awareness among public and private
organizations - Organize workshops, events, seminars, conferences with the objective of
raising awareness about real opportunities and benefits that the ICT revolution can bring.
Prepare for long-term solutions to problems by ensuring the availability of appropriate
training programs for future management of technological and business changes. Think
small, be agile and fast - Begin with feasible pilot projects, tailored to specific contexts.
Build up steadily the qualifications necessary for facing hindrances. Be prepared to make
the required changes on the road. Agility and flexibility assure the success.
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telephones, kiosks, and multi-channel access to services. Find viable solutions to ensure
the effective participation of the community in the information economy.
Adopt a holistic and comprehensive approach, with clear vision and strategy35 to
overcome the barriers and challenges for change. Integrate e-Government with other
development strategies and policies to ensure a broad base diffusion. The active role of
top leaders is crucial especially at the earliest stages, to raise awareness, make ICT
development a national priority, build and maintain wide commitment and involvement at
public and private levels.
35
www-935.ibm.com/services/us/gts visited on 06 03 2009
190
in particular must use the model of “Collective Expertise” as “Originally propounded and
adopted” by Perry Law.36
These Techno-Legal issues must be resolved so that e-courts in India can function
properly. The Government must change gears now as the speed of reforms is grossly
inadequate. It is high time that the Government must establish a “Specialized Institution”
as per the requirements of UNDP, World Bank, European Union, etc so that foreign aid
and grants can be utilized appropriately and legally. We must have a suitable e-
infrastructure that is capable of meeting the needs of contemporary society. Perry Law’s
famous Techno-Legal and ICT Segment PTLB TM/SM will provide Techno-Legal and
ICT service pertaining to Cyber Law, Cyber Forensics Cyber Security, Techno-Legal E-
learning Services, Due Diligence Compliance, Techno-Legal Audit, E-commerce, E-
governance, ADR and ODR, IPRs, International Trade etc. We would also provide a
“Legislative Framework” that could be effective for meeting the requirements of e-courts
in India and an Online Dispute Resolution (ODR) base in India. In fact Perry Law is
receiving tons of appreciation communications and requests for extending its Techno-
Legal and ICT related expertise for matters pertaining to the establishment of e-courts in
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www.perryoffice.net visited on 09 03 2009
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foreign countries. We hope that our initiatives would prove effective for providing a
Techno-legal direction to e-courts in India in general and Indian ICT strategy in
particular.
At the same time Perry Law’s ICT and Cyber Security initiative titled as PTLB
TM/SM is managing various Techno-Legal issues associated with the ICT and Cyber
Security including protection of “Critical ICT Infrastructure in India”. We hope that
these initiatives of Perry Law would go a long way in providing a sound “Techno-Legal
Support” to India so that it can match the International Standards and Norms.
Perry4Law is the first ever Techno-Legal and ICT Law Firm of India, and perhaps
one of the few, in the world; dictated by cutting-edge technology. The firm is the
brainchild of young, dynamic and enthusiastic Techno-Legal experts, all holding at least
Masters Degree from the Premier Institutions of Law in India. Since its inception, the
Firm has conquered new horizons and set new parameters, in the legal industry and has
been recognized, both at National and International level; for its invaluable contribution
to the legal fraternity.
Perry4Law, first and exclusive Techno-Legal Firm in India; is dealing with the
legal issues associated with the use of ICT worldwide and is actively engaged in
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advocating and using ICT for legal purposes including ODR and establishment of E-
courts in India. Broadly speaking, its services include corporate matters, International
Trade, e-Governance, e-Commerce, Cyber Law, IPRs, Civil and Criminal litigation,
Taxation services, Legal BPO/KPO/LPO services etc.
It has the privilege of being the most contemporary Techno-Legal Firm in the
World that has acquired an expertise in the fields dominating the current Globalized and
Information and Communication Technology guided World. It provided its valuable
suggestions and recommendations to the Government of India on subjects like proposed
amendments to the Information Technology Act, 2000 (IT Act, 2000), proposed
Broadcasting Bill-06, Techno-Legal Security Requirements, etc. Its association with
various National and International ICT Institutions and Organizations like Computer
Crime Research Center, UNESCO, etc reaffirms its commitment to fight against Cyber
Crimes and Misuse of ICT at both National and Global Level.
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