CHAPTER - V

LEGAL ISSUES IN ELECTRONIC TRANSFORMATION

In this chapter legal issues relating to e-Governance, electronic transformation of
information, evidentiary value of electronic records, providing information to subjects
through Websites, disclosures, right to information, ensuring transparency as a legal
obligation have been discussed.

Legal Aspects of e-Governance

The application of information communication technologies to government may

encounter legal or policy barriers. Legislatures must ensure that laws are updated to
recognize electronic documents and transactions. They must take proactive steps to
ensure that policies support rather than impede e-governance.

Policymakers implementing e-government must consider the impact of law and

public policy. Otherwise, any initiative will encounter significant problems. The effort
must incorporate a holistic view, one that is not just focused on technology. Archaic laws,
old regulatory regimes, overlapping and conflicting authorities can all greatly complicate
or altogether halt the e-government undertakings. Therefore to overcome this, the legal
reforms and new policy directives based on uniform principles, may have to be adopted
before the online world can function smoothly.

One possible approach to implement such coherent legal framework and

specialized uniform e-governance legislation may be adoption of the law on the
fundamentals of the development of e-governance. Such law should be the basic legal act
that would regulate the development of e-government in the state. The main objective of
the law must be to define and specify the basis for necessary for the successful
development of e-government legal regulation in order to ensure legal stability and
continuous state policy on the process of creating the e- government.

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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.

Issues such as facilitation of e-commerce, protection of intellectual property

rights, open source solutions may also be addressed through such legislation. The main
principles of legal regulation of the law will be the creation of equal opportunities for
everyone to participate in the processes of e-governance, stimulation of cooperation
between state institutions and society, strategic planning and coordination of the bodies
that take part in the development of e-governance and effective management thereof,
move from paper based documentation and legal sources to electronic documentation and
sources, and finally improvement of the quality of governmental services through
electronic means.

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 egovernance 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

Acknowledging of fundamental rights and freedoms in the cyberspace- The

commonly recognized rights and freedoms shall be unambiguously extended to the
cyberspace, along with new extensions, which are made available by emergence of
cyberspace and e- government (e.g. access to Internet, electronic information and
knowledge).

New level of political commitment- A clear and predictable legal framework is

key for successful development of e-governance. Also aim at setting up an appropriate
open and competitive environment.

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.

Minimalist regulation - The one of general principles of e-governance regulations

is: No regulation for regulations sake!

Technological neutrality of e-government initiatives and processes- No

discrimination of any of Communication channels between government and society shall
be tolerated. Promoting universal access at affordable cost-Community-led development
is a critical element in the strategy for achieving universal access to information and
knowledge. Community accesses Centers and public services (such as post offices,
libraries, and schools) can provide effective means for promoting universal access in
particular in remote areas, as an important factor of their development. Relevance to all
groups of users- G2C, G2B, and G2G as well as minorities (disabled, elderly, etc.).

Any framework shall be universally accessible, trustworthy and nondiscriminator.

Powerful liberalizing influence- The various instruments adopted

represent a powerful liberalizing influence. Transparency and access to information-

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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.
Legal recognition of electronic records2
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.
Legal recognition of digital signatures3:
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

Information Technology Act, 2000

Section 4 of Information Technology Act,2000
3
Section 5 of Information Technology Act,2000
4
Section 6 of Information Technology Act,2000
2

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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.
Retention of electronic records:5
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.
Publication of rule, regulation etc., in the Electronic Gazette: 6
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
Section 10 contains rules relating to digital signature. It provides that Central
Government may by rules prescribe

(a) The type of digital signature;

(b) The manner and format in which the digital signature will be affixed;
5

Sec.7 of Information Technology Act, 2000

Sec.8 of Information Technology Act, 2000
7
Sec.9 of Information Technology Act, 2000
8
Sec10 of Information Technology Act,2000
6

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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.

The Techno-Legal Challenges in e-Governance and Solutions

The effectiveness of a Judicial System is measured by its capacity to provide a

timely and apposite justice to the parties to the dispute. Similarly, its effectiveness is
debatable when there are intolerable number of cases that are pending and undecided. In
the Indian context this is a clear violation of Right to Speedy Trial as conferred by
Article 21 of the Constitution of India. India is facing shortage of Judicial Officers to
handle the mammoth cases filed and accumulated over a period of time. One of the
possible solutions that can help India in this situation is the adoption of the benefits of
Information and Communication Technology (ICT) in the Judicial Functioning.
Unfortunately, the same has not found favor with the Executive, Legislature and
Judiciary. Although, the Supreme Court e-committee has been formulated yet it has not
taken serious, concrete and productive steps except providing Laptops and

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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.
Evidentiary Value of e-Contracts
Its 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.
What Are e-Contracts?
In the words of Sir William Anson, a contract is a legally binding agreement
between two or more persons by which rights are acquired by one or more to acts or
forbearance on the part of the other or others.
e-Contract is an aid to drafting and negotiating successful contracts for consumer
and business e-commerce and related services. It is designed to assist people in
formulating and implementing commercial contracts policies within e-businesses. It
contains model contracts for the sale of products and supply of digital products and
services to both consumers and businesses.

