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CYBER CRIM E

LAW A ND PRA CTICE

BACKGROUNDER

(i)
November 2016

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Printed at Samrat Offset Works/500/November 2016


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PREFA CE

“As t he w orld is increasingly int erconnected, everyone shares t he


responsibility of securing cyberspace.” - New t on Lee
The prologue of Inf ormat ion and Communicat ion Technology (ICT) has paved
t he w ay f or an advanced and sw if t communicat ion f or t he civilizat ion. At
pet i t e, t h is avant -g arde d aw n of t h e ICT has repl aced t he t radi t i on al
communicat ion channels leading t o an ease, sw if t ness, convenience and
expediency in our regular t ransact ions. Along t he w ay, it has enhanced t he
modus operandi of carrying out t rade and commerce and has indeed escort ed
the trade and commerce to reach the higher indices of grow th and development.
How ever, t here is a f lip side, w it h an ease in communicat ion and elevat ed
t rade and commerce, t he crimes commit t ed t hrough the means and t he end of
ICT commonly know n as Cyber Crimes have also risen exponent ially leading t o
proport ionat ely expanding t he dimensions of Cyber Law.
The increasing number of incident s, dif f erent met hods and modes employed
in commit t ing such speckled crimes t hrough t he use of comput ers has raised
alarm bells t o provide f or a colossal legal prot ect ion including t he provision
f or punishments f or t he use of ICT f or illegal purposes. Indeed, t his specialized
f ield of law has been ident if ied t o regulat e t he use of ICT w it h t w o main
object ives viz., promot ing t ransact ions w it h t he use of ICT and prevent ing t he
unaut horized and illegal use of ICT.
This Book t it led “Cyber Crime: Law s and Pract ices” is an ef f ort made t o explain
t he nuances of cyber crimes, including t ypes of Cyber Crimes along w it h some
real t ime cases t hat recent ly happened in t he Indian Jurisdiction. The book also
analyses t he present posit ion of Indian law on t he subject and recommends
some amendment s needed in t he present legal set -up f or an enhanced legal
prot ect ion at par w it h t hose in ot her jurisdict ions.
I commend the dedicated efforts put in by Dr. Gargi Rajvanshi, Assistant Director,
ICSI in preparing the manuscript of thispublication under the guidance of Ms. Sonia
Baijal, Director, Professional Development, Perspective Planning & Studies, ICSI. I
convey my t hanks t o Mr. Nit in Satija, LexisNexis India f or vett ing t he publicat ion.
I sincerely believe t hat t his book w ill be of ut most ut ilit y and int erest t o t he
prof essionals and w ould act as a valuable academic aid f or t he scholars on t he
subject .

Place : New Delhi (CS M am t a Bin an i )


Date : November 04, 2016 President
The Inst it ut e of Company Secret aries of India

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CONTEN TS

Ch ap t er – 1
In t r o d u ct i o n 1
1.1 Int roduct ion 1
1.2 Cyber Crime: M eaning and Def init ion 4
1.2.1 M eaning of Crime 5
1.2.2 M eaning of Cyber Crime 6

Ch ap t er – 2
Cl assi f i cat i o n o f Cy b er Cr i m es 9

2.1 Taxonomy of Cyber Crime 9


2.2 Classif icat ions of Cyber Crimes 10
2.2.1. Cyber Crimes against Persons 10
2.2.2. Crimes against Persons’Propert y 14
2.2.3. Cybercrimes Against Government 18
2.2.4. Cybercrimes Against Societ y at large 20
2.3 Causes of Cyber Crime 21
2.4 Impact and Ef f ect s of Cyber Crimes 22
2.5 Cyber Crime: Some Landmark Occurrence 25
1. Of f icial Website of M aharasht ra Government Hacked 25
2. Of f icial Webist e of IRCTC Hacked 26
3. CBI Websit e Hacked 26
4. ICICI- Pune Bank Fraud case 27
5. Pune Cit ibank M phasis Call Cent er f raud 28
6. Parliament at t ack case 28
7. Andhra Pradesh t ax case 29
8. Insult ing Images of Warrior Shivaji on Google - Orkut 29
9. India's First ATM Card Fraud 30
10. Chennai’s Violat ion of Sof t w are Terms 32
11. Napst er Case 32
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Ch ap t er – 3
In f o r m at i o n Tech n o l o g y Law : A Bi rd ’s Ey e Vi ew 33

3.1 Cyber World vis-a-vis need of Legal Prot ect ion 33


3.2 Inf ormat ion Technology Act , 2000: A Beginning 34
3.2.1 Object ives of Inf ormat ion Technology Act , 2000 35
3.3 Scope of Inf ormat ion Technology Act , 2000 36
3.4 Applicabilit y of Inf ormat ion Technology Act , 2000 36
3.5 Inf ormat ion Technology Act , 2000: A Snapshot 37
3.6 Inf ormat ion Technology (Amendment ) Act, 2008 39
3.7 Recompense of Inf ormat ion Technology Law 40
3.8 Limit at ion of Inf ormat ion Technology Law 41
Ch ap t er – 4
Leg al Pr o t ect i o n ag ai n st Cy b er Cr i m es 42
4.1 Criminal Liabilit ies under Inf ormat ion Technology Act , 2000 42
4.2 Common Cyber Crimes and Applicable Legal Provisions:
A Snapshot 71
4.3 Civil Liabilit ies under Inf ormat ion Technology Act , 2000 73
4.4 Civil Liabilit y f or Corporat e: 79
4.5 Cyber Crimes under IPC and Special Law s 80
4.5.1 The Indian Penal Code, 1860 80
4.5.2. Cyber Crimes under t he Special Act s 81
Ch ap t er – 5
Cy b er Cr i m e: Lan d m ar k Ju d g em en t s i n In d i a 82
Ch ap t er – 6
Cy b er Law s: Recen t Tren d s 129
Ch ap t er – 7
Co n cl u si o n an d Reco m m en d at i o n s 140
7.1 Cyber Law : A Need t o Ret ake 140
7.2 Recommendat ion 140
En d No t es 148

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Chapt er 1

In t r o d u ct i o n

1.1 In t r o d u ct i o n
The daw n of Inf ormat ion and Communicat ion Technology
(‘ICT’ i n sh o r t ) h as w i t n essed an em er g en ce o f a
revolut ionised t ransf ormat ion in t he f orm of advancement
and development of t he civilized societ y. ICT has gradually
rep laced t h e co nven t ion al syst ems of communicat ion,
aut hent icat ion and submission. Alongside, it has creat ed
p ace, ease, sw if t ness an d con ven ien ce in con clu din g
transactions. Thus, it may not be w rong to say that wit h such
an increasing pace of use of ICT, t he World is get t ing shrunk
like a palm. This is also cont ribut ing t ow ards a const ant
growth of our society in almost all imperative sect ors. Among
ot hers t hings, t he businesses t oo are going global w it h t he
prospect of ease and sw if t ness rendered by t he ICT.
The advancement s made by t he modern t echnology have
f acilit at ed t he communit y t o develop and expand t heir
communicat ion net w orks t hus enabling f ast er and easier
net w orking along wit h inf ormation exchange. In short , t he
ICT has shaped a commendable plat f orm f or t he societ y
enabling it t o grow by leaps and bounds.
In t he w orld t oday, technology has become an essent ial part
of our day to day lif e and has virt ually got imbedded int o it .
Wit h t he expansion of use of t echnology in almost every
sphere of human lif e, t here is virtually no room lef t f or us t o
t h i n k o f a li f e w i t h o u t t h e b lessi n g s o f t ech n o lo g y.
Fort uit ously, India is also advancing in t he mat t er of use of
ICT and at a pace w hich is helping t o st ave of f st agnat ion.
UN Int ernat ional Telecommu nicat ions Union’s f lagship
1
2 Cy b er Cr i m e - Law an d Pr act i ce

annual measuring t he Information Society Report states that


globally 3.2 billion people are now online, representing 43.4
per cent of t he w orld’s populat ion, w hile mobile-cellular
subscriptions have reached almost 7.1 billion worldwide, with
over 95 per cent of t he global population now covered by a
mobile-cellular signal 1.
As per t he report published in The Indian Express2, India has
been ranked 131 out of 167 nat ions on a global index t hat
measures t he level of Inf ormat ion and Communicat ion
Technology access, even as t he number of households w it h
a comput er and internet connection has increased t o a good
ext ent in t he count ry over t he last f ive years.
Everyone is get t ing increasingly dependent on consist ent
access and accuracy of t hese communicat ion channels. The
int ernet users have increased signif icant ly especially in t he
last 15 years. Dat a3 show s t hat presently around 40% of t he
World Populat ion has an int ernet connect ion. In 1995
how ever, it w as less t han one percent of t he present users
of internet and t oday t here are more than 3 billion int ernet
users all over t he World.
As per t he report s of Int ernet World St at 4, af ter China, India
has t he 2nd largest number of int ernet users in t he World
w it h more t han 1 billion users as on June 2016. The Int ernet
penetrat ion in India is 36.5% of the overall populat ion and
t he grow t h t hat it has regist ered has seen a remarkable
grow t h in t he last one decade.
This clearly in d icat es t h at t he imp act o f In f ormat io n
Tech n o l o g y i s ver y p r o f o u n d . Bo t h So ciet y an d t h e
Technology are operat ing in a w ay so as t o harmonize w it h
the pace of each other’s grow th. As the World is developing,
more t echnology is emerging w it h each passing day and
t hus t here is more development t aking place in t he societ y.
All t he f acet s of human lif e including educat ion, healt h,
ent ert ainment and communicat ion are being influenced by
and have been impact ed by t he advent of t he Inf ormat ion
and Communicat ion Technology.
This w ay it is serving w it h several advant ages like great er
Cy b er Cr i m e - Law an d Pr act i ce 3

ef f iciency, increased communicat ion channels t hrough


email, d iscu ssi o n g ro u p s an d ch at ro o ms, b en ef icial
mot ivat ional inf luence on learning and know ledge, e-
governance and cit izens cont ribut ion, expanding global
business and alike.
Wit h boon comes t he bane and t hus t he World of ICT is no
except ion t o t his rule. Along w it h abundant opport unit ies
t hat it has brought about , t here are also some challenges
t oo. Broadly speaking, it has posed cert ain major concerns
like privacy threat, over riding cult ural impact , more reliance
on technology, boycot t of societ al engagements, comput er
virus, malw are, spam phishing and many more. One of t he
major challenges in this era of ICT is of an increasing number
of cyber crimes t aking place in t he World t oday.
The t remendous grow t h in t he f ield of ICT coupled w it h an
increased frequency of use of int ernet for dif ferent activities
has also given rise t o several mischievous act ivit ies t aking
place in t he f orm of Cyber Crimes. To put in a layman’s
lan g u ag e, Cyb er Crime is a t ech n o lo g y b ased cri me
commit t ed by t he t echnocrat s.
In a recent data5 published, it is stated that “with increasing
mobile and internet penet ration in the country, cyber crimes
have also increased proport ionat ely. Bet w een 2011 and
2015, more t han 32000 cyber crimes w ere report ed across
t he count ry. M ore t han 24000 of t hese cases are regist ered
under t he IT Act and t he remaining under t he various
sect ions of IPC and ot her St at e Level Legislat ions (SLL).”
As per the Dat a given by t he report of Nat ional Crime Report
Bureau 6, a t ot al of 7,201 cases w ere regist ered under t he IT
Act during t he year 2014 as compared t o 4,356 cases during
t he previous year (2013), show ing an increase of 65.3% in
2014 over 2013. 77% (5,548 cases) of t he t ot al 7,201 cases
under t he IT Act w ere comput er relat ed of f ences (under
sect ion 66A, 66B, 66C, 66D and 66E of IT Act ) f ollow ed by
10.5% (758 cases out of 7,201 cases) relat ed t o publicat ion/
t ransmission of obscene/sexually explicit cont ent (under
sect ion 67A, 67B and 67C of IT Act ).
Along w it h it , t he global spam rat e, malw are rat e and
4 Cy b er Cr i m e - Law an d Pr act i ce

phishing rat e is increasing rapidly and t here is a pot ent ial


impact of cyber crimes on t he economy, consumer t rust and
product ion t ime. The counter measures in the form of GPRS
Securit y archit ect ure, Int rusion Det ect ion and prevent ion
Syst em and Agent Based Dist ribut ed Int rusion, Det ect ion
Syst ems have t hus been employed f or securit y purposes.
Considering t he signif icant increase in number of Cyber
Crimes report ed t hese days, it becomes import ant and
imperat ive t o enquire as t o meaning of t he t erm Cyber
Crime, t he kinds of Cyber Crimes, t heir impact s and ef f ect s
on t he Societ y at large, t he law /st at ut e dealing w it h cyber
crimes in India and t he det errent ef f ect of law on Cyber
Crimes in India.
Theref ore, t his manuscript deals w it h (a) t he meaning and
variant s of cyber crimes like Salami At t ack, Packet Snif f ing,
Tempest At tacks, and Bot Netw orks; (b) the real w orld cyber
crime cases, t heir scenario as w ell as t he modus operandi
employed f or commission of such crimes.
It also f ocuses on t he legal regime on t he subject of Cyber
Crimes in India and it s st rong analysis leading t o t he viable
recommendat ions t ow ards t he ef f ect ive legal prot ect ion
against t he cyber crimes in India.
1.2 Cy b er Cr i m e: M ean i n g an d Def i n i t i o n
Crime is not per se a legal t erm. It derives it s meaning and
has a connot at ion in t he background of a societ y t han t he
State as such. Thus, it defies an attempt to lay down a straight
jacket def init ion wit h clearly def ined boundaries. How ever,
usually it is put synonymous t o somet hing w hich is “a
w rong”, “an of f ence”, “a misdemeanour” or “a f elony”.
Crime is bot h a social and an economic phenomenon. It is as
old and hist orical as t he human societ y it self . M any ancient
books, right f rom t he pre-hist oric days, and myt hological
st ories have spoken about crimes being commit t ed by
individuals; be it commit t ed against an individual like
ordinary t hef t and burglary or against t he nat ion at large
like t he crimes of spying, t reason, et c.
Kaut ilya’s Art hashast ra, a document w rit t en around in t he
Cy b er Cr i m e - Law an d Pr act i ce 5

