ABSTRACT
In the recent times, due to growth & development of E-Commerce, various consumer disputes have been arisen. Due to these multiple types of consumer litigation have taken place. To solve and resolve such dispute and make the consumer redressal forum efficient and effective, new method of resolving the disputes must be considered. Digital forensic is one such method which will highly be applicable in the field of E-commerce section and will be significantly helpful in resolving the consumer disputes originated from such section.
It will also help the consumer as well as the service providers with respect to conclusion or resolving of the cases in fast pace. Not only these different types of consumer redressal system can be made available to the consumer as well as service provider without approaching to the forum for such disputes. Various ECommerce guidelines have already in place to protect the consumer as well as various services provider. To make it more effective and efficient, such scientific method can be incorporated in investigation and consideration of the disputes while resolving.
As the Consumer Protection Act, 2019 have identified various aspects of the consumer dispute redressal mechanism including identifying products liability, mediation and solving of various offences including prescribe penalties, scientific application including digital forensic will help the consumer redressal mechanism in a different and effective way. In this paper authors will be highlighting the current system of redressal system and how well it can be made effective and efficient with the involvement of the scientific evidence, forensic evidence and Digital evidence which will helps in the reduction of the lengthy and multiple consumer litigations or disputes. It will also highlight the current E-commerce mechanism as how well it can be organised from the perspective of both consumer as well as service provider.
Keywords: Consumer Dispute Mechanism, Scientific Evidence, Consumer Litigation
Introduction
Due to advent of technologies and emergence of e-commerce in different field made the works easy for various sectors. Several sectors have been incorporating the new technologies for efficient working condition. E-commerce is something which has helped the traditional markets to absolve within the virtual market based on science and technologies. Several emarkets have been emerged due to such development. A huge number of consumers have been involved in the online transactions themselves due to its rapid growth and efficiency.
Consumer also includes the person who “buys any goods” and “hires or avails any services” includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing.[1] Various consumers considered the e-commerce websites for their transactions. Electronic commerce (E commerce) is considered a process by which business sell their products on the electronic medium and vis-a-vis the consumer can buy the products from the medium. Various E-Commerce players are present in the market due to various significant opportunities for businesses.
Amazon, PhonePe, G-Pay, Flipkart etc which involve in the online business whether it involves selling and purchase of merchandise or involve in the payment related transactions. These players provide various assistance and virtual market to the consumer’s at large scale. It also ties up with various payment mechanism which occurs online as well. Thus, online or this virtual market in the form of E-Commerce. E-commerce provides the opportunities to both the sides whether it is consumer and seller.
It gives seller the market where they can advertise their products and services and at the same time consumer will get the idea of the products and services to avail them as per their need. Market in India is still in the form of the traditional markets even though such e-commerce in the form of virtual market existed. Many people in India follows the traditional way of marketing which is generally based on trust and personal relationship among sellers and consumers. Face to face is the way of market in India. But still gradually online transaction through virtual markets have also been deployed for the consumer-seller benefits.
It is still growing. Such market which are new to the Indian customers often create various problems before them. Most of the Indian customers and sellers do not aware of the mechanism of the virtual market but due to competition and business opportunities, they are somehow involved in them. Such limited awareness of this cyber or virtual market creates problems and difficulties for them. Some of the goes to such an extent where both the sides must face the cyber offences. Various legal issues are not known by the consumers as well as sellers who are new to this medium of Ecommerce. Therefore, they are facing huge difficulties and sometimes cyber offences. It also leads to various consumer litigations as well which if might prolonged effect their business as well as personal wellbeing.
E-commerce is one of the faces of the cyber world which works online with the help of internet. In this cyber world or cyber space various things does not happen face to face or on the basis of trust and personal relationship among consumer and sellers. Most of the time consumer is not aware of the seller and vice-versa. Due to which identification of the parties to disputes itself takes time.
As in the e-commerce several parties are involved in the form of various intermediaries. Issues also arise of the legal validity and authenticity of such online markets including sellers and customers. Various issues of the privacy and security are also surrounds such online markets in e-commerce. However such issues and challenges have not effected the e-commerce in India, therefore it is thriving in India where several companies, startups have been coming in this business including various types of services and products.
Different facets which has to be recognised by the Electronic Commerce:
There are several issues and concerns which surrounds the e-commerce. E-commerce must address these issues which are mentioned bellow. These facets plays an important role in the developing stage of the e-commerce because e-commerce plays a significant role in the economy of any country.
a. Security
First of the requirement is of the maintaining the security for the clients. The security components should at least include a Secure Socket layer also called as SSL for secure data transfer and with it and 128-bit or higher encryption of stored data when numbers of credit card are to be stored.