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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. Econtracts 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
An electronic or digital contract is an agreement drafted and "signed" in an
electronic form. An electronic agreement can be drafted in the similar manner in which a
normal hard copy agreement is drafted. For example, an agreement is drafted on your
computer and was sent to a business associate via e-mail. The business associate, in turn,
e-mails it back to you with an electronic signature indicating acceptance. An e-contract
can also be in the form of a "Click to Agree" contract, commonly used with downloaded
software: The user clicks an "I Agree" button on a page containing the terms of the
software license before the transaction can be completed. Since a traditional ink signature
isn't possible on an electronic contract, people use several different ways to indicate their
electronic signatures, like typing the signer's name into the signature area, pasting in a
scanned version of the signer's signature or clicking an "I Accept" button and many more.
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.
Evidentiary Value of e-Contracts under Indian Evidence Act, 1872
It is pertinent to contextualize at this juncture that evidence recorded or stored by
availing the electronic gadgets is given the evidentiary status. For instance: the voice
recorded with the help of a tape recorder. Now -a-days, the digital voice recorder, digital
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:
Presumption to Electronic Records
As regards presumption to electronic agreements, this section is incorporated. It
says that every electronic record of the nature of an agreement is concluded as soon as a
digital signature is affixed to the record. Section 85A has been added in order to ensure
the validity of e-contracts. But there are some restrictions as regards the presumptive
value. The presumption is only valid to electronic records, electronic records that are five
years old and electronic messages that fall within the ambit of Section 85B, Section 88A
and Section 90A of Indian Evidence Act.10
Presumption with regard to alteration11
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
11

Section 85A of Indian Evidence Act, 1872

Section 85B of Indian Evidence Act, 1872

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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
Presumption to electronic message13
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.
This section is self-explanatory as it purports to follow the basic rules of a valid
hard-copy agreement. The words may presume authorize the court to use its
discretionary power as regards presumption. Sections 85A and 85B contained the words
shall presume which expressly excluded this discretionary power of the court.
Presumption to Digital Signature
In case of an electronic record being five years old, if proved to be in proper
custody, the court may presume that the digital signature was affixed so as to authenticate
the validity of that agreement. The digital signature can also be affixed by any person
authorized to do so. For the purpose of this section, electronic records are said to be in
proper custody if they are in the custody of the person with whom they naturally be. An
exception can be effected in case circumstances of a particular case render its origin
probable.14
Presumption of Digital Signature Certificate
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

Section 88B of Indian Evidence Act, 1872
14
Section 90 A of Indian evidence Act, 1872
13

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presume again relates to the expressed exclusion of the discretionary power of the
court.15
Admissibility of Electronic Records
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.
A certificate issued is also admissible if it contains a statement which:
Identifies the electronic record containing the statement. It gives information about the
particulars of the computer involved in the production of record.
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
16

Section 85C of Indian Evidence Act, 1872

Section 65B of Indian Evidence Act, 1872

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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.
a. The General Issues of Internet Service Providers Liability

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
(ISPs).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 ISPs 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 ISPs 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 ISPs 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:
Dow Jones & Co. Inc. v Gutnick

17

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.
Facts of this Case
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.
The High Court's ruling effectively allows defamation plaintiffs in Australia to
sue for defamation on the internet against any defendant irrespective of their location. "If
17

Decided in High Court of Australia on 10 12 2002 reported by Wikipedia, the free encyclopedia

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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.
Notice and Take Down will be considered in detail below;
Another elusive issue is the debate surrounding Freedom of Expression on the
Internet. The US approach to Freedom of Expression has recently been illustrated in a
case where two high school pupils were arrested for maintaining a website, which had
become notorious in their school. The site compiled the names, telephone numbers,
eating habits, comments on appearances, alleged parental marital problems and alleged
exploits of a considerable number of their female classmates. Ultimately no criminal
prosecution was brought against the youngsters, as the relevant harassment penal
legislation requires there to be direct communication between the accused and the
victim. It was found that the website fell out with the scope of the legislation. Civil

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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.