350 BC is considered t o be one of t he most aut hent ic


administ rat ive t reat ises in India w hich discusses t he various
crimes commit t ed in t he societ y, securit y init iat ives t o be
t aken by t he rulers t o curb t hem, possible crimes in a St at e,
et c. It also advocat es aw arding dif f erent punishment s f or
diff erent off ences list ed t herein. Furt her, t he concept of
rest orat ion of loss t o t he vict ims has also been discussed in
it.
In his t heory of probable crime, he has discussed as t o how
w it h t he changes in societ y, diff erent crimes emerge. To
illust rat e t he w eak posit ion of w omen in t he societ y it lays
dow n t hat t he crimes against w omen w ill increase in t he
society; with the strong position of a specific sector, t he abuse
of power will result in commission of crimes associat ed w it h
t he power-play.
Cert ainly, t he advent of Inf ormat ion and Communicat ion
Technology has lead t o t he emergence of a new kind of
crime called t he Cyber Crime.
To clearly underst and t he meaning of Cyber Crime, one
should f irst underst and t he meaning of t he t erm Crime and
t hen t he meaning of Cyber Crime.
1.2.1 M ean i n g o f Cr i m e
Crime in any f orm does adversely af f ect s t he members of
t he societ y. According t o M er r i am Web st er Di ct i o n ar y ,
Crime is an act or t he commission of an act t hat is f orbidden
or the omission of a dut y t hat is commanded by a public law
and t hat makes t he of f ender liable t o punishment by t hat
law, especially - a gross violat ion of law.
According t o Ox f ord English Dict io nary , Crime is an action
or act ivit y or omission considered t o be evil, shamef ul, or
w rong; w hich const it ut es an of f ence and is punishable by
law.
Bl ack st o n e def ines Crime as an act commit t ed or omit t ed
in violation of a public law either f orbidding or commanding
it.
St ep h e n ob served , “a crime is a violat io n of a rig ht
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considered in reference t o the evil t endency of such violat ion


as regards t he communit y at large” .
Ox f o r d Di ct i o n ar y def ines Crime as an act punishable by
law as forbidden by statute or injurious to the public w elfare.
In a layman’s language, a crime can be def ined as an
unlaw f ul act punishable by a St at e or ot her aut horit y. The
t erm " crime" does not , under t he modern criminal law, has
a simple an d u niversally accept ed def init io n, t ho ug h
st at u t o ry d ef init io ns h ave b een p ro vid ed f or cert ain
purposes.
The most popular view is t hat Crime is a cat egory created by
law; in ot her words, somet hing is a Crime if it is declared as
such by t he relevant and applicable law. One proposed
definition is that a Crime or an Off ence (or criminal of fence)
is an act harmful not only t o an individual or individuals but
also t o the community, society or t he Stat e at large (" a public
wrong" ). Such acts are thus forbidden and punishable by law.
Theref ore, an inclusive def init ion of t he t erm Crime can be
t hat it is an act or an omission w hich is prohibit ed by law.
Deducing f rom t he def init ions of t he t erm ‘Crime’ above,
Cyber Crime can be def ined as an act or omission prohibited
by law which is carried out either with the means of or w here
t he t arget is a comput er, comput er source or comput er
net work.
1.2.2 M ean i n g o f Cy b er Cr i m e
It is right ly said t hat everyt hing has a cost associat ed w it h it
and so is t he case wit h growing popularity and convenience
of d ig it al net w o rk s. Th e ease, con venience and sw if t
co m m u n i cat i o n p r o vi d ed b y t h e In f o r m at i o n an d
Communicat ion t echnology does also come at a cost. As the
b u si n esses an d so ci et ies ar e in cr easin g l y relyin g o n
computers and int ernet-based net working, t he cyber crimes
and digit al at t ack incident s have increased many f old.
These at t acks are generally classif ied as crimes t hat involve
t he use of a comput er or comput er source or comput er
Cy b er Cr i m e - Law an d Pr act i ce 7

net w orks. The inst ances of dif f erent cyber crimes being
commit t ed include t he f inancial scams carried out t hrough
t he mode of comput er, comput er hacking, dow nloading
pornographic images f rom the internet , virus att acks, e-mail
st alking and creat ing w ebsit es t hat promot e racial hat red.
The f irst major inst ance of a cyber crime being commit t ed
w as report ed in t he late 90’s, when a computer virus mailed
t o t he masses af f ect ed nearly 45 million comput er users
worldwide.
As in t he developed w orld, in developing economies t oo,
the cyber crimes have increased manifold, owing to the rapid
dif f usion of Int ernet and t he digit isat ion of economic
act ivit ies. Thanks t o t he huge penet rat ion of t echnology in
almost all areas of operat ion of societ y, f rom corporat e
governance and st at e administ rat ion t o t he level of pet t y
shop keepers comput erizing t heir billing syst em, w e f ind
comput ers and ot her elect ronic devices pervading t he
human lif e. The penet ration is so deep t hat we cannot think
of operat ing w it hout being associat ed w it h comput ers.
The term ‘Crime’has neither been defined in the Information
Technology Act , 2000 nor in t he Inf ormat ion Technology
(Amendment ) Act , 2008 nor in any other legislat ion in India.
In f act , it is quit e dif f icult , if not impossible, t o def ine t he
w ord Crime. The w ord ‘Of f ence’ has been def ined under
t he Indian Penal Code, 1860 and also in quit e a f ew ot her
legislat ions t oo. In order t o def ine Cyber Crime, w e can say,
it is a crime associat ed w it h or commit t ed w it h t he help of
comput ers. To put it in simple w ords ‘an off ence or a crime
in w hich a computer is used can be said t o be a cyber crime’.
Int erest ingly, even a pet t y off ence like st ealing or pick-
pocket can be brought w it hin the broader purview of cyber
crime if t he basic dat a or aid t o such an of f ence is given
through a computer or the information stored in a computer
used (or misused) by t he off ender. The I.T. Act , 2000 does
def in e w ords like comput er, co mput er n et w ork, dat a,
inf ormat ion and all ot her associat ed t erms t hat form a part
of t he t erm cyber crime, about w hich w e w ill now be
discussing in det ail.
8 Cy b er Cr i m e - Law an d Pr act i ce

In a cyber crime, t he comput er or t he dat a it self is eit her a


t arget or t he object of an of f ence or a t ool employed in
commit ting some off ence, and t hus providing t he necessary
input s f or t hat of f ence. All such act s of crime come under
t he broad def init ion of t he t erm Cyber Crime.
Cyber crimes are t echnology based crimes w herein t he
comput er or int ernet it self is used as a w eapon or means t o
commit such crimes. They are organized and w hit e collar
crimes like cyber f rauds, hacking, dat a t hef t , phishing,
identity thef t, et c. Cyber crimes are committed with the help
o f t ech n o l o g y an d cyb er cr i m i n al s h ave a d eep
underst anding of t echnology. In f act , cyber criminals are
t echnocrat s w ho underst and t he int ricacies of Inf ormat ion
Technology. Cyber crimes do not know or recognise any
t errit orial boundary or barrier.
In general, a Cyber Crime can be classified into the following
t hree cat egories:
1. Target Cyber Crime : It is a crime w herein a comput er is
t he t arget of t he of f ence.
2. Tool Cyber Crime : It is a crime w herein a comput er is
used as a t ool in commit t ing t he of f ence.
3. Computer incidental : It is a crime w herein t he computer
plays only a minor role in the commission of the of fence.
Accordance t o t he Inf ormat ion Technology Act , 2000 a
Cyber Crime can be def ined as “an act or omission t hat is
punishable under t he Inf ormat ion Technology Act , 2000" .
This how ever is not an exhaust ive def init ion as t he Indian
Penal Code also covers cert ain cyber crimes, such as email
spoofing and cyber defamat ion, sending threatening emails,
et c.

***
Cy b er Cr i m e - Law an d Pr act i ce 9

Chapt er 2

Cl assi f i cat i o n o f Cy b er Cr i m es

2.1 Tax o n o m y o f Cy b er Cr i m e
Wit h an en o rmo u s gro w t h w it n essed in t h e f ield o f
communication technology and with the ease of transactions
under it , t here is swif t growt h as w ell as development in the
w orld. The World Wide Web (w w w ) sounds like a vast
phenomenon but surprisingly one of it s qualit ies is t hat it
has brought the w orld closer which has also made it a closely
linked place t o live in f or it s users.
However, it has also resulted in creation of a major challenge
in t he f orm of Cyber Crimes.
Cyber crime is an int ricat e concept t o be def ined in a simple
and in layman’s language. However, it can be said t hat when
any crime is commit t ed over t he Int ernet it can be ref erred
t o as a Cyber Crime.
There are dif f erent cyber crimes w hich are t aking place in
t he present w orld w hich is dominat ed by t he Inf ormat ion
an d Co mmu n icat io n Tech n olo g y. It co u ld b e h ack ers
vandalizing your website, viewing confident ial information,
st ealing t rade secret s or int ellect ual propert y w it h t he use
of int ernet . It can also include ‘denial of services’and virus
at t acks prevent ing regular t raf f ic f rom reaching yo ur
w ebsit e. Cyber crimes are not limit ed t o out siders except in
case of viruses and w it h respect t o securit y relat ed cyber
crimes t hat are usually commit t ed by t he employees of
part icular company/organisat ion w ho can easily access t he
passw ord and t he dat a st orage of t he company f or t heir
illegal purposes. Cyber crimes also include criminal act ivit ies
carried o u t w it h t h e use o f co mp ut ers w hich f u rt her
perpet uat es dif f erent crimes, e.g. f inancial crimes, sale of
9
10 Cy b er Cr i m e - Law an d Pr act i ce

illegal art icles, pornography, online gambling, int ellect ual


property crime, e-mail, spoof ing, f orgery, cyber def amat ion,
cyber st alking, unaut horized access t o Comput er syst em,
t hef t of inf ormat ion cont ained in t he elect ronic f orm, e-
mail bombing, physically damaging t he comput er syst em,
et c.
Alt hough the law enf orcement agencies are working to deal
w it h t his problem and t rying t heir best t o deal w it h t his
menace; yet it is grow ing st eadily and t hus people are
increasingly becoming vict ims of cyber crimes like hacking,
t hef t, ident it y t hef t , et c.
Though t here is a prot ect ion provided by law against such
cyber crimes, t here is also a need t o prot ect your sensit ive
inf ormat ion by using impenet rable securit y t hat uses a
unif ied syst em of sof t w are and hardw are t o aut hent icat e
an inf ormat ion t hat is sent or accessed over t he Int ernet .
How ever, bef ore one can underst and t he legal regime
surrounding cyber crimes, one need to underst and dif ferent
cyber crimes t aking place in t his cont emporary w orld.
2.2 Cl assi f i cat i o n s o f Cy b er Cr i m es
The number of Cyber Crimes commit t ed is increasing w it h
each passing day, and it is very diff icult t o f ind out as t o
w hat is act ually a cyber crime and w hat is t he convent ional
crime. However, to deal with thischallenge, the most common
cyber crimes can be cat egorised and discussed under t he
f ollow ing heads:
1. Cyber Crime Against Person;
2. Cyber Crime Against Propert y;
3. Cyber Crime Against Government ;
4. Cyber Crime Against Societ y.
2.2.1. Cy b er Cr i m es ag ai n st Per so n s
There are cert ain of f ences w hich af f ect t he personalit y of
an individual and can be def ined as:
(i) Harassment via E-M ails : It is a very common t ype of
Cy b er Cr i m e - Law an d Pr act i ce 11

harassment done t hrough lett ers, att achments of f iles &


folders, i.e., via e-mails. At present, harassment is common
w it h t he increase in t he usage of social net w orking sit es,
like Facebook.com, Tw it t er.com, et c.

(ii) Cyber-Stalking : It means expressed or implied a physical


t hreat t hat creat es f ear t hrough t he use t o comput er
t ech n o lo g y su ch as in t ern et , e-mail, p h o n es, t ext
messages, w ebcam, w ebsit es or videos.

(iii) Dissemination of Obscene M aterial : It includes Indecent


exposure/ Pornography (basically child pornography),
h o st i n g o f w eb si t e co n t ai n i n g t h ese p ro h i b i t ed
materials. These obscene mat t ers may cause harm t o t he
mind of t he adolescent and t end t o deprave or corrupt
t heir mind.

(iv) M alw are : M alware is sof t ware t hat t akes cont rol of any
individual’s comput er t o spread a bug t o ot her people’s
devices or social net w orking prof iles. Such sof t w are can
also b e u sed t o creat e a ‘b o t n et ’— a n et w o rk o f
comput ers cont rolled remot ely by hackers, know n as
‘herders,’— t o spread spam or viruses.

(v) Defamation : It is an act of imput ing any person w it h


int ent t o low er dow n t he dignit y of t he person by
hacking his mail account and sending some mails w it h
vulgar language t o unknow n persons mail account .

(vi) Hacking : It means unaut horized cont rol/access over


comput er system and act of hacking complet ely dest roys
t he w h ole d at a as w ell as comp ut er pro grammes.
Hackers usually hack t elecommunicat ion and mobile
net w ork.

(vii) Cracking : It is amongst t he gravest cyber crimes know n


t ill dat e. It is a dreadf ul f eeling t o know t hat a st ranger
has broken int o your comput er syst ems w it hout your
know ledge and consent and has tampered w ith precious
conf idential dat a and informat ion.
12 Cy b er Cr i m e - Law an d Pr act i ce

(viii) E-M ail Spoofing : A spoof ed e-mail may be said t o be


one, which misrepresent s it s origin. It show s it s origin t o
be dif f erent f rom w hich act ually it originat es.

(ix) SM S Spoofing : Spoof ing is a blocking t hrough spam


w hich means t he unw ant ed uninvit ed messages. Here a
off ender steals ident ity of anot her in the f orm of mobile
p ho n e n umb er and sen din g SM S via in t ern et an d
receiver get s t he SM Sf rom the mobile phone number of
t he vict im. It is very serious cyber crime against any
individual.

(x) Carding : It means f alse ATM cards, i.e., Debit and Credit
cards used by criminals f or t heir monet ary benef it s
t hrough w it hdraw ing money f rom t he vict im’s bank
account mala-f idely. There is alw ays unaut horized use
of ATM cards in t his t ype of cyber crimes.

(xi) Cheating & Fraud : It means the person w ho is doing t he


act of cyber crime i.e. st ealing password and data st orage
has done it with w rongf ul intention which leads to f raud
and cheat ing.

(xii) Child Pornography : It involves t he use of comput er


net w orks t o creat e, dist ribut e, or access mat erials t hat
sexually exploit underage children.

