1. COMPETITION - McCarthy Tétrault

mentioned above, each of the parties should have entered into a
legally binding agreement to act as a single unit in managing the
matters of the applicant company.
To prevent control by foreign companies and to ensure that the spirit of the
uplinking norms is maintained the following requirements have also been
brought in:
DISCLOSURES
At the time of filing of application, the applicant is required to make full
disclosure of Shareholders Agreements, Loan Agreements, and such other
Agreements that are finalized or proposed. Any subsequent changes
having bearing on these agreements must be disclosed to the Ministry of
Information and Broadcasting (the "I&B") within 15 days.
The applicant is required to provide the names and details of (i) proposed
directors who are not resident Indians, (ii) any foreigners/NRIs to be
employed or engaged by the company as either consultants (or in any
other capacity) for more than 60 days in a year, or as regular employees.
Prior permission for alteration of shareholding pattern and agreements:
Company must obtain prior permission from I&B before effecting any
alteration in the foreign shareholding patterns and the shareholding of the
largest Indian shareholders, or any alteration in any other Agreements.
THOSE IN CONTROL SHOULD BE RESIDENT INDIANS
At least 3/4th of the Directors of the company and all key Executives and
Editorial staff, CEO of the applicant-company, and/ or head of the channel
are required to be resident Indians.
REPRESENTATION ON BOARD
The representation on the Board of Directors of the company should as far
as possible be proportionate to the shareholding.
Applicant company to retain control:
• all appointments of key personnel (executive and editorial) are to be
made by the applicant company without any reference from any other
company, Indian or foreign.
• the applicant company should have complete management control,
operational independence and control over its resources and assets
and must have adequate financial strength for running a news and
current affairs TV channel.
These safeguards appear to have been considered, in the wake of a
controversial uplinking application, by STAR News. STAR News and its
group companies are facing allegations that a foreign company is using
"shell companies" and "dummy investors" to exercise proxy editorial and
financial control. STAR News, whose application is pending approval, has
been given time until 28th September 2003 to comply with the new
Guidelines. Currently, Star is negotiating with prospective local partners to
finalize the dominant Indian partner as required by the new Guidelines and
have sought an extension of the compliance deadline.
The Government has also decided in principle to rework the print medium
FDI norms, so as to bring them at par with the electronic medium,
wherever necessary.
For more information please contact: vaibhav@nishithdesai.com
11. PRIVACY
ARGENTINA
COURTS ADDRESS THE USE
OF LABOR E-MAIL ACCOUNTS
The Secretariat of Communications, relying upon its Executive Power, is
currently working on a project bill identified as Legal Protection of E-mails
(the "Project"). Section 3 of the Project establishes that:
• e-mail accounts provided by an employer for an employee as a
consequence of a labor relation shall be considered to be the
employer's property, and
• the employer shall have the right to access and control the information
of such e-mail accounts, if the terms and conditions of use and access
have been notified to the employee.
Two labor courts recently addressed the issue of e-mail accounts provided
by an employer for an employee, and ruled under the same line of
reasoning as the Project. However, the courts arrived at different results
due to the particular facts and evidence of each case.
In the first case, Labor Court of Appeals 9 held that the termination of the
labor relation of an employee who had used the labor e-mail account for
personal benefits was not a reasonable cause to fire the employee. The
court took into account the fact that the employer had not notified or
communicated to the employee the terms and conditions of use and
access of the labor e-mail, as suggested by the Project. Accordingly, the
employee's use of the e-mail account for personal matters was not
sufficient to warrant a termination of employment.
On the other hand, in a separate case, a First District Labor Court held that
reasonable use of labor e-mail did not include receiving and forwarding
pornographic texts or images. Here, the Court affirmed that the employee
had been advised on several occasions about the labor e-mail policies,
which opposed the employee's conduct.
In spite of the different results, both courts coincided on the need to notify
or communicate labor e-mail policies to employees, while emphasizing the
validity and enforceability of those policies, as well as the employer's right
to control the e-mail accounts.
For more information please contact: gonzaloz@mille.com.ar
ITALY
NEW CODE FOR PRIVACY PROTECTION
On 30th June 2003, the Italian Council of Ministers finally approved a new
personal data protection code (the "Code") that will take effect on 1st
January 2004.
The new text unifies fragmented provisions from amended and integrated
Law 675/1996, the Italian framework on personal data protection, which
introduced several innovations in line with the Personal Data Protection
Authority case law ("Garante per la protezione dei dati personali"), and
European Directive 2000/58, regarding privacy and the Internet. The body
of rules maintains an opt-in regime. However, the notification system
represents an important innovation. While the current regime requires
every party that is not specifically exempted to provide notice to the
Authority, the new Code reverses the approach by enumerating specific
cases that will require notification. Further, the Code, in line with the
European trend, reduces to thirty months the maximum conservation term
ISSUE 22 SEPTEMBER – OCTOBER 2003 10