Some points to consider while reading the following section

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?

b. New Approaches and Legislative Initiatives Addressing the Question of ISP

Liability18
Content Regulation & Defamation
Current thinking on ISP Liability, in relation to web content, is best illustrated by
recent advances in the law on defamation on the Internet. No consideration of ISP
18

www.ibls.com/internet_law visited on 23 03 2008

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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 authors 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 plaintiffs solicitors 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 services
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

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(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 journalists 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.
Internet Service Liability and Intellectual Property Rights
Notice and Take down certainly appears to be the favored model both on this side
of the Atlantic and in the US with regard to instances of Internet based infringement of
intellectual property rights. There have been many instances that have illustrated how
grave a threat the Internet represents to frustrating the workings of IPR; music file
22

Section 10 of Contempt of Court Act, 1981 of US

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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 US Approach The Digital Millennium Copyright Act, 1998

The US has leaded the way in adopting a formulated approach to copyright
enforcement and protection. Following much lobbying by the software and entertainment
industries, two powerful pieces of legislation have been introduced in America aimed at
efficiently dealing with the problem of digital piracy; the Digital Millennium Copyright
Act of 1998, and the No Electronic Theft Act 1997. The cumulative effect of these
Acts is that it is now a criminal offence to circumvent anti-piracy software, which is
incorporated into commercial software, and copyright works provided in digital format.
This is in accordance with Article 12 of the WIPO Treaty, 1996. Moreover, the
manufacturing, sale or distribution of code-breaking devices that may be used to make
illegal copies of software, is prohibited. A measure of balance is achieved in the
legislation, as it is provided that Encryption codes may be broken or cracked when the
purpose of doing so is for research or where such is necessary in order to access or
achieve inter-operability of a computer system. It is also permissible where the purpose
of doing so is to test a computer security system. The Digital Millennium Act deals
specifically with the issue of Internet Service Providers liability vis--vis copyright. The
general rule that an ISP will not be held to be liable for providing access or facilitating
access to copyright infringing material is preserved by this Act.
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

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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:

Convergence of Information Technology & Information Management

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.
Developments in today's IT spectrum (e.g., intranets, push technologies, and
information filtering) have profound social implications, suggesting that IT has moved
beyond data management within organizations and now influences the ways in which
organizational communication takes place. This in turn affects the nature and fabric of
societies and organizations, predicated as they increasingly are upon their information
flows. IT no longer handles raw data, or indeed, just information. IT systems are now
being developed which address the most intangible and unquantifiable yet probably the
most valuable resource of all: knowledge.
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

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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.
Information Technology (IT) as an Agent of Change
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.
We find confluence of disciplines, a conjunction of activities and tasks, and
convergence in media as everything becomes digital, blurring distinctions among visual,
print, audio, and multimedia documents. This conjunction of events, activities, and roles
is even evident in our daily lives. We act in a range of various roles - parent, teacher,
friend, cook, chauffeur, and student - perhaps all in one day and sometimes
simultaneously.
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."
Convergence in the information professions is fairly easy to characterize. It is the
unifying of the professions and professional objectives or functions - as opposed to the
continuing schismatic nature of specialization, or divergence. It is also, through such
unification, the harnessing of technology in particular settings to improve or to create
new activities. Such discussion about the information professions is quite important
because these professions have become distinguishing characteristics of our information
age.
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.
Prasar Bharati Bill, 201024
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

www.indiantelevision.com/indianbrodcast/.../legalresources.htm-The Central government introduced
Prasar Bharati Amendment Bill, 2010, in Rajya Sabha on Tuesday, Aug 31.

24

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(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 VicePresident. 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-thanillustrious 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,

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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.
In March 1996, Sub-Committee of Consultative Committee of Ministry of I&B
headed by Shri Ram Vilas Paswan submitted a Working Paper on National Media Policy.
In view of the Supreme Court judgment the Committee noted that there should be a
regulatory body to oversee both public and private telecasting/broadcasting. The SubCommittee noted that the provisions of the Prasar Bharati Act, which was unanimously

162

passed by Parliament in 1990, should be kept in mind while framing the regulatory
mechanism which should be an independent autonomous authority.
Subsequently Sengupta Committee was set up by the Ministry of Information and
Broadcasting vide a notification dated 28th December, 1995 under the Chairmanship of
Dr. N.K. Sengupta to review the provisions of Prasar Bharati (Broadcasting Corporation
of India) Act, 1990 and to make recommendations regarding the restructuring of Prasar
Bharati. Besides Dr. Sengupta, the other Members are Brig. M.R. Narayanan and Shri
Ved Leekha.
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.
While directing the Government to set up an independent broadcasting authority
that would give access to all interests and groups, the Judges made clear that
indiscriminate privatization and euthanizing public broadcasting would not be acceptable.
"Private broadcasting, even if allowed," the court held, "should not be left to market
forces." This, the Judges said, was because of the evident "danger flowing from the
concentration of the right to broadcast/telecast in the hands of (either) a central agency or
of a few private affluent broadcasters."

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e-Governance and Legal Issues

Impact of e-Governance on Reducing Corruption: A Case Study25

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.
Computerization of land records Karnataka;
The Bhoomi (meaning land) project of online delivery of land records in
Karnataka demonstrates the benefits of making the government records more open so that
citizens are empowered to challenge arbitrary action. It also illustrates how automation
can be used to take discretion away from civil servants at operating levels.