(xiii) Phishing : Phishing is just one of t he many f rauds on


t he Internet , Phishing t rying t o f ool people int o part ing
w it h t heir money. Phishing ref ers t o t he receipt of
unsolicit ed emails by cust omers of f inancial inst it ut ions,
request ing t hem t o ent er t heir username, passw ord or
ot her personal inf ormat ion t o access t heir account f or
some reason. Cust omers are direct ed t o a f raudulent
replica of t he original inst it ut ion' s w ebsit e w hen t hey
click on t he links on the email t o ent er t heir information,
an d so t h ey remain u n aw ar e t h at t h e f r au d h as
o ccu r r ed . Th e f r au d st er t h en h as access t o t h e
cu st o mer' s on lin e b ank acco u n t an d t o t he f un d s
cont ained in t hat account .
Cy b er Cr i m e - Law an d Pr act i ce 13

The above fraud message is a classic example of a phishing


scam. This is how fraudst ers operate. The f ull sit e address
is same except “s” missing in “ht t ps” and small let t er “L”
used instead of " i" as in ICICI. It looks similar to ICICI banks
Web address. You may receive similar messages f rom
f raudst ers. Please DO NOT click on such links.
(xiv) Vishing : Vishing is t he criminal pract ice of using social
engineering and Voice over IP (VoIP) t o gain access t o
privat e personal and f inancial Inf ormat ion f rom t he
public f or t he purpose of f inancial rew ard. The t erm is a
combinat ion of " voice" and phishing.
(xv) Bot netw orks : A cyber crime called 'Bot Net w orks' ,
w herein spamst ers and ot her perpet rat ors of cyber
crimes remot ely t ake cont rol of comput ers w it hout t he
users realizing it , is increasing at an alarming rat e.
Comput ers get link ed t o Bot Net w orks w hen users
14 Cy b er Cr i m e - Law an d Pr act i ce

unknow ingly dow nload malicious codes such as Trojan


h o rse sen t as e-m ail at t ach men t s. Su ch af f ect ed
compu t ers, kn ow n as zombies, can w o rk t og et her
w henever t he malicious code w it hin them get act ivat ed,
and t hose w ho are behind the Bot Net works at t acks get
t he comput ing pow ers of t housands of syst ems at t heir
disposal. At tackers oft en coordinate large groups of Bot-
co n t ro lled syst ems, o r Bo o t n et w o rk s, t o scan f o r
vulnerable syst ems and use t hem t o increase t he speed
and breadt h of t heir at t acks. Boot net w orks creat e
unique problems f or organizat ions because t hey can be
remot ely upgraded w it h new exploit s very quickly and
t his could help at t ackers pre-empt securit y ef f ort s.
(xvi) Assault by Threat : It refers t o t hreatening a person w it h
f ear f or t heir lives or lives of t heir f amilies t hrough t he
use of a comput er net work, i.e., E-mail, videos or phones.
(xvii) Buf f er overf low : Th is is t h e most common w ay of
breaking int o a comput er. Buff ers are creat ed t o hold a
f init e amount of dat a. When it overf low s, it goes int o
adjacent buf fers w hich can cause data to be overwrit ten.
In buf f er overf low at t acks, t he ext ra dat a can cont ain
inst ructions that t rigger specific actions. These actions can
cause damage t o f iles and/or change dat a.
2.2.2. Cr i m es ag ai n st Per so n s’ Pr o p er t y
As t here is rapid grow t h in t he int ernat ional t rade w here
businesses and consumers are increasingly using comput ers
to creat e, transmit and to st ore inf ormation in t he electronic
f orm inst ead of t radit ional paper document s. There are
cert ain off ences w hich aff ect person’s propert ies w hich are
as follows:
(i) Intellectual Property Crimes : Intellectual property consists
of a bundle of right s. Any unlaw f ul act by w hich t he
ow ner is deprived complet ely or part ially of his right s is
an of f ence. The common f orm of IPR violat ion may be
said t o be sof t w are piracy, inf ringement of copyright ,
t rademark, pat ent s, designs and service mark violat ion,
t hef t of comput er source code, et c.
Cy b er Cr i m e - Law an d Pr act i ce 15

(ii) Softw are piracy : Many people do not consider sof t ware
piracy t o be t hef t . They w ould never st eal a rupee f rom
someone but would not think tw ice bef ore using pirat ed
sof tware. There is a common perception amongst normal
comput er users t o not consider sof t w are as “propert y”.
This has led t he sof t w are piracy t o become a f lourishing
business.
The sof t ware pirat e sells the pirat ed soft w are in physical
media (usually CD ROM s) t hrough a close net w ork of
dealers.
The suspect uses high speed CD duplicat ion equipment
t o creat e mult iple copies of t he pirat ed sof t w are. This
so f t w ar e is so l d t h ro u g h a n et w o rk o f co mp u t er
hardw are and sof t w are vendors
(iii) Cyber Squatting : It means w here t w o persons claim f or
t he same Domain Name eit her by claiming that they had
regist ered t he name f irst on by right of using it bef ore
t he ot her or using somet hing similar t o t hat previously.
For example two similar names, i.e., w ww.yahoo.com and
ww w.yaahoo.com.
(iv) Cyb er Van d al ism : Van d ali sm m ean s d el ib er at el y
dest roying or damaging propert y of anot her. Thus cyber
vandalism means destroying or damaging t he data when
a net w ork service is st opped or disrupt ed. It may include
w it hin its purview any kind of physical harm done t o the
comput er of any person. These act s may t ake t he f orm
of the t hef t of a comput er, some part of a comput er or a
peripheral at t ached t o t he comput er.
(v) Hacking Computer System : Hackt ivism at t acks t hose
i n cl u d ed Fam o u s Tw i t t er, b l o g g i n g p l at f o r m b y
unaut horized access/cont rol over t he comput er. Due t o
t he hacking act ivit y t here w ill be loss of dat a as w ell as
comput er. Also research especially indicat es t hat t hose
at t acks w ere not mainly int ended f or f inancial gain t oo
and t o diminish t he reput at ion of part icular person or
company.
A hacker is an unaut horized user w ho at t empt s t o or
16 Cy b er Cr i m e - Law an d Pr act i ce

gains access t o an informat ion system. Hacking is a crime


even if t here is no visible damage t o the system, since it is
an invasion in t o t he privacy of dat a. There are dif ferent
classes of Hackers.
(a) White Hat Hackers - They believe t hat inf ormat ion
sharing is good, and t hat it is t heir duty to share t heir
exp ert ise b y f acilit at in g access t o in f o rmat io n .
How ever t here are some w hit e hat hackers w ho are
just “joy riding" on comput er syst ems.
(b) Black Hat Hackers -They cause damage after intrusion.
They may st eal or modif y dat a or insert viruses or
worms w hich damage t he system. They are also called
‘crackers’.
(c) Grey Hat Hackers - Typically et hical but occasionally
violat es hacker et hics Hackers will hack into net works,
st an d -alo n e co mp u t ers an d so f t w are. Net w o rk
hackers t ry t o gain unaut horized access t o privat e
comput er net w orks just f or challenge, curiosit y, and
d ist r ib u t i o n o f i n f o r mat io n . Cr ack ers p erf o r m
unauthorized int rusion w it h damage like st ealing or
changing of information or inserting malware (viruses
or w orms)
(vi) Transmitting Virus : Viruses are programs t hat at t ach
t hemselves t o a comput er or a f ile and t hen circulat e
t hemselves t o ot her f iles and t o ot her comput ers on a
net w ork. They usually aff ect t he dat a on a comput er,
either by altering or deleting it. Worm attacks plays major
r o le i n af f ect i n g t h e co m p u t eri ze syst em o f t h e
individuals.
(vii) Packet Sniffing : This is used by hackers and f orensic
expert s. Dat a t ravels in t he f orm of packet s and vary in
size depending on t he netw ork bandw idth and amount
of data. The hacker int ercept s t he t ransmission bet w een
comput er A and B. All t he hacker needs is t he IP address
f rom one of t he comput ers and any dat a can be st olen.
The dat a is not st olen because snif f ers don’t do t hat .
Inst ead t hey copy t he hex and t ranslat e it int o original
Cy b er Cr i m e - Law an d Pr act i ce 17

dat a. This is w hy it is hard f or f irew alls t o det ect t his


because t hey only provide applicat ion level securit y.
(viii) Cyber Trespass : It means t o access someone’s comput er
w it hout t he right aut horizat ion of t he ow ner and does
not dist urb, alt er, misuse, or damage dat a or syst em by
using w ireless int ernet connect ion.
(ix) Salami Attack : Those attacks are used for t he commission
of f inancial crimes. The key here is to make the alt eration
so in sig n if ican t t h at in a sin g le case it w o u ld g o
complet ely unnot iced. e.g., a bank employee insert s a
program into bank’s servers, that deduct s a small amount
f rom t he account of every cust omer.
(x) Internet Time Thefts : Basically, Internet t ime thef t comes
under hacking. It is t he use by an unaut horised person,
of t he Int ernet hours paid f or by anot her person. The
person w ho get s access to someone else’s ISP user ID and
passw ord, eit her by hacking or by gaining access t o it by
illegal means, uses it t o access t he Int ernet w it hout t he
ot her person’s know ledge. You can ident if y t ime t hef t if
your Int ernet t ime has t o be recharged of t en, despit e
inf requent usage.
(xi) Trojan and Rats : Trojan horses are programs that appear
t o be doing w hat t he user w ant s w hile t hey are act ually
doing something else such as deleting f iles or format ting
disks. All t he user sees is t he int erf ace of t he program
t hat he w ants to run. RATs are remote access Trojans t hat
provide a backdoor int o t he syst em t hrough w hich a
hacker can snoop int o your syst em and run malicious
code.
(xii) Data Diddling : Dat a diddling involves changing dat a
prior or during input int o a comput er. In ot her w ords,
inf ormat ion is chan ged f rom t he w ay it should be
ent ered by a person t yping in t he dat a, a virus t hat
changes dat a, t he pro grammer o f t he dat abase or
applicat ion, or anyone else involved in t he process of
having information st ored in a comput er f ile. The culprit
can be anyone involved in t he process of creat ing,
18 Cy b er Cr i m e - Law an d Pr act i ce

recording, encoding, examining, checking, convert ing,


or t ransmit ting dat a. This is one of t he simplest met hods
of commit t ing a comput er-relat ed crime, because it
requires almost no comput er skills w hat soever. Despit e
t he ease of commit t ing t he crime, t he cost can be
considerable.
(xiii) Email account hacking : Emails are increasingly being
used f or social int eraction, business communicat ion and
online t ransact ions. M ost email account holders do not
t ake basic precaut ions t o prot ect t heir email account
p assw o rd s. Cases of t h ef t of email p assw ords an d
subsequent misuse of email accounts are becoming very
common.
The vict im’s email account passw ord is st olen and t he
account is t hen misused f or sending out malicious code
(virus, w orm, Trojan et c) to people in t he vict im’s address
book. The recipient s of t hese viruses believe t hat t he
email is coming f rom a know n person and run t he
at t achmen t s. Th is inf ect s t h eir comput ers w it h t he
malicious code.
The suspect would inst all key loggers in public computers
(such as cyber cafes, airport lounges etc.) or the computers
of t he vict im.
2.2.3. Cy b er cr i m es A g ai n st Go v er n m en t
There are cert ain of f ences done by group of persons
int ending to threat en the int ernational government s by
using int ernet f acilities. It includes:
(i) Cyber Terrorism : Cyber t errorism is a major burning
issue in t he domest ic as w ell as global concern. The
common f o rm of t h ese t erro rist at t ack s on t h e
Internet is by distributed denial of service attacks, hate
w eb sit es an d h at e e-mails, at t ack s o n sen sit ive
comput er net w orks et c. Cyber t errorism act ivit ies
endanger the sovereignt y and integrity of the nation.
(ii) Web defacement : Websit e def acement is usually the
subst it ut ion of t he original home page of a w ebsit e
Cy b er Cr i m e - Law an d Pr act i ce 19

w i t h an o t h er p ag e (u su al l y p o r n o g r ap h i c o r
def amat ory in nat ure) by a hacker.
Religious and government sites are regularly target ed
by hackers in order t o display polit ical or religious
belief s. Under t h e scenario, t he homepag e of a
w eb si t e i s r ep l aced w i t h a p o r n o g r ap h i c o r
def amat ory page. In case of Government w ebsit es,
t his is most commonly done on symbolic days (e.g.,
t he Independence Day of t he count ry).
The def acer may exploit t he vulnerabilit ies of t he
operat ing syst em or applicat ions used t o host t he
website. This will allow him to hack into the web server
an d ch an g e t h e h o me p ag e an d o t h er p ag es.
A lt ern at i vel y h e m ay l au n ch a b r u t e f o rce o r
d ict i o n ary at t ack t o o b t ain t h e ad m in i st r at o r
passw ords f or t he w ebsit e. He can t hen connect t o
t he w eb server and change t he WebPages.
(iii) Cyber Warfare : It ref ers t o polit ically mot ivat ed
hacking t o conduct sabot age and espionage. It is a
f orm o f inf ormat ion w arf are somet imes seen as
analogous t o convent ional w arf are alt hough t his
analogy is cont roversial f or bot h it s accuracy and it s
polit ical motivation.
(iv) Use of Internet and Computers by terrorists : M any
t errorist s are using virt ual as w ell as physical st orage
media for hiding information and records of their illicit
business. They also use emails and chat rooms t o
communicat e w it h t heir count erpart s around t he
globe. The suspects carry laptops wherein information
relat ing t o t heir act ivit ies is st ored in encrypt ed and
passw ord prot ect ed f orm. They also creat e email
account s using f ict it ious det ails. In many cases, one
email account is shared by many people. E.g., one
t errorist composes an email and saves it in t he draf t
f older. Anot her t errorist logs int o t he same account
from another city / country and reads t he saved email.
He t hen composes his reply and saves it in t he draf t
f older. The emails are not act ually sent . This makes
20 Cy b er Cr i m e - Law an d Pr act i ce

email t racking and t racing almost impossible. For


commit t ing t his crime t he t errorist s purchase small
st orage devices w it h large dat a st orage capacit ies.
They also purchase and use encrypt ion sof t w are. The
t errorist s may also use f ree or paid account s w it h
online st orage providers.
(v) Distribution of pirated software : It means distributing
pirat ed sof t w are f rom one comput er t o anot her
int ending t o dest roy t he dat a and of f icial records of
t he government .
(vi) Possession of Unauthorized Information : It is very
easy t o access any inf ormat ion by t he t errorist s w it h
t he aid of int ernet and t o possess t hat inf ormat ion
f or political, religious, social, ideological objectives.
2.2.4. Cy b er cr i m es A g ai n st So ci et y at l ar g e
An unlaw f ul act done w it h t he int ent ion of causing harm
t o the cyberspace w ill aff ect large number of persons. These
of f ences include:
(i) Child Pornography : It involves t he use of comput er
net w orks t o creat e, dist ribut e, or access mat erials t hat
sexually exploit underage children. It also includes
act ivit ies concerning indecent exposure and obscenit y.
(ii) Cyber Trafficking : It may be t raff icking in drugs, human
beings, arms w eapons et c. w hich af f ect s large number
of persons. Traff icking in t he cyberspace is also a gravest
crime.
(iii) Online Gambling : Online f raud and cheat ing is one of
t he most lucrat ive businesses t hat are grow ing t oday in
t he cyber space. There are many cases that have come t o
l ig h t are t h o se p ert ain in g t o cr ed i t car d cri m es,
cont ract ual crimes, of f ering jobs, et c.
(iv) Financial Crimes : This t ype of offence is common as there
is rapid grow t h in t he users of net w orking sit es and
phone net w orking w here culprit w ill t ry t o at t ack by
sending bogus mails or messages t hrough int ernet . Ex:
Using credit cards by obt aining passw ord illegally.
Cy b er Cr i m e - Law an d Pr act i ce 21