With addition to it, merchant certificates and comparable security protocol like SET is to be used to maintain security. For frequent abusers, velocity checking of credit card numbers is important to cut down number of forgery attempts and those who are using credit card of others and finally message encryption ensures that the price, quantity and item doesn’t change after the transaction is made which is important to maintain integrity of the transaction.[2]
b. User authorisation and authentication
Since several transaction is occurring in the e-commerce online only, therefore it is required that such functions with respect to the identification of the parties such as the seller and buyer must be done properly. In these cases, separate used ID and password will be given to the parties for their transaction. Such identification must be done properly which gives the complete identity of the parties. A proper verification is also done with the parties before any such transaction. This on ground identification and authentication is involved in the virtual market in e-commerce.
Now a days in various B2B’s parties, separate electronic signature and digital signatures are considered for the transaction between the parties in e-commerce platform. Such identification and authentication in the form of virtual certificate plays a very important role in the identification of the parties involved in the online transactions with reliability and authenticity. Such data cannot be distorted without due process. Such scientific evidence can be utilised for the identification of the parties and also to identify the liabilities among them.
c. Customer Data Management
Customer plays an integral role in the e-commerce whether it is B2B model or B2C model. Wherever the parties involve in the online transactions, their choices and preference can also be captured and stored on the basis of the artificial intelligence algorithm, which enable them to make their choices properly. Such customisation is one of the eruption of the e-commerce players which they provide to their customers for the proper online transaction. This also assist the customer as well for purchasing things online. In this mechanism, customer chooses their products as per their preferences.
Such transaction then fulfil the basic criteria of the consumers basis rights i.e. consumer has all the right to identify, select and purchase the products as per their wishes. Such transaction is conclusive. So if any litigation is arises which involves the question whether consumer selected such products or not, can be answered with the help of such electronic evidence which shows the option available to them and selection made by them. Such customisation and personalisation assist consumer transactions. Such data is stored properly in the systems which is being as records for further transactions.
With addition to it, customer data stored online could help buyer in registering at the site and personalise their sale plus system is set up to save the transaction details which is done to avoid entering the debit/credit card details multiple times with each transaction.[3] On the basis of the customer profile and their transaction activities various offers and discounts are also provided to them which also helps the customer dealing. Virtual communities, multiple merchants supporting a common theme, attract buyers interested in a particular topic or industry.
d. Payment Security
One of the major issues arises in the e-commerce is whether the payment channel is secured or not. Financial information of the parties play an integral role in the e-commerce. Several ecommerce players provides for the saving of the financial information for future transaction. Whether Such information is stored and secured properly or not is one of the major concerns which can be reduced with the help of the various intermediaries who provides the assistance in payment process.
Several intermediaries tie up with the e-commerce players for the online payments. Due to e-commerce setup several payment facilities have been provided to the customers such as Net Banking, payment via credit or debit card, cash on delivery, online wallets system, various online portals such as PhonePe, PayPal, etc. All these recorded electronically which can be produced before the forum in case of any issues arises in consumer litigation with respect to payment issues as per the procedure provided in Information Technologies Act, 2000. Such record can be considered as a electronic evidence under section 3 of Indian Evidence Act, 1872.
e. Shipment of the Orders
After an order is placed for physical goods, the good must be shipped. The e- commerce solution should integrate the shipping charges, and provide it to the buyer before the purchase is made. Ideally, the electronic commerce solution should communicate with shipping companies to update a buyer’s order status, and communicate the order status to existing back office systems and back to the customers. Due to development in technologies a real time update is provided to the customers with respect to shipping of their order. A proper acknowledgement process is also provided to the customers with respect to goods whether they are received by the customers or not.
f. After Services to Customers
Various e-commerce players provided the facilities of the after services to their customers after the transaction. Such services and securities provided 24 hours and 365 days. Due to advent in the technologies, real time solutions is also provided through various customer care services numbers. Not only this via social media, several services is being offered by the e-commerce player to their customers. Through bots also solution can be provided to the customers. Such grievance if arises in the consumer litigations, records of such after services can be provided in the forum for speedy decisions.
Major Issues and Challenges with E-Commerce pertaining to Litigation:
The explosion in the e-commerce industry which has been necessitated by the growth and advance expansion of Information technology and its related facilities in recent years have been met with adverse security issues thus affecting the industry and the entire online activities.[4] Online business is solely done via the internet without any form of contact as the transaction is done via a technology mediated platform. Payment is done directly into the business owners account or through a third-party payment system in this regard the customer is made to declare his/her confidential bank details to enable the other party get the money and then send whatever has been bought through a delivery service. There is virtually no physical encounter between the parties.[5]
Despite the successes e- commerce is experiencing in the e- world, there remain an issue of security which most often is to the detriment of the online shopper and consequently the business owners as well. The upsurges in cyber-crime by unknown assailant who usually take the advantage the internet offers and in anonymity perpetrate heinous crime under the notion that they cannot be seen, most crimes are perpetrated with this belief system.[6] There are various crimes that are committed via the internet and its related technologies from denial of services, identity theft, Privacy violation and intrusion as well as industrial and financial espionage. It also protects the unfair trade practices made through any electronic medium.