The Department of Revenue in Karnataka has computerized 20 million records of

land ownership of 6.7 million farmers in the state. In the past, under the manual system,
land records were maintained by 9,000 Village Accountants, each serving a cluster of 3-4
villages. Farmers had to seek out the Village Accountant to get a copy of the Record of
Rights, Tenancy, and Crops (RTC). A document needed for many tasks like obtaining
bank loans. Village Accountants were not easily accessible, as their duties entailed
traveling. The time taken by Village Accountants to provide RTCs ranged from 3 to 30
days depending upon the importance of the record to the farmer and the size of the bribe.
A typical bribe for a certificate could range from Rs 100 to Rs 2000. If some details were
to be deliberately written in an ambiguous fashion, the bribe could go up to Rs 10,000.
Land records in the custody of the Village Accountants were not open for public scrutiny.
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.
Bhoomi has reduced the discretion of public officials by introducing provisions
for recording a mutation request online. Farmers can now access the database and are
empowered to follow up. In the Bhoomi project, a printed copy of the RTC can be
obtained online by providing the name of the owner or the plot number, at computerized
land record kiosks in 180 taluk offices for a fee of Rs 15. A second computer screen faces
the clients to enable them to see the transaction being performed. A farmer can check the
status of a Mutation Application on a Touch Screen provided on a pilot basis in three of
the computerized kiosks. Operators of the computerized system are made accountable for
their decisions and actions by using a bio-login system that authenticates every login
through a thumbprint. A log is maintained of all transactions in a session. In the next
phase of the project, all the taluk databases will be uploaded to a web-enabled central
database.
RTCs 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.

The purpose of implementing e-governance is to enhance good governance. Good

governance is generally characterized by participation, transparency and accountability.

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.
e Government for Developing Countries: Opportunities and Challenges26
Introduction
The explosion of digital connectivity, the significant improvements in
communication and information technologies and the enforced global competition are
revolutionizing the way business is performed and the way organizations compete. A
new, complex and rapidly changing economic order has emerged based on disruptive
innovation, discontinuities, abrupt and seditious change. In this new landscape,
knowledge constitutes the most important factor, while learning, which emerges through
cooperation, together with the increased reliability and trust, is the most important
process (Lundvall and Johnson, 1994). The competitive survival and ongoing sustenance
of an organization primarily depend on its ability to redefine and adopt continuously
goals, purposes and its way of doing things.

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.

The potential for e-Government in developing countries, however, remains

largely Unexploited, even though. ICT is believed to offer considerable potential for the
sustainable development of e-Government. Different human, organizational and
technological factors, issues and problems pertain in these countries, requiring focused
studies and appropriate approaches. ICT, in general, is referred to as an enabler, but on

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).

e-Government Literature Review

Paradigm Shifts in the Public Sector
The advent of the Internet, digital connectivity, the explosion and use of ecommerce 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)

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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.

e-Government Web of Interrelationships

The target of e-Government encompasses four main groups: citizens, businesses,
governments (Other governments and public agencies) and employees. The electronic
transactions and Interactions between government and each group constitute the eGovernment web of relationships and the respective four main blocks of e-Government,
those are:
1. Government to Citizens (G2C)
2. Government to Business (G2B)
3. Government to Government (G2G)
4. Government to Employees (G2E)

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:

1) Government to Citizen: deals with the relationship between government and

citizens. e-Government allows government agencies to talk, listen, relate and
continuously communicate with its citizens, supporting, in this way, accountability,
democracy and improvements to public services. A broad array of interactions can be
developed ranging from the delivery of services and the provision of welfare and health
benefits to regulatory and compliance oriented licensing (Riley, 2001). G2C allows
customers to access government information and services instantly, conveniently, from
everywhere, by use of multiple channels (PC, Web TV, mobile phone or wireless device).
It also enables and reinforces their participation in local community life (send an email or
contribute to an online discussion forum).

2) Government to Business: consists of the electronic interactions between

government agencies and private businesses. It allows e-transaction initiatives such as eprocurement and the development of an electronic marketplace for government (Fang,
2002). Companies everywhere are conducting business-to-business e-commerce in order
to lower their costs and improve inventory control. The opportunity to conduct online
transactions with government reduces red tape and simplifies regulatory processes,
therefore helping businesses to become more competitive. The delivery of integrated,
single-source public services creates opportunities for businesses and government to
partner together for establishing a web presence faster and cheaper.

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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.