v. Forgery : It means t o deceive large number of persons


b y sen d in g t h r eat en i n g m ai l s as o n l in e b u si n ess
t ransact ions are becoming t he habit ual need of t oday’s
life style.
2.3 Cau ses o f Cy b er Cr i m e
(i) Economically M otivated Cyber Crime
As is t he case w it h many crimes commit t ed out side t he
Int ernet , money is a major mot ivat or f or many cyber
criminals. Especially because t he dangers of criminalit y
are less apparent w hen you're hiding behind a netw ork,
the percept ion of low risk and very high f inancial reward
prompt s many cyber criminals t o engage in malw are,
phishing, ident it y t hef t and f raudulent money request
at t acks. Business w eek est imat es t h at cyber crimes
t arget ing online banking account s alone, f or example,
pull in nearly 700 million dollars per year globally.
(ii) Ideologically M otivated Cyber Crime
Af t er f inancial companies like Visa, M ast erCard and
PayPal ref used t o let account and card holders make
contribut ions t o t he cont roversial non-prof it WikiLeaks,
t he " hackt ivist " group Anonymous coordinat ed a series
of bot att acks on t he companies' servers, rendering them
unreachable t o Internet users. These kinds of at t acks are
conduct ed f or perceived et hical, ideological or moral
reasons, damaging or disabling comput er equipment
and net w orks t o express grievances against individuals,
co r p o r at i o n s, o r g an i zat i o n s o r even n at i o n al
government s.
(iii) Structural Causes
Beyo n d t h e cau ses t h at m o t i vat e cr i m i n al s, t h e
environment in w hich cyber crime is commit t ed also
serves t o explain t he prevalence of t he phenomenon.
While more and more personal and sensitive information
is st ored online -- increasing t he pot ent ial rew ards f or
cyb er cri m i n als -- n ei t h er co m p u t er secu r i t y n o r
applications like email f ilt ers have improved dramatically
22 Cy b er Cr i m e - Law an d Pr act i ce

in t erms o f co verag e. Acco rd in g t o t h e an t i-viru s


manu f act urer Nort o n, f or examp le, as man y as 41
percent of comput ers did not have up-t o-dat e securit y
prot ect ion in 2012.
(iv) Personally M otivated Cyber Crime
Cyber criminals are st ill human beings and what t hey do
including t heir crimes is of t en t he cause of personal
emot ions and vendet tas. From the disgrunt led employee
in st alling a virus o n of f ice co mp ut ers t o a jealo us
b o yf rien d hack in g in t o a g irlf rien d' s so cial med ia
account s or a t eenager t aking dow n a school w ebsit e
just t o prove t hat he could do it , many cyber crimes are
essentially crimes of passion committed over the Internet.
Many of these crimes, how ever, can st ill have very serious
impact s and cause considerable propert y damage.
2.4 Im p act an d Ef f ect s o f Cy b er Cr i m es
The ef f ect s of a single, successf ul cyber at t ack can have f ar-
reaching implicat ions including f inancial losses, t hef t of
int ellect ual propert y, and loss of consumer conf idence and
t rust . The overall monet ary impact of cyber crime on societ y
and government is est imat ed t o be billions of dollars a year.
Cyber Crimes alw ays af f ect s t he companies of any size
because almost all t he companies gain an online presence
and t ake advant age of t he rapid gains in t he t echnology
but great er at t ent ion t o be given t o it s securit y risks. In t he
modern cyber w orld cyber crimes is t he major issue w hich is
af f ect ing individual as w ell as societ y at large t oo.
(i) Loss of Revenue
One of t he main ef f ect s of cyber crime on a company is a
loss of revenue. This loss can be caused by an out side
part y w ho obt ains sensit ive f inancial inf ormat ion, using
it t o w it hdraw f unds f rom an organizat ion. It can also
o ccu r w h en a b u sin ess e-co mmerce sit e b eco m es
compromised w hile inoperable, valuable income is lost
w hen consumers are unable t o use t he sit e.
(ii) Potential Economic Impact
As t oday‘s consumer has become increasingly dependent
Cy b er Cr i m e - Law an d Pr act i ce 23

on comput ers, net w orks, and t he inf ormat ion t hese are
used t o st ore and preserve, t he risk of being subject ed
t o cyber-crime is high. Some of the surveys conducted in
the past have indicated as many as 80% of the companies’
surveyed acknowledged f inancial losses due to comput er
breaches. As t he economy increases it s reliance on t he
int ernet , it is exposed t o all t he t hreat s posed by cyber-
cr i m i n al s. St o ck s ar e t r ad ed vi a i n t er n et , b an k
t ransact ions are perf ormed via int ernet , purchases are
made using credit card via int ernet. All instances of f raud
in such t ransact ions impact t he f inancial st at e of t he
aff ect ed company and hence t he economy.
(iii) Wasted Time
Anot her major ef f ect or consequence of cyber crime is
t he t ime t hat is w ast ed w hen IT personnel must devot e
great port ions of t heir day handling such incidences.
Rat her t han w orking on product ive measures f or an
organizat ion, many IT st af f members spend a large
percent age of t heir t ime handling security breaches and
ot her problems associat ed w it h cyber crime.
(iv) Damaged Reputations
In cases w here cust omer records are compromised by a
securit y breach associat ed wit h cyber crime, a company's
reput at ion can t ake a major hit . Customers w hose credit
cards or ot her f inancial dat a become int ercept ed by
h ackers o r ot her in f ilt rat ors lo se con f idence in an
organizat ion and of t en begin t aking t heir business
elsew here. The impact of t he damaged reput at ion can
be clearly underst ood by t he example of t he hacking of
Walmart server making a huge loss of reput at ion t o t he
one of t he biggest ret ailer of t he US and Europe.
Wal m ar t Case St u d y
In year 2006, WALM ART became t he vict im of a serious
secu r i t y b r each i n w h i ch h ack er s t ar g et ed t h e
development team in charge of the chain’s point -of -sale
syst em and siphoned source code and ot her sensit ive
dat a t o t he company’s server in Europe7.
24 Cy b er Cr i m e - Law an d Pr act i ce

Reproduced from Big Box Breach

Wal-M art had a number of securit y vulnerabilities at the


t ime o f t h e at t ack , acco rd in g t o in t ern al secu rit y
assessments seen and acknow ledged as genuine by Wal-
M art. For example, at least f our years’wort h of customer
purchasing dat a, including names, card numbers and
expirat ion dat es, w ere housed on company net w orks in
unencrypt ed form. Wal-M art says it w as in the process of
dramat ically improving t he securit y of it s t ransact ion
dat a, and in 2006 began encrypt ing t he credit card
numbers and ot her cust omerinf ormat ion, and making
ot her import ant securit y changes.
Wal-Mart really made every ef fort t o segregate t he dat a,
t o make separat e netw orks, to encrypt it f ully f rom st art
t o f inish t hrough t he t ransmission, and not just in one
area but across t he dif f erent uses of credit card syst ems.
Invest igat ors f ound t hat t he t ool had been inst alled
r em o t el y b y so m eo n e u si n g a g en er i c n et w o r k
administrat or account.
Cy b er Cr i m e - Law an d Pr act i ce 25

The int ruder had reached t he machine t hrough a VPN


accou nt assign ed t o a f o rmer Wal-M art w o rk er in
Canada, w hich administ rat ors had f ailed t o close af t er
t he w orker lef t t he company. The day the server crashed,
t he intruder had been connected t o Wal-Mart’s net w ork
f or about seven hours, originat ing f rom an IP address in
M insk, t he document s show.
The int ruders’int erest in Wal-Mart ’s point-of -sale system
is consist ent w it h large dat a breaches t hat occurred at
ot her companies around t he same t ime.
Th is h as sh ak en t h e t r u st o f co n su m ers i n d o i n g
t ransactions at Walmart and it has subsequently reduced
t he business of Walmart t oo.
(v) Reduced Productivity
Due to the measures that many companiesmust implement
to counteract cyber crime, there is often a negative effect
on employees' productivity. This is because, due to security
measures, employees must enter more passw ords and
perform other time-consuming actsin order to do their jobs.
Every second wasted performing this task is a second not
spent working in a productive manner.
(vi) Impact on consumer trust
Since cyber-at t ackers int rude int o ot hers’space and t ry
and break the logic of the page, the end customer visiting
t he concerned page w ill be f rust rat ed and discouraged
t o use t he said sit e on a long t erm basis. The sit e in
quest ion is t ermed as t he f raudulent , w hile t he criminal
mast erminding t he hidden at t ack is not recognized as
t he root cause. This makes t he cust omer lose conf idence
in t he said sit e and in t he int ernet and it s st rengt hs.
2.5 Cy b er Cr i m e: So m e Lan d m ar k Occu r r en ce
1. Official Website of M aharashtra Government Hacked
On Sept ember, 2007 in M umbai t he off icial w ebsit e of
t he government of M aharasht ra w as hacked.
Cyber Crime Branch police got active in investigat ing the
mat t ers and t racking dow n t he hackers. For a day t he
26 Cy b er Cr i m e - Law an d Pr act i ce

w eb si t e, h t t p ://w w w.m ah ar ash t r ag o ver n m en t .i n ,


remained blocked.
Th e st at e g o ver n men t w eb si t e co n t ai n s d et ai led
inf ormat ion about government depart ment s, circulars,
report s, and several ot her t opics. IT experts w ho w orked
on rest oring t he w ebsit e t old t hat t hey f ear t hat t he
hackers may have dest royed all of the website’s content s.
A cco r d i n g t o so u r ces, t h e h ack er s m ay b e f r o m
Wash in g t on . IT exp ert s said t h at t h e h ack ers h ad
ident if ied t hemselves as “Hackers Cool Al-Jazeera” and
claimed t hey w ere based in Saudi Arabia. They added
t hat t his might be a red herring t o t hrow invest igat ors
of f t heir t rail.
The of f icial w ebsit e has been af f ect ed by viruses on
several occasions in t he past , but w as never hacked. The
of f icial added t hat t he w ebsit e had no f irew all.
2. Official Website of IRCTC Hacked
Anot her incidence of cyber crime was reported w hen t he
of ficial w ebsit e of IRCTC w as hacked and around 1 crore
cust omer’s det ails w ere put at risk 8.

Reproduced from Daily Bhaskar


3. CBI Website Hacked
In an incidence, it w as report ed in year 2013 t hat t he
of f icial w ebsit e of CBI w as hacked f or f ew hours9.
Cy b er Cr i m e - Law an d Pr act i ce 27

Reproduced from Rediff New s

4. ICICI - Pune Bank Fraud case


Three people held guilt y in on line credit card scam.
Cust omer’s credit card det ails w ere misused t hrough
online means f or booking air-t ickets. These culprits w ere
caught by the cit y Cyber Crime Investigat ion Cell in Pune.
It w as f ound that det ails misused w ere belonging t o 100
peo ple. M r. Parvesh Chauhan , ICICI Prud ent ial Lif e
Insurance of f icer had complained on behalf of one of
his cust omer. In t his regard M r. Sanjeet M ahavir Singh
Lukkad, Dharmendra Bhika Kale and Ahmead Sikandar
Shaikh w ere arrest ed. Lukkad being employed at a
privat e inst it ut ion, Kale w as his f riend. Sheikh w as
employed in one of t he branches of St at e Bank of India.
A cco r d i n g t o t h e i n f o r m at i o n p r o vi d ed b y t h e
aut horit ies, one of t he cust omers received a SM S based
alert f or purchasing of t he t icket even w hen t he credit
card was being held by him. Cust omer was alert and came
t o know somet hing w as f ishy; he enquired and came t o
know about t he misuse. He cont act ed t he Bank in t his
regard. Police observed involvement of many Bank's in
t his ref erence.
The t icket s w ere book t hrough online means. Police
request ed f or t he log details and got t he inf ormat ion of
t he Privat e Inst it ut ion. Invest igat ion revealed t hat t he
det ails w ere obt ained f rom St at e Bank of India. Sheikh
w as w orking in t he credit card depart ment ; due t o t his
he had access t o credit card det ails of some cust omers.
28 Cy b er Cr i m e - Law an d Pr act i ce

He gave t hat inf ormat ion t o Kale. Kale in ret urn passed
t h is i n f o rm at io n t o h is f rien d Lu k k ad . Usi n g t h e
inf ormation obt ained from Kale, Lukkad booked t ickets.
He used t o sell t hese tickets t o cust omers and get money
f or t he same. He had given f ew t icket s t o various ot her
inst it ut ions.
Cyber Cell was involved in eight days of invest igat ion and
f inally caught t he culprit s.
In t his regard various Banks have been cont act ed; also
f our airline indust ries w ere cont act ed and alert ed.
5. Pune Citibank M phasis Call Center fraud
It is a case of sourcing engineering. US$ 3,50,000 f rom
City bank accounts of four US cust omers were dishonest ly
transf erred to bogus account s in Pune, t hrough int ernet.
Some employees of a call cent re gained t he conf idence
of t he US cust omers and obt ained t heir PIN numbers
under t he guise of helping the cust omers out of diff icult
sit uat ions. Lat er t hey used t hese numbers t o commit
f raud. Highest securit y prevails in t he call cent res in India
as t hey know t hat t hey w ill lose t heir business. The call
cent re employees are checked w hen t hey go in and out
so t hey cannot copy dow n numbers and t heref ore t hey
could not have not ed t hese dow n. They must have
remembered t hese numbers, gone out immediately to a
cyber caf é and accessed t he Cit ibank account s of t he
cust omers. All account s w ere opened in Pune and t he
cu st omers co mplain ed t hat t h e mon ey f ro m t h eir
account s w as t ransf erred t o Pune account s and t hat ’s
how t he criminals w ere t raced. Police has been able t o
prove t he honest y of t he call cent re and has f rozen t he
account s w here t he money w as t ransf erred.
6. Parliament Attack case
Bu r eau o f Po l i ce Resear ch an d Devel o p m en t at
Hyderabad had handled some of t he t op cyber cases,
including analyzing and ret rieving informat ion f rom the
laptop recovered from seized from the two terrorists, who
w ere gunned dow n w hen Parliament w as under siege
Cy b er Cr i m e - Law an d Pr act i ce 29

on December 13, 2001, w as sent t o Comput er Forensics


Division of BPRD. The laptop contained several evidences
t hat conf irmed of t he t wo t errorists’motives, namely the
st icker of t he M inist ry of Home t hat t hey had made on
t he lapt op and past ed on t heir ambassador car t o gain
ent ry int o Parliament House and t he f ake ID card t hat
one of the tw o terrorist s was carrying with a Government
of India emblem and seal. The emblems (of t he t hree
lions) w ere carefully scanned and t he seal was also craft y
made along w it h resident ial address of Jammu and
Kashmir. But caref ul det ect ion proved t hat it w as all
f orged and made on t he lapt op.