Application of Scientific Evidence in Litigation through Forensic Science:
With respect to the investigations, now a days forensic science plays an integral and significant parts in the investigations. It also helps the justice administration systems along with law enforcement agencies to achieve the decision in any case with proper authenticity, reliability and efficiently. Supreme Court of India has identified the necessity of scientific investigation in the case of Som Prakash v. State of Delhi.[7]
In the landmark case of Selvi v. State of Karnataka[8], Hon’ble Supreme Court has recognised the advanced scientific method of investigation such as polygraph and Narco Analysis as a part of investigation u/s 2(h) of Code of Criminal Procedure. Forensic science has different branches where with respect to the ecommerce setup, cyber forensic or digital Forensic is very significant and played an important role. Todays due to advent in the science and technologies various cyber offences have traced down and solved with the help of the digital forensic. Digital forensic deals with the datas in the cyber world which conclusively leads to potential offenders and as well as victims. Due to encryption of the data in the cyber world is continuously stored and protected with the help of various technologies, fabrication and tampering is close to impossible.
Thus digital forensic can be one way to solve the consumer related litigation in the forum. Consumer forum can take the help of such mechanism or branch of forensic science which will help the forum to reach to their judgment or decision with full reliability and authenticity. Rather than the other branches of forensic science which helps in different types of crimes, digital forensic is much more accurate and reliable as it deals with computer network, internet, etc. where impossibilities of the tampering or fabrications is very less. Even though if such tampering or fabrication occurs due to hacking or other cyber offences, customers can be protected by various securities measures.
Various levels of authentications is present now days to curb such cyber offences in e-commerce setup. These all processes an be rectified continuously by the ecommerce players to protect their data and customers form such cyber offences. Therefore digital forensic science will help the forum in investigation, analysing of the evidences and decision making. Investigating agency has, therefore, to look for other ways and means to improve the quality of investigation, which can only be through the collection of scientific evidence. In this age of science, we have to build legal foundations that are sound in science as well as in law. Practices and principles that served in the past, now people think, must give way to innovative and creative methods, if we want to save our criminal justice system.[9]
Significance of the Scientific Evidence through Digital Forensic in Consumer Litigation in E-commerce:
Importance of the online transaction or transacting with e-commerce is that documentation is happening virtually in real time. Fabrications of such transaction will be impossible due to its virtual recording and storing in real time. Such data can be utilised by the courts for dealing with any disputes related with consumer issues. Consumer litigation can be solved with the help of scientific evidence efficiently and effectively within time frame rather than relying on traditional method of the considering evidences in a case.
Traditional method of investigation and collecting evidence will take time and analyses of the same will also take time which cannot help the consumer forum for discharging the case effectively. Due to incorporation of the traditional method, it will prolonged the case to be decided by the consumer forum. Generally consumer forum will rely majorly on the evidence collected through the traditional method, specially on the basis of the documents and eye witness testimony. E-commerce involve the collection and recording of the data in electronic form, which can be utilised and presented in the court for speedy decisions.
Documentary evidence collected and presented can be supported with the help of the eyewitness testimony which can be fabricated. Not only the eyewitness testimony can be fabricated bit even documentary evidence presented in the consumer forum in a case also be fabricated. Where as evidence recorded in the e-commerce and virtual market cannot be fabricated easily and supported by the various scientific backing and logics which made the court to decide the case on such evidence quickly.
Legal Frameworks relating Electronic Evidence collected through Digital Forensic
Since the cyber offences is highly deals with the computer, computer systems, network and networking system which access, records, store and present material facts through data. These data becomes the root of each and every evidence capture digitally. Evidence as highlighted through Indian Evidence Act, 1872 as electronic records or electronic documents provides for the procedure regarding the same as submitted and presented through the certificate. Law has started modifying themselves as the science is developing.
But the pace in which science is developing is quite large which cannot be adapted in the laws but the laws can be modified upto certain extent which can help the legal course or criminal justice administration to works or functions properly. There is a vast area with respect to laws which is uncovered to facilitate cyber offences and capture such electronic evidence properly. Law needs to be amended and modified as per the times as at present the reacting time of the law is very slow with respect to scientific development and increasing of different types of new crimes. Section 45[10] plays an important roles in consumer litigation which speak about the expert opinion on the matter of science and technologies.