4) Government to Employees: refers to the relationship between government and

its employees.G2E is an effective way to provide e-learning, bring employees together
and to promote knowledge sharing among them. It gives employees the possibility of
accessing relevant information regarding: compensation and benefit policies, training and
learning opportunities, civil rights laws, etc. G2E refers also to strategic and tactical
mechanisms for encouraging the implementation of government goals and programs as
well as human resource management, budgeting and accounting. The full exploitation
and implementation of these complex webs of inter-relationships requires three main
application domains for e-Government:

e-Administration for automation and computerization of administrative tasks

and for realization of strategic connections among internal processes, departments and
functions.
e-Citizens and e-Services to realize connections and interrelationships among
governments and citizens and to deliver automated services.
e-Society to enable relationships and interactions beyond boundaries, among
public agencies, private sector and civil community in general.
These three application domains should be considered as overlapping and eGovernment can be found in the overlapping area of these three application domains,

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demonstrating the complexities and heterogeneities needed to be handled for assuring its
success.

e-Government for Developing Countries

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.
Recognizing the power of ICTs, many developing countries, assisted by
international Organizations for development, have started building and encouraging estrategies and initiatives to address a wide range of economic, social, technological,
infrastructural, legal and educational issues.
G8 on Digital Opportunities Task Force and UN Task Force on ICT Access
(Digital Opportunity Task Force, 2002) have evidenced e-Government as one of the

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priorities based on the decisive role it would play for ICT accessibility. Consequently, eGovernment 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.
An e-Government benchmark study conducted by the American Society for
Public Administration (UNPA & ASPA, 2001) aimed to categorize the progress made by
developed and developing countries in developing an online presence on a five stages
scale:
Emerging stage; Enhanced stage; Interactive stage; Transactional stage and
Seamless stage, revealed that nearly all 32 countries at the Emerging Presence level were
among the worlds least developed nations, characterized by static and insufficient
information that is infrequently updated, few interactive features, and non-existent online
services. There were, however, several cases of developing countries that were at the
Enhanced Presence stage and Interactive Presence stage, demonstrating their
predisposition for e-Government success. The Transactional stage and in particular the
Seamless stage were seen as very distant points for both developed and developing
countries, with a few exceptions (Singapore, UK, etc)

The prevalence of stages 1 and 2 among developing countries can be explained by

the fact that the adaptive challenges of e-Government go far beyond technology they call
for organizational structures and skills, new leadership forms, and the transformation of
public-private relationships.

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e-Government case studies in 9 developing countries were performed and the

results obtained are presented in the following sections. What the experience with eGovernment 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
Benefits assured by use and application of e-Government in developing countries
are the same as those in developed countries. The differences between these two groups
could result from the fact that many potential benefits of e-Government are not reaped by
developing countries as consequence of their limited use of e-Government.28
Cost Reduction and Efficiency Gains
1. Cost reduction and efficiency gains
2. Quality of service delivery to businesses and customers
3. Transparency, anticorruption, accountability
4. Increase the capacity of government
5. Network and community creation
6. Improve the quality of decision making
7. Promote use of ICT in other sectors of the society
Researchers agree that ICT has considerable potential to contribute to efficiency
gains and cost reductions for private organizations. Furthermore, these benefits constitute
a major aspect of e-Government initiatives. Putting services on-line substantially
decreases the processing costs of many activities compared with the manual way of
handling operations. For example, it costs the US Inland Revenue Service $1.60 to
process a paper tax form, but only $0.40 to process an electronic form (Al-Kibsi et al.,
28

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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.
Example:

In

Beijings

Business

e-Park,

there

is

new

system

(www.zhongguancun.com.cn) that applies the latest computer and Internet technologies

to improve the efficiency and responsiveness of government. If businesses choose to use
this system, they can reduce the time required for gaining approval for specific
applications from 2-3 months to few days. Moreover, data can now be submitted on line,
greatly increasing the quality of service for customers (Lin et al., 2001).
Quality of Service Delivery to Businesses and Customers
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

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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.
Transparency, Anticorruption and Accountability
e-Government helps to increase the transparency of decision-making processes. In
many cases e-Government offers opportunities for citizens to directly participate in
decision-making, by allowing them to provide their own ideas and suggestions in forums
and on- line communities.
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.

Example: The Central Vigilance Commission (CVC) in India started an initiative

to create a website with the objective of reducing corruption and increasing transparency
by sharing a large amount of information related to corruption with citizens. The CVC
website communicates directly with the public through messages and speeches to bolster
confidence in the institution, informs the public about its efforts in fighting corruption,
and makes public the names of officers from the elite administrative and revenue services
against whom investigations have been ordered or penalties imposed for corruption.
Members of the public are highly encouraged (mainly by rewards) to make their
complaints and to provide information against a public servant about taking of bribes in
order for the commission to undertake the necessary anticorruption actions to eliminate
bribery and to increase the transparency of rules, procedures and service delivery.
Increase the Capacity of Government

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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, drivers 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.

Network and Community Creation

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

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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.