7. Andhra Pradesh Tax case


The ow ner of a plast ics f irm in Andhra Pradesh w as
arrest ed and Rs. 22 crore cash w as recovered f rom his
house by t he Vigilance Depart ment . They sought an
explanat ion f rom him regarding t he unaccount ed cash.
The accused person submit t ed 6,000 vouchers t o prove
t he legit imacy of t rade, but af t er caref ul scrut iny of
vouchers and cont ent s of his comput ers it revealed t hat
all of them w ere made af t er t he raids were conduct ed. It
w as revealed t h at t h e accu sed w as r u n n i n g f ive
businesses under t he guise of one company and used
f ake and comput erized vouchers t o show sales records
and save t ax. Thus t he dubious t act ics of t he prominent
businessman f rom Andhra Pradesh w as exposed af t er
of f icials of t he depart ment got hold of comput ers used
by t he accused person.
8. Insulting Images of Warrior Shivaji on Google - Orkut
An Indian post s ‘insult ing images’of respect ed w arrior-
saint Shivaji on Google’s Orkut . Indian police come
knocking at Google’s gilded door demanding t he IP
address (IP uniquely ident if ies every comput er in t he
w orld) w hich is t h e source of t h is negat ive image.
Google, India hands over t he IP address.
No such incident in India w ould be complet e w it hout a
f ew administ rat ive slip-ups. The comput er w it h t hat IP
30 Cy b er Cr i m e - Law an d Pr act i ce

address is using Airt el, India as t he ISP t o connect t o t he


int ernet and Orkut . Airt el gives police t he name of an
innocent person using a dif f erent IP address. How t w o
IP addresses could be mixed-up in a sensit ive police case
is anyone’s guess.
An innocent Indian, Lakshmana Kailash K, is arrest ed in
Bangalore and throw n in jail for 3 w eeks. Eventually, his
innocence is proved and he is released in Oct , 2007.
A number of new s media report t his incident . American
cit izen and India lover Christopher Soghoian (home page
ht t p://w w w.dubf ire.net /chris/) st udies Inf ormat ics at
Indiana Universit y and researches/w rit es about securit y,
privacy and comp ut er crime. Christ op her d oes an
excellent art icle on t his t opic f or t he blogs at respect ed
t ech media group CNET.
Like all good writers, Christopher Soghoian, gives Google,
India a list of quest ions so t hat he can give a balanced
perspect ive t o t he millions of CNET readers.
9. India's First ATM Card Fraud
The Chennai Cit y Police bust ed an int ernat ional gang
involved in cyber crime, w it h t he arrest of Deepak Prem
M anw an i (22), w h o w as cau gh t red-hand ed w hile
breaking int o an ATM in t he cit y in June last , it is reliably
learnt. The dimensions of t he cit y cops' achievement can
be gauged f rom t he f act t hat t hey have net t ed a man
w ho is on t he w ant ed list of t he f ormidable FBI of t he
Unit ed St at es.
At t he t ime of his detent ion, he had wit h him Rs 7.5 lakh
k n o ck ed o f f f r o m t w o ATM s i n T Nag ar an d
Abiramipuram in t he cit y. Prior t o t hat , he had w alked
aw ay w it h Rs 50,000 f rom an ATM in M umbai. While
invest igat ing Manw ani's case, t he police st umbled upon
a cyber crime involving scores of persons across the globe.
M anw ani is an M BA drop-out f rom a Pune college and
served as a market ing execut ive in a Chennai-based firm
f or some t ime. Int erest ingly, his audacious crime career
Cy b er Cr i m e - Law an d Pr act i ce 31

st art ed in an Int ernet caf e. While brow sing t he int ernet


one day, he got at t ract ed t o a sit e w hich off ered him
assistance in breaking int o the ATM s. His contact s, sitt ing
somew here in Europe, w ere ready t o give him credit card
numbers of a f ew American banks f or $5 per card. The
sit e also of f ered t he magnet ic codes of t hose cards, but
charged $200 per code.
The operat ors of t he sit e had devised a f ascinat ing idea
t o get t he personal ident if icat ion number (PIN) of t he
card users. They float ed a new sit e w hich resembled t hat
of a reputed t elecom company's w ebsit e. That company
has millions of subscribers. The f ake sit e of f ered t he
visit o rs t o ret u rn $11.75 per h ead w hich , t h e sit e
promot ers said, had been collect ed in excess by mist ake
f rom t hem. Believing t hat it w as a genuine of f er f rom
t h e t el eco m co m p an y i n q u est i o n , sever al l ak h
subscribers logged on t o t he sit e t o get back t hat lit t le
money, but in t he process part ed w it h t heir PINs.
Armed w it h all requisit e dat a t o hack t he bank ATM s,
t he gang st art ed it s syst emat ic loot ing. Apparent ly,
M anw ani and many ot hers of his ilk ent ered int o a deal
w it h t he gang behind t he sit e and could purchase any
amount of dat a, of course on cert ain t erms, or simply
ent er int o a deal on a boot y-sharing basis. M eanw hile,
M anwani also managed t o generat e 30 plastic cards t hat
cont ained necessary dat a t o enable him t o break int o
ATM S.
He w as so ent erprising t hat he w as able t o sell aw ay a
f ew such cards t o his cont act s in M umbai. The police are
on t he lookout f or t hose persons t oo.
On receipt of large-scale complaint s from the billed credit
card users and banks in t he Unit ed Stat es, t he FBI started
an invest igat ion int o t he af f air and also alert ed t he CBI
in New Delhi t hat t he internat ional gang had developed
some links in India t oo.
M an w an i h as si n ce b een en l ar g ed o n b ai l af t er
int errogation by t he CBI. But t he cit y police believe t hat
t his is t he beginning of t he end of a major cyber crime.
32 Cy b er Cr i m e - Law an d Pr act i ce

10. Chennai’s Violation of Softw are Terms


Tw o managers of Chennai based Radiant Sof t w are a
Comp ut er Edu cat ion Company w as arrest ed f o r an
alleged violat ion of t he licensing t erms of Sof t w are. The
t op management t eam had t o obt ain ant icipat ory bail
t o avoid arrest s unt il a compromise w as w orked out .
11. Napster Case
Napst er, a very successf ul E-Vent ure w as hauled t o t he
Court and beat en t o deat h f or having caused violat ion
o f Co pyrig h t o f music co mp an ies. Desp it e w illin g
cust omers and w orking t echnology, t he business of t he
Company had t o be shelved under an enormous loss t o
t he promot ers. There are many w ebsit es in India w hich
could be held t o be inf ringing t he Pat ent right s of
so mebo dy abro ad and asked t o shu t d ow n or p ay
compensat ion put t ing an end t o t heir ent repreneurial
dreams.

***
Cy b er Cr i m e - Law an d Pr act i ce 33

Chapt er 3

In f o r m at i o n Tech n o l o g y Law : A
Bi r d ’s Ey e Vi ew

3.1 Cy b er Wo r l d v i s-a-v i s n eed o f Leg al Pr o t ect i o n


Inf ormat ion t echnology has spread t hroughout t he w orld.
The comput er is used in each and every sect or w herein
cyberspace provides equal opportunit ies t o all f or economic
growt h and human development . Along w it h this, the users
of cyberspace are grow ing increasingly in t he diverse and
t he range of online int eract ion. This has also led t o t he
opening out of t he cyber crimes like breach of online
cont ract s, perpet rat ion of online t ort s and crimes et c. t oo.
Theref ore w it h a view t o enhance t he proact ive use of
In f o r m at io n an d Co m mu n i cat i o n Tech n o lo g y w h i l e
encount ering t he occurrences of cyber crime, t here w as a
need of balanced law f or t he purposes of ensuring t he
promot ion of secured cyber t ransact ions.
While focussing on t he prevent ion of t he cyber crime, it was
realized t hat t he government should adopt a st rict law t o
regulat e criminal act ivit ies relat ing t o cyberspace and t o
provide bett er administration of justice to the victim of cyber
crime.
It has been est ablished t ime and again, t hat t he f requent
occurrence of cyber crime and a low level of legal prot ection
against cyber crime leads to decrease in online t ransact ions.
This might lead t o lack of t echnological development and
it s u t ilizat io n at par w it h global f ora. For inst an ce of
in f rin g ement o f t h e p rivacy an d vio lat io n o f d at a is
prohibit ed under Inf ormat ion Technology Act , 2000 under
sect ion 43 and 43A; if t his prot ect ion w ould not have been
p ro vid ed again st d at a t h ef t an d privacy vio lat ion in
elect ronic mode, t hen no one w ould have been int erest ed
33
34 Cy b er Cr i m e - Law an d Pr act i ce

in doing elect ronic t ransact ions f or t he w ant of privacy


prot ect ion.

In addit ion t o t his, in the modern cyber t echnology w orld it


is very much necessary t o regulat e cyber crimes and most
important ly cyber law should be made st rict er in the case of
cyber t errorism and hackers.

3.2 In f o r m at i o n Tech n o l o g y A ct , 2000: A Beg i n n i n g

M i d 90’s saw an i m p et u s i n g l o b al i zat i o n an d


co m p u t er i sat i o n , w i t h m o r e an d m o r e n at i o n s
comput erizing t heir governance, and e-commerce seeing
an enormous growt h. Until t hen, most of international trade
and t ransact ions w ere done t hrough document s being
t ransmit t ed t hrough post and by t elex only. Evidences and
records, until then, were predominantly paper evidences and
paper records or ot her f orms of hard-copies only. With much
of int ernat io nal t rad e b eing do ne t hrou gh elect ron ic
communicat ion and w it h email gaining moment um, an
u rg en t an d immin en t n eed w as f elt f o r reco g n izin g
elect ronic records i.e. t he dat a w hat is st ored in a comput er
or an ext ernal st orage at t ached t heret o.

The Unit ed Nat ions Commission on Int ernat ional Trade Law
(UNCITRAL) adopted the Model Law on e-commerce in 1996.
The General Assembly of Unit ed Nat ions passed a resolution
in January 1997 int er alia, recommending all St at es in t he
Unit ed Nat ions t o give f avourable considerat ions t o the said
M odel Law, w hich provides f or recognit ion t o elect ronic
records and according it t he same t reat ment like a paper
communicat ion and record.

Theref ore, w it h a view t o promot e elect ronic t ransact ions


and t o give f avourable considerat ion t o t he M odel Law on
e-co mmerce, t he Govern men t o f Ind ia has led t o t he
enact ment of Inf ormat ion Technology Act , 2000.

The Inf ormat ion Technology Act , 2000, w as t hus passed as


t he Act No.21 of 2000, got President ial Assent on 9 June
and w as made eff ect ive f rom 17 Oct ober, 2000.
Cy b er Cr i m e - Law an d Pr act i ce 35

3.2.1 Ob j ect i v es o f In f o r m at i o n Tech n o l o g y A ct , 2000


The Inf ormat ion Technology Act 2000 has been enact ed
w ith t he f ollowing object ives:
1. To give legal recognit ion t o any t ransact ion t his is done
by elect ronic w ay or use of int ernet
2. To g ive leg al reco g n it io n t o d ig it al sig n at u re f o r
accept ing any agreement via comput er.
3. To provide f acility of f illing document online relating t o
sch o o l ad m i ssi o n o r r eg i st rat i o n in em p l o ym en t
exchange.
4. To f acilit at e t hat any company can st ore t heir dat a in
elect ronic st orage.
5. To st op comput er crime and prot ect privacy of int ernet
users.
6. To give legal recognit ion for keeping books of account s
by bankers and ot her companies in elect ronic f orm.
7. To make more pow er t o IPO, RBI and Indian Evidence
act f or rest rict ing elect ronic crime.
The major f ocus of t he Act is t o provide legal recognit ion
f or t ransact ions carried out by means of elect ronic dat a
int erchange and other means of elect ronic communicat ion,
commonly ref erred t o as " elect ronic commerce" , w hich
involve t he use of alt ernat ives t o paper-based met hods of
communicat ion and st orage of inf ormat ion, t o f acilit at e
elect ro n ic f ilin g o f d o cumen t s w it h t h e Go vernmen t
agencies and f urt her t o amend t he Indian Penal Code, t he
Indian Evidence Act , 1872, t he Bankers' Books Evidence Act ,
1891 and the Reserve Bank of India Act, 1934 and for matt ers
connect ed t herew it h or incident al t heret o.”
The Act essent ially deals w it h t he f ollow ing issues:
• Legal Recognit ion of Elect ronic Document s.
• Legal Recognit ion of Digit al Signat ures.
• Of f enses and Cont ravent ions.
• Just ice Dispensat ion Syst ems f or cyber crimes.
36 Cy b er Cr i m e - Law an d Pr act i ce

3.3 Sco p e o f In f o r m at i o n Tech n o l o g y A ct , 2000


Every elect ronic inf ormat ion is under t he scope of I.T. Act ,
2000 but f ollow ing elect ronic t ransact ion are not under I.T.
Act 2000:
1. Inf ormat ion Technology Act , 2000 is not applicable on
t he at t est at ion f or creat ing t rust via elect ronic w ay.
Physical at t est at ion is must .
2. I.T. Act , 2000 is not applicable on t he at t est at ion f or
making w ill of any body. Physical at t est at ion by t w o
w itnesses is must .
3. A cont ract of sale of any immovable propert y.
4. At t est at ion f or giving pow er of at t orney of propert y is
not possible via elect ronic record.
3.4 A p p l i cab i l i t y o f In f o r m at i o n Tech n o l o g y A ct , 2000
Th e Act ext end s t o t he w ho le of India and except as
ot herw ise p ro vided, it applies t o also any of f ence or
cont ravent ion t here under commit t ed out side India by any
person. There are some specif ic exclusion t o t he Act (i.e.,
w here it is not applicable) as det ailed in t he First Schedule,
st at ed below :
(a) Negot iable Inst rument (Ot her than a cheque) as defined
in sect ion 13 of t he Negot iable Inst rument s Act , 1881;
(b) A pow er-of -at t orney as def ined in sect ion 1A of t he
Pow ers-of -At t orney Act , 1882;
(c) A t rust as def ined in sect ion 3 of t he Indian Trust s Act ,
1882;
(d) A w ill as def ined in clause (h) of sect ion 2 of t he Indian
Succession Act , 1925 including any ot her t est ament ary
disposition;
(e) Any cont ract f or t he sale or conveyance of immovable
propert y or any int erest in such propert y;
(f) Any such class of document s or t ransact ions as may be
not if ied by t he Cent ral Government .
Cy b er Cr i m e - Law an d Pr act i ce 37

