Inadequate laws may let Uber go scot-free

The outrage perpetrated by an Uber taxi driver and the resulting media frenzy has dominated our consciousness over the last two days.

As the government and the law enforcement agencies grapple with the ramifications of this shameful incident and the widespread public outrage, it is important to understand that this incident is different. It involves cyberspace and portend of things to come in future.

To begin with, let us understand how Uber works. Like Facebook, Amazon, Google, etc., it is a technological environment that allows different players to interact and do business. Uber provides a platform where customers are matched with taxis operators, thereby providing a service that offers convenience to the customer.

More conveniently, Uber charges the customers directly through their credit card and then pays the taxi operator. The customers do not have to deal with the hassle of paying the taxi drivers. All this is done by simply downloading the Uber app on your smartphone and submitting your credit card details.

To ensure passenger safety, Uber does some due diligence when selecting taxi operators and offers them basic training on how the business model works. It is also in touch with the taxi driver and tracks his movements via his mobile phone. All this is done through powerful software algorithms, without any human involvement. That is why Uber is able to operate hundreds of taxis with a skeleton staff of a few people.
More importantly, however, the Uber software as well as their database resides in servers located in San Francisco. That is why, when the police landed up at Uber’s India office they could not get any information for hours because it was in servers thousands of kilometres away. On the contrary, radio taxi operators like Meru are based in India and track movement of their vehicles via GPS and require payment to be made to the taxi driver.

If this was a real world situation, we have laws that are adequate to fix responsibility in case of any untoward eventuality. However, Uber operates in cyberspace and that is where the problem lies. To begin with, we have only one law that deals with Internet crimes – the IT Act of 2008. While this law has been misused by those in power to harass the common man, the situation is different when it comes to dealing with companies in cyberspace.

Firstly, the Act has stipulated guidelines for what it classifies as “intermediaries” in cyberspace. Unfortunately, the drafting of the guidelines betrays the fact that in the eyes of the drafters an intermediary is one who provides services such as web site hosting, email, etc. Such intermediaries are exempted – subject to certain conditions – from liability arising from any illegal activity involving their servers. However, this is the age of platforms and platform providers are also intermediaries, but they are quite unlike the intermediaries envisaged by the Act. Therefore, the guidelines are silent on this score.
Relying on US laws

In the pre-IT Act days, Indian courts relied on US court judgements because the US law was much more advanced in respect of cyberspace. Hence, wherever there is a gap in legislation, as in the Uber case, Indian courts should be able to turn to their US counterparts. However, this would lead to another dilemma. Unlike the IT Act, which exempts certain types of intermediaries from liability, the US Digital Millennium Copyright Act and related Acts such as the Computer Fraud and Abuse Act, Communications Decency Act, etc., entirely exempt all intermediaries from any liability. 

Therefore if the Indian courts were to follow the US example, it would not be possible to apportion liability on any intermediary including Uber. In fact, similar platforms such Airbnb (rooms rental) and Lyft (ride sharing) have had incidents of vandalism and assault in the US but have not been prosecuted .

Notwithstanding this immunity, these companies, including Uber, have been served notice by the state of Pennsylvania that their activities may be unlawful. The companies’ response – hire lobbyists, and voluntarily strengthen redressal mechanisms and develop even more sophisticated algorithms. Uber has employed David Plouffe, manager of President Obama’s winning campaign.

So the question is, will Uber go scot free? From the legal point of view, the answer appears to be yes, because, there is no clear cut law under which it can be found culpable. It cannot be charged for injury due to negligence because it did its due diligence regarding the driver and car papers.

Also, there is no system of background check like in the US where everything about an individual is available in databases and can be easily checked online. Above all, their entire operation is controlled from

the US where we have no jurisdiction. Thus, we may be able to catch the hapless Indian
employees who are only following orders and have no control over policy.
It is time for our legislators to relook at the shortcomings of the IT Act and work towards making it more in tune with the fast changing environment of cyberspace.
(The writer is an expert in cyber law and holds a doctorate on the subject from the National Law School of India University, Bengaluru)