Example: Columbias government portal is the entry point to every government

agency website in the country, allowing citizens to search for and consult government
information and to e- mail government representatives either to complain about problems
or to make suggestions. A specific unit, the Government online Network, composed of
eight people trained in the technology of government portals, was created for realizing
Columbias website and for advising, supporting, training and monitoring the remainder
federal government. Financial support was provided by the UNDP, while the technology
and experience were provided primarily by a partnership with two private companies:
Government Works.
Improve the Quality of Decision Making
Community creation, forums, continuous interaction and communication between
government and its citizens contribute further to the decision making process. By means
of active participation in political and government discussions, citizens can contribute
their own ideas, and share their knowledge and information. This will in turn lead to
building trust in government and improving the relationships between the government
and the governed. The OECD argues that the strengthening relationship between

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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.
Example: The CRISTAL initiative of Argentinas government was launched in
order to disseminate information regarding the use of public funds, including information
about the amounts of money for different programs, financial and employment data,
public debt account including terms, guarantees, interest costs, and the outstanding tax
and customs obligations of private companies. Its primary goal is to inform
customers /citizens, to disseminate content and information, empowering customers to
exercise more control over their political representatives. In their web site they also
provided a specific section where users can send their questions, comments and
suggestions for further improvements.
Their feedback allows the government to adjust the content and information, to
customize the information and to reorganize itself around customers needs and
requirements.

Promote Use of ICT in Other Sectors of the Society

Continuous interaction and communication between government and its
stakeholders contribute to the creation of awareness about the potential contribution of
ICT to local community activities. In this way, e-Government plays a vital role, not only

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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-tobusiness 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.
Example: In India, the Gyandoot project is a government-to-citizen intranet
project which offers numerous benefits to the region, to citizens and to the community in
general. The goal of the project has been to establish community owned technologically
innovative and sustainable information kiosks in a poverty-stricken rural area of Madhya
Pradesh. The benefits assured by this intranet system have increased the awareness of
ICT importance and have spin off other IT initiatives and programs, such as: the creation
of new private ICT training institutions; a high level of student enrolment about 60%;
parliament has allocated resources to set up other kiosks in schools and to develop new
models for e-education; Indira Gandhi National Open University has opened a study
center for undergraduate and postgraduate courses on computer applications; the
government has instituted a cash award to motivate ICT projects.

Challenges for a Successful Implementation of e-Government Initiatives

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,

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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
ICT Infrastructure29 is recognized to be one of the main challenges for eGovernment. Internetworking is required to enable appropriate sharing of information
and open up new channels for communication and delivery of new services (Tap Scott,
1996). For a transition to electronic government, an architecture, that is, a guiding set of
principles, models and
1. ICT infrastructure (e-readiness, computer literacy, telecommunication
equipment)
2. Policy issues (legislation)
3. Human capital development and life long learning (skills,capabilities,
Education, learning)
4. Change management (culture, resistance to change)
5. Partnership and collaboration (public/private partnership, community and
network creation)
6. Strategy (vision, mission)
7. Leadership role (motivate, involve, influence, support) standards, is needed.
Many developing countries suffer from the digital divide,

and they are not able to

deploy the appropriate ICT infrastructure for e-Government deployment. The digital
divide between richer countries and developing ones is large with high-income
economies having 416 personal computers per 1,000 people and low-income economies
only 6 per 1,000 (World Bank, 2003).
The development of basic infrastructure to capture the advantages of new
technologies and communications tools is essential for implementing e-Government.
Different access methods, such as remote access by cellular phones, satellite receivers,
29

Article by Richard N Katz-ICT Infrastructure-A Driver of Change published by Educause Review

Journal-ER Volume 37-2002

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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.
Example: In the Gyandoot project, the poor infrastructure facilities constituted
one of the major problems encountered in developing and implementing the project.
Local rural telephones infrastructure did not operate with optical fiber cable, and in
consequence there were initially significant reliability problems. This caused a decrease
in the motivational level of kiosk managers to participate in the project. Substantial
problems were encountered with literacy and skills to use new technological tools and
applications. To ensure the success and the sustainability of the project, the Indian
telecommunications department undertook actions to upgrade the level and quality of
connections, as well as study alternative solutions (such as wireless applications) to cover
those zones where telephones were not available. In addition some basic training was
provided to people who were directly engaged in management and maintenance of
kiosks.
Policy Issues
Processing of e-Government principles and functions requires a range of new
rules, policies, laws and legislative changes to address electronic activities including
electronic signatures, electronic archiving, freedom of information, data protection,
computer crime, intellectual property rights and copyright issues. Dealing with eGovernment means signing a contract or a digital agreement, which has to be protected
and recognized by a formalized law, which protect and secure these kinds of activities or
processes. In many developing countries, ebusiness and e-Government laws are not yet
available. Establishing protections and legal reforms will be needed to ensure, among
other things, the privacy, security and legal recognition of electronic interactions and

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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.
Example: In the e-procurement system initiative in the Philippines, which aimed
to streamline the purchase of goods and services for a large number of government
departments and agencies, a number of actions were undertaken to change the legal
framework and to issue new rules and policies that govern and regulate electronic
commerce and interactions.
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.