3.5 In f o r m at i o n Tech n o l o g y A ct , 2000: A Sn ap sh o t


The Act t otally has 13 chapt ers and 94 sections (t he last four
sect ions namely sect ions 91 t o 94 in t he ITA 2000 dealt w it h
t he amendment s t o t he f our Act s namely t he Indian Penal
Code, 1860, The Indian Evidence Act , 1872; The Bankers’
Books Evidence Act , 1891 and t he Reserve Bank of India
Act , 1934). The Act begins w it h preliminary and def init ions
and f rom t here on t he chapt ers t hat f ollow deal w it h
aut hent icat ion of elect ronic records, digit al signat ures,
elect ronic signat ures et c.
Elaborat e procedures f or cert if ying aut horit ies (f or digit al
cert if icat es as per IT Act , 2000 and sin ce rep laced by
elect ronic signat ures in the ITAA, 2008) have been spelt out .
Th e ci vi l o f f en ce o f d at a t h ef t an d t h e p r o cess o f
ad j u d i cat i o n an d ap p el l at e p r o ced u r es h ave b een
described. Then the Act goes on t o define and describe some
o f t h e w el l-k n o w n cyb er cri mes an d l ays d o w n t h e
punishment s t heref ore.
Then t he concept of due diligence, role of int ermediaries
and some miscellaneous provisions have been described.
Rules and procedures ment ioned in t he Act have also been
laid dow n in a phased manner, w it h t he lat est one on t he
def init ion of privat e and sensit ive personal dat a and t he
role of int ermediaries, due diligence et c., being def ined as
recent ly as April 2011.
There are 13 chapt ers in law and all provision is included in
t his chapters.
Chapter I : Preliminary
This chapt er deals w it h t he int roduct ion applicabilit y and
scope of t he Act .
Chapter II : Digital Signature and Electronic Signature
This chapt er st at es t hat any cont ract w hich is done by
subscriber can be execut ed t hrough online medium t oo; if
he signs the electronic agreement by digital signat ure. Then
it w ill be valid and w ill be called e-cont ract . In t his case t he
38 Cy b er Cr i m e - Law an d Pr act i ce

verif icat ion of digit al signat ure can be on t he basis of key


pair.
Chapter III : Electronic Governance
This chapter explains t he det ail t hat all elect ronic records of
government are accept able unless any ot her law has any
rules regarding w rit t en or print ed record.
Chapter IV : Attribution, Acknow ledgement and Dispatch
of Electronic Records
This chapt er deals with receipt s or acknow ledgement of any
electronic record. Every electronic record has any proof t hat
is called receipt and it should be in t he hand w ho records
elect ronic way.
Chapter V : Secure Electronic Records and Secure Electronic
Signatures
This chapt er d iscusses t he po w ers t o org anizat ion f or
securing the elect ronic records and secure digit al signat ure.
They can secure by applying any new verif icat ion syst em.
Chapter VI : Regulation of Certifying Authorities
This chapt er st at es t hat government of India w ill appoint
cont roller of cert if ying aut horit ies and he w ill cont rol all
act ivit ies of cert if ying aut horit ies. “Cert if ying aut horit y is
t hat aut horit y w ho issues digit al signat ure cert if icat e.”
Chapter VII : Electronic Signature Certificates
In t his chapt er pow ers and dut ies of cert if ying aut horit y is
given. Cert ifying Aut hority (C.A.) w ill issue digit al signat ure
cert if icat ion af t er get t ing Rs. 25000. If it is against public
int erest , t hen C.A. can su spen d t h e d ig it al sig nat ure
certificate.
Chapter VIII : Duties of Subscribers
This chapt er t ells about t he dut ies of subscribers regarding
digit al signat ure cert if icat e. It is t he dut y of subscriber t o
accept that all information in digital signature certificate that
is w ithin his know ledge is t rue.
Cy b er Cr i m e - Law an d Pr act i ce 39

Chapter IX : Penalties, Compensation and Adjudication


If anybody or group of body damages t he comput ers,
comput er syst ems and comput er net w orks by elect ronic
hacking, t hen t hey are responsible t o pay penalt y upt o Rs.
1 crore .
Chapter X : The Cyber Appellate Tribunal
Under t his chapt er, provisions are given t o est ablish cyber
regulation appellat e t ribunal. It w ill solve t he cases relating
t o orders of adjudicat ing of f icers.
Chapter XI : Offences
For controlling Cyber Crime, government can appoint cyber
regulation advisory committee who w ill check all cyber crime
relating to publishing others information. If any fault is done
by anybody, he w ill be liable f or paying Rs. 2 lakh or
punishment of 3 years imprisonment or bot h.
Chapter XII : Intermediaries not to be liable in certain cases
The Chapt er st at es t hat in cert ain cases int ermediaries’
cannot t o be held liable. This chapt er ow es it s genesis f rom
t he Bazee.com case.10
Chapter XII-A : Examination of Electronic Evidences
Police of f icers have also pow er t o invest igat e dangerous
cyber crime under Indian Penal Code, 1860; Indian Evidence
Act , 1872; and Reserve Bank of India Act , 1934.
Chapter XIII : M iscellaneous
3.6 In f o r m at i o n Tech n o l o g y (A m en d m en t ) A ct , 2008
Being t he f irst legislat ion in t he nat ion on t echnology,
comput ers and ecommerce and e-communicat ion, t he Act
w as the subject of ext ensive debat es, elaborate reviews and
det ailed crit icisms, w it h one arm of t he indust ry crit icizing
some sect ions of t he Act t o be draconian and ot her st at ing
it is t oo dilut ed and lenient . There w ere some conspicuous
omissions too result ing in t he investigat ors relying more and
more on t he t ime-t est ed (one and half cent ury-old) Indian
Penal Code even in t echnology based cases w it h t he I.T. Act
also being ref erred in t he process and t he reliance more on
IPC rat her on t he Inf ormat ion Technology Act , 2000.
40 Cy b er Cr i m e - Law an d Pr act i ce

Thus in t he light of ongoing changes, t he need w as f elt f or


m ak i n g a d et ai l ed am en d m en t i n t h e In f o r m at i o n
Technology Act, 2000. Major industry bodies were consulted
and advisory groups w ere f ormed t o go int o t he perceived
lacun ae in t he I.T. Act an d comparin g it w it h similar
legislat ions in ot her nat ions and t o suggest recommen-
d at io n s. Su ch reco m men d at i o n s w er e an al ysed an d
subsequent ly taken up as a comprehensive Amendment Act
and af t er considerable administ rat ive procedu res, t he
co n so l i d at ed am en d m en t cal l ed t h e In f o r m at i o n
Tech n olo g y Amen d men t Act 2008 w as p laced in t h e
Parliament and passed w it hout much debat e, t ow ards t he
end of 2008 (by w hich t ime t he M umbai t errorist at t ack of
26 November, 2008 had t aken place).
This Amendment Act got t he President ial assent on 5 Feb
2009 and w as made ef f ect ive f rom 27 Oct ober 2009.
Some of t he not able f eat ures of t he ITAA are as f ollow s:
• Focussing on dat a privacy
• Focussing on Inf ormat ion Securit y
• Def ining cyber caf é
• M aking digit al signat ure t echnology neut ral
• Def ining reasonable securit y practices t o be follow ed by
corporat e
• Redef ining t he role of int ermediaries
• Recognising t he role of Indian Comput er Emergency
Response Team
• Inclusion of some addit ional cyber crimes like child
pornography and cyber t errorism
• Aut horizing an Inspect or t o invest igat e cyber of f ences
(as against t he DSP earlier)
3.7 Reco m p en se o f In f o r m at i o n Tech n o l o g y Law
Follow ing are t he major advant ages of having a law t o
regulat e Inf ormat ion and Communicat ion Technology:
1. Promotion of E-commerce
Above all t hings validit y in eye of Indian law is very
Cy b er Cr i m e - Law an d Pr act i ce 41

necessary. Af ter t he enact ment of IT Act , 2000, all above


t hings are valid and t hese t hings are very helpf ul t o
promot e e-commerce in India.
• Helpf ul t o promot e e-commerce
• Email communicat ion is valid and source of legal
evidence and aut hent icat ion
• Digital signat ure is validat ed
• Payment via credit card is valid and under the contour
of law
• Online cont ract s are valid and enf orceable
2. Enhance the corporate business
Af t er issuing digit al signat ure, cert if icat e by Cert if ying
aut horit y, now Indian corporat e business can enhance.
3. Filling online forms
Af t er providing f acilit y, f illing online f orms f or different
purposes has become so easy.
4. High penalty for cyber crime
Law has pow er t o penalize f or doing any cyber crime.
Af t er enact ing t his law, t he number of cyber crimes has
reduced.
3.8 Li m i t at i o n o f In f o r m at i o n Tech n o l o g y Law
The law is suf f ering f rom f ollow ing w eaknesses:
1. Inf ringement of copyright has not been included in t his
law.
2. No prot ect ion f or domain names.
3. The act is not applicable on t he pow er of at t orney, trust s
and w ill.
4. Act is silent on t axat ion.
5. No, provision of payment of st amp dut y on elect ronic
document s.

***
42 Cy b er Cr i m e - Law an d Pr act i ce

Chapt er 4

Leg al Pr o t ect i o n ag ai n st
Cy b er Cr i m es
Cybercrimes are a new class of crimes w hich are increasing day
by day due t o ext ensive use of int ernet t hese days. To combat t he
crimes relat ed t o int ernet t he Inf ormat ion Technology Act , 2000
w as en act ed w it h p r im e o b ject i ve t o cr eat e an en ab l in g
environment f or commercial use of I.T. The IT Act specif ies t he act s
w hich have been made punishable. The Indian Penal Code, 1860
has also been amended t o t ake int o it s purview cybercrimes. The
various of f enses relat ed t o int ernet w h ich have been made
punishable under t he IT Act and t he IPC are enumerat ed below :
4.1 Cr i m i n al Li ab i l i t i es u n d er In f o r m at i o n Tech n o l o g y
A ct , 2000
• Sec.65: Tampering w it h Comput er source document s
• Sec.66: Hacking with Comput er syst ems, Data alt eration and
ot her comput er relat ed Of f ences
• Sec. 66A: Pu nishment f o r sen din g of f ensive messag es
t hrough communicat ion service et c.
• Sec. 66B: Pu nishmen t f or dish on est ly receiving st olen
comput er resource or communicat ion device
• Sec. 66C: Punishment f or ident it y t hef t
• Sec. 66D: Punishment f or Cheat ing by personat ing by using
comput er resource
• Sec. 66E: Punishment f or Violat ion of Privacy
• Sec. 66F: Punishment f or Cyber Terrorism
• Sec.67: Publishing obscene inf ormat ion
• Sec. 67A: Punishment f or publishing or t ransmit t ing of
mat erial cont aining sexually explicit act , et c. in elect ronic
f orm
42
Cy b er Cr i m e - Law an d Pr act i ce 43

• Sec. 67B: Punishment f or Child Pornography


• Sec. 67C: Preservat ion and Ret ent ion of Inf ormat ion by
Int ermediaries
• Sec.70: Un-aut horized access t o prot ect ed syst em
• Sec. 70A: Nat ional Nodal Agency
• Sec. 70B: CERT-in
• Sec. 71: Penalt y f or M isrepresent at ion
• Sec.72: Breach of Conf ident ialit y and Privacy
• Sec.73: Publishing f alse digit al signat ure cert if icat es
• Sec. 74: Publicat ion f or f raudulent purposes
The criminal provisions of t he IT Act and t hose dealing wit h
cognizable of f ences and criminal act s f ollow f rom Chapt er
IX t it led “Of f ences”
Sect io n 65 : Whoever know ingly or intentionally conceals,
dest roys or alt ers or intent ionally or know ingly causes
another to conceal, destroy or alter any computer source
code used for a computer, computer programme, computer
system or computer netw ork, w hen the computer source
code is required to be kept or maintained by law for the
time being in force, shall be punishable w ith imprisonment
up to three years, or w ith fine w hich may extend up to tw o
lakh rupees, or w ith both.
Explanation— For the purposes of this section, “computer
source code” means the listing of programmes, computer
Commands, design and layout and programme analysis of
computer resource in any form.
This section deals with Tampering with computer source code
and related documents. Concealing, destroying, and alt ering
any comput er source code w hen t he same is required t o be
kept or maint ained by law is an of f ence punishable w it h
t hree years imprisonment or t w o lakh rupees or w it h bot h.
Fabricat ion of an elect ronic record or commit t ing f orgery
by w ay of int erpolat ions in CD produced as evidence in a
court (Bhim Sen Garg vs State of Rajasthan and others11)
44 Cy b er Cr i m e - Law an d Pr act i ce

at t ract punishment under t his Sect ion. Comput er source


code under t his Sect ion refers t o t he list ing of programmes,
comput er commands, design and layout et c. in any f orm.
Case Law s
(i) Frios vs State of Kerala12
Facts : In t his case it w as declared t hat t he FRIENDS
applicat ion sof t w are as prot ect ed syst em. The aut hor of
t he applicat ion challenged t he not if icat ion and t he
const it ut ional validity of soft w are under Section 70. The
court upheld t he validit y of bot h. It included tampering
w it h source code. Comput er source code t he elect ronic
f orm, it can be print ed on paper.
Held : The court held t hat t ampering w it h Source code
are punishable w it h t hree years jail and or t w o lakh
rupees f ine of rupees t w o lakh rupees f or alt ering,
concealing and dest roying t he source code.
(ii) Syed Asifuddin And Ors. vs The State of Andhra Pradesh 13
Facts : In t his case t he Tat a Indicom employees w ere
arrest ed f or manipulat ion of t h e elect ronic 32- bit
number (ESN) programmed int o cell phones, thef t w ere
exclusively f ranchised t o Reliance Inf ocom.
Held : Court held t hat Tampering w it h source code
invokes Sect ion 65 of t he Inf ormat ion Technology Act .
(iii) State vs M ohd. Afzal And Others14 (Parliament Attack
Case)
Fact s : In t his case several t errorist at t acked on 13
December, 2001 Parliament House. In t his t he Digit al
evi d en ce p l ayed an i m p o r t an t r o le d u r i n g t h ei r
prosecut ion. The accused argued t hat comput ers and
evidence can easily be t ampered and hence should not
be relied.
In Parliament case several smart device storage disks and
d evices, a Lap t o p w ere reco vered f ro m t h e t ru ck
int ercept ed at Srinagar pursuant t o inf ormat ion given
by t w o suspect s. The lapt op included t he evidence of
Cy b er Cr i m e - Law an d Pr act i ce 45