Evidences collected through the Digital forensic can be summarised and explained to the consumer forum by the expert in such field for the efficient decision making. Section 293 of the Code of Criminal Procedure, 1973 also appears about the consideration given to the scientific reports generated but eh expert identified within section. Such reports should also includes the reports generated by the scientific experts who are dealing with the digital forensics. Information Technologies Act, 2000 has provided various such measures to tackle with the cyber offences. It helps in the identification and providing punishment for such cyber offences. But due to less number of evidence and potential culprits the act is of no news as no evidence can be admitted in the court collected through the traditional method of investigation. Even after the updation of the Information Technology Act, 2000 on the terms of United Nations Commission on International Trade Law in Information Technology (Amended) Act, 2008 with respect to Model Law on Electronic Signatures. Still investigation of such cyber offences and collection of the required authenticate and reliable evidence is the difficulty present infant of the courts. Lack of scientific investigation with respect to such evidence and using of the same in courts is still a target to achieve. It generally results in the low conviction rate for cyber offences.
As per the judgment given by the National Commission Bench of Judges K. S. Chaudhari and Suresh Chandra in the New India Assurance Co. Ltd. v/s Sree Sree Madan Mohan Rice Mill on 11th February 2012 in which it was stated that expert opinion can sought on the evidences obtained in consumer litigation. Consumer Protection Act, 2019 has also provided the mechanism of the complaint which can be made electronically as well to dispose of the case efficiently without wasting any time.[11] Consumer Protection Act, 2019 should also provides the due consideration of the electronic evidence or digital evidence as evidence along with evidence recorded orally or documentary annexed with affidavit as per section 38.[12]
Conclusion: Recommendations & Suggestions
In the age of Cyber, it is very important that understanding and efficiency of the digital forensic must understood by everyone. A proper policy framework can be establish which will help in the ascertainment of the functions of the digital forensics for the protection and betterment of the e-commerce. A policy which can help in the investigation of the cyber offences, offences required electronic evidences etc. a specialised brach has to be created with the suitable and expert professional to deal with the cyber forensics who can work efficiently and help the consumer forum in the analysis of the electronic evidence which are collected through digital forensic.
This will help the consumer forum to each their decision based on the concrete evidence analyse and rectified properly. Electronic evidence and their admissibility has to be supported properly without any kind of issues or doubt, such kind of system has to be developed as it is one of the conclusive evidence generally as it cannot modified and changed. If it is done, that activity will also gets recorded in the system which also shows the forum about any kind of attempted modification or tempering. On the basis of the aforementioned, following are recommendations which can be incorporated in investigation and in order to deal with the issues of the electronic evidence alongside digital forensic in the consumer litigation related with the e-commerce setup by the consumer forum: –
- Digital Forensic has to be given importance and atmosphere has to be created in such a way so that it can developed and functions accordingly and admitted by the forum for the speedy judgment disposal system. Digital forensic will also helps the doubts created in the ecommerce setup and consumer litigations raised before forum.
- Digital forensic should be adopted and proper training should also be given to officers or officials personnel involved int he investigation and decision making.
- Recognition and admissibility should given music more preferences in the consumer litigation arise in the e-commerce setup by the forum rather than relying on the testimonial evidences.
- Expert opinion in case of electronic evidence must be given due consideration rather than a mere opinion as highlighted in section 45 of Indian Evidence Act, 1872 in the consumer litigation.
- Procedure as dealing with the search and seizure as provided in Criminal Procedure Code, 1973 must be compiled duly to prove the proper and authentic chain of custody for proving the proper chain of custody of the data recorded and presented before the forum.
- Offences as mentioned in India Penal Code, 1860 and Information Technology Act, 2000 or any other criminal law deals with offences committed through computer system, computer network system etc. must be dealt with the help of digital forensics if it also deals or originated in the consumer litigation.
- Cyber cell must be equipped with all the necessary technologies which deals with the issues occurring in the consumer litigation.
Author: This article has been written by Kunal Shekhar a student of BS (Data Science) LLB at National Law University Meghalaya
[1] Section 2(7) Consumer, Consumer Protection Act, 2019.
[2] Israel D. Fianyi, ‘Curbing cyber-crime and Enhancing e-commerce security with Digital Forensics’ (2015) Volume 12, Issue 6, IJCSI International Journal of Computer Science Issues, ISSN (Print): 1694-0814 1 ISSN (Online): 1694-0784 78
[3] Ibid.
[4] Supra 3
[5] Gnanasekar, J., ‘Enhanced multi agents based model for convergent business services’ (2014).
[6] Perez, J., ‘Gartner: Security concerns to stunt e- commerce growth’ (2005) Computer World.
[7] Som Prakash v. State of Delhi AIR 1974 SC 983
[8] Selvi v. State of Karnataka 2010 (7) SCC 263
[9] Dhanna Deo Yadav v State of Uttar Pradesh 2014 SCC 509
[10] Section 45 of Indian Evidence Act, 1872 – Expert opinion.
[11] Section 17, Section 35 Consumer Protection Act, 2019
[12] Section 38(6) (6) Every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record: Consumer Protection Act, 2019