Human Capital Development and Life Long Learning

A major challenge of an e-Government initiative is the lack of ICT skills in the
public sector. This is a particular problem in developing countries, where the chronic lack
of qualified staff and inadequate human resources training has been a problem for years.
The availability of appropriate skills is central for successful e-Government
implementation. e-Government requires hybrid human capacities: technological,
commercial and management. Technical skills for installation, maintenance, designing
and implementation of ICT infrastructure, as well as skills for using and managing online
processes, functions and customers, are necessary. To address human capital
development issues, knowledge management initiatives are required focusing on staff
training, seminars, workshops in order to create the basic skills for e-Government
handling30.
Example: In Beijings Business e-Park initiative, a key step in project
implementation was the education programme. Firstly government officers learnt to do
30

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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 doesnt 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
doesnt 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:
Change Management Approach and Management of Resistance to Change.
Change Management approach refers to the change management procedures established
within Organizations. DeLisi (1990) identifies culture as the primary driver of strategic
organizational change. Being aware of an organizations culture is already a big step
towards a higher capacity to change (Hassard and Sharifi, 1989). Hierarchy is the most
traditional of cultural values of a government bureaucracy, in many ways its defining
feature. In particular, intranets and the sharing of information throughout organizations
can challenge hierarchies and can only really benefit an organization that develops a
more networked approach; ICT is distinguished by its network character (Dutch ICT and
Government Advisory Committee, 2001).

31

www.unapcict.org/ecohub/resources/convergence visited on 02 01 2009

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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.
Example: It is relevant to mention here the experience in India of the Vijaywada
Online Information Center (VOICE). The main objective of this initiative was to realize
an electronic system which enables the delivery of municipal services such as building
approvals, status certificates, and handles the collection of different types of taxes.
Resistance to change from public staff was one of the major problems encountered in this
endeavor. The revenue department staff was those who caused most problems as they
stood to lose the income received from bribes. Some staff feared job losses, some others
were reluctant to learn and use the new technology and new work practices. Several
meetings and performance reviews were organized to persuade staff to become
accountable and to motivate them for better performance.
Partnership and Collaboration
Collaboration and cooperation at local, regional and national levels, as well as
between public and private organizations, are important elements in the e-Government
development process. Nevertheless, collaboration and cooperation are not simple to
realize. Governments often exhibit considerable resistance to open and transparent
systems as they try to preserve their authority, power and hierarchical status. Citizens
distrust their governments, especially where there has been a history of dictatorship,
political instability or large-scale corruption. To ensure that the public and stakeholders
will be partners in the e-Government effort, it is important to try to build trust in
government. Collaboration between the private (assuming that there is a private sector)
and public sectors is needed too, in order to provide resources, skills and capabilities that
the government lacks. For example, the ICT private sector is able to support government
with technical skills and infrastructure; meanwhile, universities will provide the required

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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).
Example: The initiative of the State of Andhra Pradesh32 in India to computerize
the 1,124 administrative units, called mandals, in order to realize online delivery of
services, required strong coordination and collaboration between various departments.
Different databases were handled and managed by different departments, one from the
revenue department, one from the national informatics department, another from the
social welfare department. These departments were geographically spread over an area of
275,000 sq. kms, but the timeless delivery of services required the instant collaboration,
communication and interaction between them.
Strategy
One of the main challenges for an e-Government project is the establishment of
an appropriate and context tailored strategy. Every project or initiative needs to be rooted
in a very careful, analytical and dynamic strategy. This seems to be a very difficult task,
requiring a focus on many aspects and processes, a holistic vision, long-term focus and
objectives. Many public institutions limit their activities to a simple transfer of their
information and services online without taking into consideration the re-engineering
process needed to grasp the full benefits.
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

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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.
Example: A critical point for the initiative of the government of Colombia to
realize an e-Government portal was the definition of strategy33 and actions to be pursued.
Initially the government created a specific unit to develop the strategy, objectives, and
plan for actions and afterwards to assist and monitor the work progress. A Connectivity
Agenda was formulated which specifies the key objectives of the initiative, the strategic
framework for subsequent actions, and different projects to undertake. The Agenda
established an action framework that guided any plan in Colombia related to ICT
development and electronic applications, thus allowing a rational and coordinated
investment effort.
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 eGovernment 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

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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.
Example: Chiles government procurement e-System34 initiative was seen as a
technocratic solution. As a consequence, the pledge of strong political support and top
leadership was a critical issue. The political support through exposure in the press
outlining the benefits of the initiative in terms of transparency, efficiency and ecommerce capacity was sought as vital by organizing staff. Further leadership and
support was provided by lobbying political parties, interest groups, private sector
advocates and information technology companies