f ake ident it y cards, video f iles cont aining clips of t he


polit ical leaders w it h t he background of Parliament in
the background shot from T.V. new s channels. In this case
design of M inist ry of Home Aff airs car st icker, t here w as
game “wolf pack” w ith user name of “Ashiq”. There w as
t he name in one of t he f ake ident it y cards used by t he
t er r o r i st . No b ack u p w as t ak en t h er ef o re it w as
challenged in t he Court .
Held : Challenges t o t he accuracy of comput er evidence
should be established by the challenger. Mere t heoretical
and generic doubt s cannot be cast on t he evidence.
Sect i o n 66 : If any person, dishonestly or fraudulently,
does any act ref erred t o in sect ion 43, he shall be
punishable w ith imprisonment for a term w hich may
extend to three years or w ith fine w hich may extend to
five lakh rupees or w ith both.
Explanation.— For the purpose of this section,—
(a) Th e w ord “d ish onest y” sh all have t he meaning
assigned to it in section 24 of the Indian Penal Code
(45 of 1860).
(b) The w ord “f raudulent ly” shall have the meaning
assigned to it in section 25 of the Indian Penal Code
(45 of 1860).
Comput er relat ed of f ences are dealt w it h under t his
Sect ion. Data thef t stat ed in Sect ion 4315 is referred t o in
t his Sect ion. Whereas it w as a plain and simple civil
off ence wit h t he remedy of compensat ion and damages
only, in t hat Sect ion, here it is t he same act but w it h a
criminal int ent ion t hus making it a criminal off ence. The
act of dat a t hef t or t he of f ence st at ed in Sect ion 43 if
done dishonest ly or f raudulent ly becomes a punishable
of f ence under t his Sect ion and at t ract s imprisonment
upt o t hree years or a f ine of f ive lakh rupees or bot h.
Earlier hacking w as def ined in Sec 66 and it w as an
of f ence.
Now af t er t he amendment , dat a t hef t of Sect ion 43 is
46 Cy b er Cr i m e - Law an d Pr act i ce

being ref erred t o in Sect ion 66 by making t his sect ion


more purposeful and t he w ord ‘hacking’is not used. The
w ord ‘hacking’w as earlier called a crime in t his Sect ion
and at t he same t ime, courses on ‘et hical hacking’w ere
also t aught academically. This led t o an anomalous
sit uat ion of people asking how an illegal act ivit y be
t aught academically w it h a w ord ‘et hical’pref ixed t o it .
Then can t here be t raining programmes, f or inst ance,
on “Et hical burglary”, “Et hical Assault ” et c. say f or
courses on physical defence? This tricky situation w as put
an end t o, by t he ITAA w hen it re-phrased t he Sect ion
66 by mapping it w it h t he civil liability of Sect ion 43 and
remo ving t h e w o rd ‘Hackin g’. How ever t he act of
hacking is st ill cert ainly an of f ence as per t his Sect ion,
t hough some expert s int erpret ‘hacking’as generally for
good purposes (obviously t o f acilit at e naming of t he
courses as et hical hacking) and ‘cracking’ f or illegal
p u r p o ses. It w o u ld b e rel evan t t o n o t e t h at t h e
t echnology involved in bot h is t he same and t he act is
t he same, w hereas in ‘hacking’ t he ow ner’s consent is
obt ained or assumed and t he lat t er act ‘cracking’ is
perceived t o be an of f ence.
Case Law s
1. R vs. Gold & Schifreen 16
In t his case it is observed t hat t he accused gained access
t o t he Brit ish t elecom Prest ly Gold comput ers net w orks
f ile amount t o dishonest t rick and not criminal of f ence.
2. R vs. Whiteley17
In t his case t he accused gained unaut horized access t o
the Joint Academic Netw ork (JANET) and deleted, added
f iles and changed t he passw ords t o deny access t o t he
authorized users.Invest igations had revealed t hat Kumar
w as lo g g in g o n t o t h e BSNL b ro ad b an d In t ern et
connect ion as if he w as t he authorized genuine user and
‘made alt erat ion in t he comput er dat abase pert aining
t o broadband Int ernet user account s’of t he subscribers.
The CBI had registered a cyber crime case against Kumar
Cy b er Cr i m e - Law an d Pr act i ce 47

and carried out investigat ions on t he basis of a complaint


b y t h e Press In f o rmat ion Bu reau , Ch en n ai, w h ich
det ect ed t he unaut horised use of broadband Int ernet .
The complaint also st at ed t hat t he subscribers had
incurred a loss of Rs 38,248 due to Kumar’s w rongf ul act .
He used t o ‘hack’ sit es f rom Bangalore, Chennai and
ot her cit ies t oo, t hey said.
Verdict: The Additional Chief M etropolitan M agistrate,
Egmore, Chennai, sentenced N G Arun Kumar, the techie
from Bangalore to undergo a rigorous imprisonment for
one year w ith a fine of Rs 5,000 under section 420 IPC
(cheating) and Section 66 of IT Act (Computer related
Offense).
Thanks t o ITAA, Sect ion 66 is now a w idened one w it h a
list of of f ences as follow s:
66 A : Pun ish ment f o r send ing o f f ensive messages
through communication service, etc.— Any person w ho
sen d s, b y m ean s o f a co m p u t er r eso u r ce o r a
communicat ion device,— (a) any information that is
grossly offensive or has meaning character, or (b) any
information w hich he know s to be false, but for the
purpose of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity,
hat red or ill w ill, persist ently by making use of such
computer resource or a communication device; or (c) any
electronic mail or electronic mail message for the purpose
of causing annoyance or inconvenience or to deceive or
to mislead the addressee or recipient about the origin
of such message, shall be punishable w ith imprisonment
for a term w hich may extend to three years and w ith
fine.
Explanation.— For the purposes of this section, terms
“electronic mail” and “electronic mail message” means
a message or information creat ed to t ransmitt ed or
received on a computer, computer system, comput er
resource or communication device including attachments
in text, image, audio, video and any other electronic
record, w hich may be transmitted w ith the message.
48 Cy b er Cr i m e - Law an d Pr act i ce

The sect ion covers t he of f ences like sending of f ensive


messag es t h rou gh co mmu nicat ion service, cau sin g
annoyance et c. through an electronic communicat ion or
sending an email t o mislead or deceive t he recipient
about t he origin of such messages (commonly know n as
IP or email spoof ing).
Punishment f or t hese act s is imprisonment up t o t hree
years or f ine.
Case Law s
Fak e p r o f i l e o f Pr esi d en t p o st ed b y i m p o st er
On Sept ember 9, 2010, t he impost er made a f ake prof ile in
t he name of t he Hon’ble President Smt . Prat ibha Devi Singh
Pat il. A complaint w as made f rom Addit ional Cont roller,
President Household, President Secret ariat regarding t he
f our f ake prof iles creat ed in t he name of Hon’ble President
on social netw orking w ebsit e, Facebook. The said complaint
st at ed t hat president house has not hing t o do w it h t he
f acebook and t he f ake prof ile is misleading t he general
public. The First Inf ormat ion Report under Sect ions 469 IPC
and 66A Inf ormat ion Technology Act , 2000 w as regist ered
based on t he said complaint at t he police st at ion, Economic
Of f en ces Win g , t h e elit e w ing o f Delh i Po lice w hich
specializes in invest igat ing economic crimes including cyber
off ences.
Bo m b Ho ax m ai l
In 2009, a 15-year-old Bangalore t eenager w as arrest ed by
t he cyber crime invest igat ion cell (CCIC) of t he cit y crime
branch for allegedly sending a hoax e-mail t o a privat e news
channel. In the e-mail, he claimed to have planted five bombs
in M umbai, challenging t he police t o f ind t hem bef ore it
w as too lat e. At around 1 p.m. on M ay 25, the new s channel
received an e-mail t hat read: “I have plant ed f ive bombs in
M umbai; you have t w o hours t o f ind it .” The police, w ho
w ere alert ed immediat ely, t raced t he Int ernet Prot ocol (IP)
address t o Vijay Nagar in Bangalore. The Int ernet service
provider f or t he account w as BSNL, said of f icials.
Cy b er Cr i m e - Law an d Pr act i ce 49

66B Punishment for dishonestly receiving stolen computer


resource or communication device.—
Whoever dishonestly receives or retains any stolen computer
resource or communicat ion device know ing or having
reason to believe the same to be stolen computer resource
o r co m m u n i cat i o n d evi ce, sh al l b e p u n i sh ed w i t h
imprisonment of either description for a term w hich may
extend to three years or w ith fine w hich may extend to
rupees one lakh or w ith both.
The sect ion clearly st at es t hat dishonest ly receiving st olen
computer resource or communicat ion device w ill be leading
t o t he punishment upt o t hree years or one lakh rupees as
f ine or bot h.
66C Punishment for identity theft -
Whoever, fraudulent ly or dishonest ly makes use of the
el ect ro n ic sig n at u re, p assw o rd o r an y o t h er u n iq u e
identification feature of any other person, shall be punished
w ith imprisonment of either description for a term w hich
may extend to three years and shall also be liable to fine
w hich may extend to rupees one lakh.
Elect ronic signature or other identity t hef t like using ot hers’
passw ord or elect ronic signat ure et c.
Punishment is three years imprisonment or fine of one lakh
rupees or bot h.
66D : Punishment for cheating by personation by using
computer resource
Who ever, by mean s o f an y co mmun icat io n d evice o r
computer resource cheat s by personat ion, shall be punished
w it h imprisonment of eit her descript ion f or a t erm w hich
may ext end t o t hree years and shall also be liable t o f ine
w hich may ext end t o one lakh rupees.
In accordance w it h t his sect ion, Cheat ing by personat ing
using comput er resource or a communicat ion device shall
be punished w it h imprisonment of eit her descript ion f or a
t erm w hich ext end t o t hree years and shall also be liable t o
f ine w hich may ext end t o one lakh rupees.
50 Cy b er Cr i m e - Law an d Pr act i ce

Case Law s
Sandeep Vaghese vs. State of Kerala18
A complaint filed by the represent ative of a Company, which
w as engaged in t he business of t rading and dist ribut ion of
pet rochemicals in India and overseas, a crime w as registered
against nine persons, alleging of f enses under Sect ions 65,
66, 66A, C and D of t he Inf ormat ion Technology Act along
w it h Sect ions 419 and 420 of t he Indian Penal Code.
Th e co mp an y h as a w eb -si t e in t h e n am e an d st yle
`w w w.jayp olychem.co m’ b ut , ano t her w eb sit e `w w w.
jayplychem.org’w as set up in t he int ernet by f irst accused
Samdeep Varghese @ Sam, (w ho w as dismissed f rom t he
company) in conspiracy w ith ot her accused, including Preet i
and Charanjeet Singh, w ho are t he sist er and brot her-in-
law of `Sam’.
Def amatory and malicious mat t ers about t he company and
its directors were made available in that website. The accused
sist er and brot her-in-law were based in Cochin and t hey had
been acting in collusion with know n and unknown persons,
w ho have collect ively cheated the company and commit ted
act s of f orgery, impersonat ion et c.
Tw o of t he accused, Amardeep Singh and Rahul had visit ed
Delhi and Cochin. The f irst accused and ot hers sent e-mails
f rom f ak e e-mail acco unt s o f many of t he cu st o mers,
suppliers, Bank et c. t o malign t he name and image of t he
Company and it s Direct ors. The def amat ion campaign run
by all t he said persons named above has caused immense
damage t o t he name and reput at ion of t he Company.
The Company suf fered losses of several crores of Rupees from
producers, suppliers and cust omers and w ere unable t o do
business.
66E Punishment for violation of privacy
Whoever, intentionally or know ingly captures, publishes or
transmits the image of a private area of any person without
his or her consent, under circumstances violating the privacy
of that person, shall be punished w ith imprisonment w hich
Cy b er Cr i m e - Law an d Pr act i ce 51

may extend to three years or w ith fine not exceeding tw o


lakh rupees, or w ith both
Explanation.- For the purposes of this section--
(a) “transmit” means to electronically send a visual image
w ith the intent that it be view ed by a person or persons;
(b) “capture”, with respect to an image, means to videotape,
photograph, film or record by any means;
(c) “private area” means the naked or undergarment clad
genitals, pubic area, buttocks or female breast;
(d) “pu blishes” mean s reprod uct ion in t he p rint ed o r
electronic form and making it available for public;
(e) “u n d er ci r cu m st an ces vi o l at i n g p r i vacy” m ean s
circumstances in w hich a person can have a reasonable
expectation that--
(i) he or she could disrobe in privacy, w ithout being
concerned that an image of his private area was being
captured; or
(ii) any part of his or her private area would not be visible
to the public, regardless of w hether that person is in
a public or private place.
Dat a Pr o t ect i o n an d Pr i v acy
This sect ion deals with the punishment f or Privacy violat ion–
Pub lishin g or t ransmit t ing privat e area of any person
w it hout his or her consent et c. Punishment is t hree years
imprisonment or t w o lakh rupees f ine or bot h. This sect ion
needs t o be read along w it h sect ion 43 and Sect ion 43A
w hich creat es civil remedies f or dat a t hef t w herein sect ion
66 E provides criminal liability for t he gross violat ion of one’s
privacy.
Cases
(i) Jaw aharlal Nehru University M M S scandal
In a severe shock t o t he prest igious and renow ned
inst it ut e – Jaw aharlal Nehru Universit y, a pornographic
52 Cy b er Cr i m e - Law an d Pr act i ce

M M S clip w as apparent ly made in t he campus and


t ransmit t ed out side t he universit y. Some media report s
claimed t hat t he t w o accused st udent s init ially t ried t o
ext ort money f rom t he girl in t he video but w hen t hey
f ailed t he culprit s put t he video out on mobile phones,
on t he int ernet and even sold it as a CD in t he blue f ilm
market .
(ii) Nagpur Congress leader’s son M M S scandal
On Jan u ary 05, 2012 Nag p u r Po lice arrest ed t w o
engineering st udent s, one of t hem a son of a Congress
leader, f or harassing a 16-year-old girl by circulat ing an
M M S clip of t heir sexual act s. According t o t he Nagpur
(rural) police, the girl was in a relat ionship w ith M ithilesh
Gajbhiye, 19, son of Yashodha Dhanraj Gajbhiye, a zila
parishad member and an inf luent ial Congress leader of
Saoner region in Nagpur dist rict .
66F Punishment For Cyber Terrorism
(1) Whoever -
(A) With intent to threaten the unity, integrity, security
or sovereignty of India or to strike terror in the
people or any section of the people by –
• denying or cause the denial of access to any
p er so n au t h o r i zed t o access co m p u t er
resource; or
• attempting to penetrate or access a computer
resource w ithout authorisation or exceeding
authorized access; or
• in t ro d u cin g o r cau si n g t o in t ro d u ce an y
Computer Contaminant and by means of such
conduct causes or is likely to cause death or
injuries to persons or damage to or destruction
of property or disrupts or know ing that it is
likely to cause damage or disruption of supplies
or services essential to the life of the community
or adversely af f ect t he crit ical inf ormat ion
infrastructure specified under section 70, or
Cy b er Cr i m e - Law an d Pr act i ce 53