In the new economy, underpinned by revolutionary changes in science and

technology, information and knowledge has become a key factor in economic
competitiveness. Developing countries must pursue a more active role in the formulation
of national policies and strategies to promote the information economy, to reap huge
benefits in terms of economic and social growth/development. e-Government is believed
to play a fundamental role to this end. It does not only facilitate market- led initiatives but
it also plays a major role in initiating the process of capability building and in
coordinating the actions of a large number of interested stakeholders (Mansell and Wehn,
1998). It offers the potential of reshaping the public sector activities and processes,
building relationships between citizens and the government, enhancing transparency,
increasing government capacity and providing a voice for those outside the
government. Nevertheless, the ability of developing countries to reap the full benefits of
e-Government is limited and is largely hampered by the existence of many political,
social and economic hindrances.
But, despite the barriers and impediments they experienced, the reference cases
provided here show that developing countries should and could take advantages of the
ICT revolution. The case analysis reveals some important tips to consider for a successful
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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 countrys 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.
Stimulate collaboration and coordination among government departments and
agencies to increase efficiency and effectively in process handling. Address challenges
and opportunities in strong partnership with private organizations, major donors, research
institutions and universities, and support cross fertilization of ideas, solutions and
Knowledge. Invest in human development the success of e-initiatives depends largely
on human skills and capabilities. Accordingly, education and training initiatives must be
considered as priority actions. Staff needs to be trained to handle new processes and
activities; they have to be given incentives (not necessarily monetary) to prevent the brain
drain of skilled people; and they need to feel part of the organization by engaging in the
decision making process. Some basic training needs necessary to be provided to
community members, in general, in order for them to be able to use new facilities for
accessing electronic information and services.
Show sensitivity to local realities by assessing and evaluating different
alternatives, ways and solutions for digital government development including mobile

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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.
Prepare to manage knowledge and change - Establish knowledge management
processes and tools to ensure storage, usage, easy retrieval of strategic information and
knowledge for better and fast decision-making process, for further adaptation and
development, for realizing the necessary improvements and always search for better and
innovative value added services and solutions.
The mechanism of e-courts facilitate the filing of applications, arguments through
the electronic mode, submission of documents and evidence using ICT, etc. The ECourts system of Singapore is a trend-setter in this direction. However, the existing
Electronic Infrastructure Development Strategy of India is deficient and needs
rejuvenation. This is happening because the Legislature and Executives are not versed
with the Litigation and the Legal Fraternity is never consulted while making TechnoLegal Laws.

To break this trend Perry Law Voluntarily provided its expert

recommendations and suggestions regarding the proposed IT Act, 2000 amendments, the
proposed Broadcasting Bill, 2006, Techno-Legal and ICT Security Matters, ICT Strategy,
Policy and Trends in India, etc. at National and International level.

These

recommendations and suggestions were highly appreciated and acknowledged at both

National and International level. Howsoever, India has still to cover a long distance to
ripe the benefits of ICT. The problem seems to be lack of E-readiness on the part of
India. It is unfortunate to see the placement of India even below Barbados when it comes
to E-readiness. The Indian Government in general and the Supreme Court e-committee

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in particular must use the model of Collective Expertise as Originally propounded and
adopted by Perry Law.36
The Techno-Legal Challenges and their solutions
The establishment of e-courts in India requires tackling of certain Techno-Legal
Challenges. These include;
a) Need of Techno-Legal Knowledge base in India.
b) More Techno-Legal Platforms like PTLB TM/SM.
c) Appropriate Cyber Law in India.
d) Training of Judges and Lawyers in Cyber Law.
e) Ensuring ICT and Cyber Security in India.
f) Introduction of the culture of ADR in India.
g) Use of Online Dispute Resolution in India (ODR).
h) Need of Techno-Legal Education in India.
i) Need of a Cyber Law Database in India, etc.

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 einfrastructure that is capable of meeting the needs of contemporary society. Perry Laws
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 Elearning Services, Due Diligence Compliance, Techno-Legal Audit, E-commerce, Egovernance, 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 TechnoLegal and ICT related expertise for matters pertaining to the establishment of e-courts in
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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.

Some of the International and National initiatives, collaborations and coordinating

efforts of Perry Law, PTLB TM/SM and ICT Help Desk of Perry Law in this regard are
as follow;
a) e-Governance and Justice in India
b) Online Dispute Resolution in India
c) Judicial Reforms of Justice through use of ICT
d) Enforcing Rule of Justice through e-Governance
e) Dataquest-Changing the Order
f) e-judiciary and e-lawyering in India
g) Training of Indian Judiciary: An interview.

At the same time Perry Laws 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 Ecourts 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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