(B) know ingly or intentionally penetrates or accesses


a computer resource w ithout aut horizat ion or
exceeding authorized access, and by means of
such conduct obtains access to information, data
or computer database that is restricted for reasons
of the security of the State or foreign relations; or
any rest rict ed inf ormat ion, dat a or comput er
d at ab ase, w it h reaso n s t o b elieve t hat su ch
in f o rmat io n , d at a o r co mp u t er d at ab ase so
obtained may be used to cause or likely to cause
injury t o t he int erest s of t he sovereignt y and
integrity of India, the security of the State, friendly
relations w ith foreign States, public order, decency
or morality, or in relation to contempt of court,
defamation or incitement to an offence, or to the
ad van t ag e o f an y f o reig n n at io n , g ro u p o f
individuals or otherw ise, commits the offence of
cyber terrorism.
(2) Whoever commits or conspires to commit cyber terrorism
shall be punishable with imprisonment which may extend
to imprisonment for life’.
Critique : We f ind t he t erminology in mult iple sect ions
t oo vague t o ensure consist ent and f air enf orcement .
The concept s of ‘annoyance’and ‘insult ’are subject ive.
Clause (d) makes it clear t hat phishing request s are not
permit t ed, but it is not clear t hat one cannot ask f or
inf ormat ion on a class of individuals.
Cy b er t erro rism – Intent t o threaten the unity, integrit y,
securit y or sovereignt y of the nat ion and denying access
t o any p erso n au t h o rized t o access t h e co mp u t er
resource or att empting t o penetrate or access a computer
reso urce w it h ou t au t h o rizat ion . Act s of cau sin g a
computer cont aminant (like virus or Trojan Horse or other
spyw are or malw are) likely t o cause deat h or injuries t o
persons or damage t o or dest ruct ion of propert y et c.
come under this Section. Punishment is life imprisonment.
It may be observed t hat all act s under Sect ion 66 are
cognizable and non-bailable of f ences. Int ent ion or t he
54 Cy b er Cr i m e - Law an d Pr act i ce

know ledge t o cause w rongf ul loss t o ot hers i.e. t he


exist ence of criminal int ent ion and t he evil mind, i.e.,
concept of mens rea, dest ruct ion, delet ion, alt erat ion or
diminishing in value or ut ilit y of dat a are all t he major
ingredient s t o bring any act under t his Sect ion.
To summarise, w hat w as civil liabilit y w it h ent it lement
f or compensations and damages in Sect ion 43, has been
ref erred t o here, if commit t ed w it h criminal int ent ,
making it a criminal liabilit y attracting imprisonment and
f ine or bot h.
Cases
Th r eat M ai l t o BSE an d NSE19
In M ay 5, 2009, t he M umbai police have registered a case of
‘cyber t errorism’— t he f irst in the st at e since an amendment
t o t he Inf ormat ion Technology Act — w here t hreat s email
w as sent to the BSE and NSE on May 4, 2009. The MRA M arg
police and t he Cyber Crime Invest igat ion Cell are joint ly
probing the case. The suspect has been det ained in this case.
The police said an email challenging t he securit y agencies
t o prevent a t error at t ack w as sent by one Shahab M d w it h
an ID sh.it aiyeb125@yahoo.in t o BSE’s administ rat ive email
ID corp.relat ions@bseindia.com at around 10.44 am on
M onday. The IP address of t he sender has been t raced t o
Pat na in Bihar. The ISP is Sif y. The email ID w as creat ed just
f our minut es bef ore t he email w as sent . “The sender had,
w hile creat ing t he new ID, given t w o mobile numbers in
t he personal det ails column. Bot h t he numbers belong t o a
phot o f rame-maker in Pat na,’’said an off icer.
Status : The M RA M arg police have regist ered f orgery f or
purpose of cheat ing, criminal int imidat ion cases under t he
IPC and a cyber-t errorism case under t he IT Act , 2000.
Sect i o n 67 : Publishing of information w hich is obscene in
electronic form
Whoever publishes or transmits or causes to be published in
the electronic form, any material which is lascivious or appeals
to the prurient interest or if its effect is such as to tend to
Cy b er Cr i m e - Law an d Pr act i ce 55

deprave and corrupt persons w ho are likely, having regard


to all relevant circumstances, to read, see or hear the matter
contained or embodied in it, shall be punished on first
conviction with imprisonment of either description for a term
w hich may extend to tw o three years and w ith fine w hich
may extend to five lakh rupees and in the event of a second
or subsequent convict ion w it h imprisonment of eit her
description for a term w hich may extend to five years and
also w ith fine w hich may extend to ten lakh rupees.
This sect ion deals w it h publishing or t ransmit t ing obscene
mat erial in elect ronic f orm. The earlier Sect ion in ITA, 2000
w as lat er w id en ed as p er ITAA, 2008 i n w h ich ch ild
pornography and ret ent ion of records by int ermediaries
w ere all included.
Publishing or t ransmit t ing obscene mat erial in elect ronic
f orm is dealt w it h here. Whoever publishes or transmit s any
material which is lascivious or appeals to t he prurient interest
or if it s ef f ect is such as t o t end t o deprave and corrupt
persons w ho are likely t o read t he mat t er cont ained in it ,
shall be punished w ith f irst conviction f or a term upt o t hree
years and f ine of f ive lakh rupees and in second convict ion
f or a t erm of f ive years and f ine of t en lakh rupees or bot h.
This Sect ion is of hist orical import ance since t he landmark
ju dg emen t in w hat is co nsid ered t o b e t h e f irst ever
convict ion under I.T. Act , 2000 in India, w as obt ained in t his
Section in the famous case State of Tamil Nadu vs.Suhas Katti 20
on 5 November, 2004. The st rengt h of t he Sect ion and t he
reliabilit y of elect ronic evid ences w ere proved by t he
prosecut ion and convict ion w as brought about in t his case,
involving sending obscene message in the name of a married
w omen amount ing t o cyber st alking, email spoof ing and
t he criminal act ivit y st at ed in this Sect ion.
Case Law s
1. The State of Tamil Nadu vs. Suhas Katti 21
Facts : This case is about post ing obscene, def amat ory
and annoying message about a divorcee w oman in t he
Yahoo message group. E-mails w ere f orw arded t o t he
56 Cy b er Cr i m e - Law an d Pr act i ce

vict im f or inf ormat ion by t he accused t hrough a f alse e-


mail account opened by him in t he name of t he vict im.
These post ings result ed in annoying phone calls t o t he
lady. Based on t he complaint police nabbed t he accused.
He w as a know n f amily f riend of t he vict im and w as
int erest ed in marrying her. She married t o anot her
person, but t hat marriage ended in divorce and t he
accused st art ed cont act ing her once again. And her
reluctance t o marry him he started harassing her through
int ernet .
Held : The accused is f ound guilt y of of f ences under
sect ion 469, 509 IPC and 67 of IT Act , 2000 and t he
accused is convict ed and is sent enced f or t he of f ence t o
un derg o Rigorous Imp riso nment f or 2 years und er
sect ion 469 IPC and t o pay f ine of Rs.500/-and f or t he
of f ence u/s 509 IPC sent enced t o undergo 1 year Simple
imprisonment and t o pay f ine of Rs.500/- and f or t he
of f ence u/s 67 of IT Act 2000 t o undergo Rigorous
Imprisonment f or 2 years and t o pay f ine of Rs.4000/- All
sent ences t o run concurrent ly.‘
The accused paid f ine amount and he w as lodged at
Cent ral Prison, Chennai. This is considered t he f irst case
convict ed under sect ion 67 of Inf ormat ion Technology
Act 2000 in India.
In a recent case, a groom's f amily received numerous
emails cont aining def amat ory inf ormat ion about t he
prospect ive bride. Fort unat ely, t hey did not believe t he
emails and chose t o t ake t he mat t er t o t he police. The
sender of t he emails t urned out t o be t he girl's st ep-
f at her, w ho did not w ant t he girl t o get married, as he
w ould have lost cont rol over her propert y, of w hich he
w as t he legal guardian.
2. Avnish Bajaj vs. State22
Th is i s f am o u sl y k n o w n as A vn ish Baj aj (CEO o f
b azzee.co m – n o w a p ar t o f t h e eBay g r o u p o f
companies) case.
Facts : There w ere t hree accused f irst is t he Delhi school
Cy b er Cr i m e - Law an d Pr act i ce 57

boy and IIT Kharagpur Ravi Raj and t he service provider


Avnish Bajaj.
The law on t he subject is very clear. The sect ions slapped
on t he three accused were Sect ion 292 (sale, dist ribut ion,
public exhibit ion, et c., of an obscene object ) and Sect ion
294 (obscene act s, songs, et c., in a public place) of t he
Indian Penal Code (IPC), and Sect ion 67 (publishing
inf ormat ion w hich is obscene in elect ronic f orm) of t he
Inf ormat ion Technology Act , 2000. In addit ion, t he
schoolboy f aced a charge under Sect ion 201 of t he IPC
(dest ruct ion of evidence), f or t here is apprehension that
he had dest royed t he mobile phone t hat he used in t he
episode. These off ences invit e a st iff penalt y, namely,
imprisonment ranging from tw o to five years, in t he case
of a f irst t ime convict ion, and/or f ines.
Held : In t his case t he Service provider Avnish Bajaj w as
lat er acquit t ed and t he Delhi school boy w as grant ed
bail by Juvenile Just ice Board and w as t aken int o police
charge and det ained int o Observat ion Home f or t w o
days.
3. Daskhina Kannada police solved the first case of cyber
crime in the district
Dakshina Kannada Police solved a case w here a Fat her
at a Christ ian inst it ut ion in t he cit y had approached t he
Superint endent of Police w it h a complaint t hat he w as
get t ing of f ensive and obscene e-mails.
Police said that all t he t hree admit ted that t hey had done
t his t o t arnish t he image of t he Fat her. As t he t hree
t endered an uncondit ional apology t o t he Fat her and
gave a w rit t en undert aking t hat t hey w ould not repeat
su ch act in f u t u re, t h e co mp lain an t w it h d rew h is
complaint. Following this, the police dropped t he charges
against t he culprit .
The release said t hat sending of of f ensive and obscene
e-mails is an of f ence under t he Indian Inf ormat ion
Technology Act 2000.
58 Cy b er Cr i m e - Law an d Pr act i ce

Sect i on 67-A Punishment for publishing or transmitting of


material containing sexually explicit act, etc. in electronic
form:
Whoever publishes or transmits or causes to be published
or transmitted in the electronic form any material w hich
contains sexually explicit act or conduct shall be punished
on first conviction w ith imprisonment of either description
for a term w hich may extend to five years and w ith fine
w hich may extend to ten lakh rupees and in the event of
second or subsequent convict ion w it h imprisonment of
either description for a term w hich may extend to seven
years and also with fine which may extend to ten lakh rupees.
Exception: This section and section 67 does not extend to
any book, pamphlet, paper, w riting, draw ing, painting,
representation or figure in electronic form-
• the publication of w hich is proved to be justified as being
for the public good on the ground t hat such book,
p am p h l et , p ap er, w r i t i n g , d r aw i n g , p ai n t i n g ,
representation or figure is in the interest of science,
literature, art, or learning or other objects of general
concern; or
• w hich is kept or used bona fide for religious purposes.
It d eals w it h p u b l ish i n g o r t r an sm it t i n g o f mat eri al
cont aining sexually explicit act in elect ronic f orm. Cont ent s
of Section 67 w hen combined w it h t he mat erial cont aining
sexually explicit mat erial at t ract penalt y under t his Sect ion.
Sect i o n 67B : Punishment for publishing or transmitting
of material depicting children in sexually explicit act, etc. in
electronic form:
Whoever,-
(a) Publishes or t ransmit s or causes to be published or
transmitted material in any electronic form which depicts
children engaged in sexually explicit act or conduct or
(b) Creates text or digital images, collects, seeks, brow ses,
d o w n l o ad s, ad ver t i ses, p r o m o t es, exch an g es o r
Cy b er Cr i m e - Law an d Pr act i ce 59

dist ributes mat erial in any elect ronic form depicting


children in obscene or indecent or sexually explicit
manner or
(c) Cu l t i vat es, en t i ces o r in d u ces ch i l d r en t o o n l in e
relat ionship w it h one or more children f or and on
sexually explicit act or in a manner that may offend a
reasonable adult on the computer resource or
(d) Facilitates abusing children online or
(e) Records in any electronic form ow n abuse or that of
others pertaining to sexually explicit act w ith children,
shall be punished on first conviction w ith imprisonment
of either description for a term w hich may extend to five
years and w it h a fine w hich may extend to ten lakh
rup ees an d in t h e even t o f seco n d o r sub seq u en t
conviction w ith imprisonment of either description for a
term w hich may extend to seven years and also with fine
w hich may extend to ten lakh rupees:
Provided that the provisions of section 67, section 67A and
this section does not extend to any book, pamphlet, paper,
w rit ing, draw ing, paint ing, represent ation or figure in
electronic form-
(i) The publication of which is proved to be justified as being
for the public good on the ground t hat such book,
p am p h l et , p ap er w r i t i n g , d r aw i n g , p ai n t i n g ,
representation or figure is in the interest of science,
literature, art or learning or other objects of general
concern; or
(ii) w hich is kept or used for bonafide heritage or religious
purposes
Explanation: For the purposes of this section, " children"
means a person w ho has not completed the age of 18 years.
Ch i l d Po r n o g r ap h y has been exclusively dealt w it h under
Sect ion 67B. Depict ing children engaged in sexually explicit
act , creat in g t ext o r d igit al imag es o r ad vert isin g o r
promot ing such mat erial depict ing children in obscene or
indecent manner etc or f acilit at ing abusing children online
60 Cy b er Cr i m e - Law an d Pr act i ce

or inducing children t o online relationship w ith one or more


children et c come under t his Sect ion.
‘Children’means persons w ho have not complet ed 18 years
of age, f or t he purpose of t his Sect ion. Punishment f or t he
f irst convict ion is imprisonment for a maximum of f ive years
and f ine of t en lakh rupees and in t he event of subsequent
convict ion w it h imprisonment of seven years and f ine of ten
lakh rupees.
Bonaf ide herit age mat erial being print ed or dist ribut ed f or
t he purpose of educat ion or lit erat ure et c. are specif ically
excluded f rom t he coverage of t his Sect ion, t o ensure t hat
print in g and dist rib ut ion of ancient epics or h erit age
mat erial or pure academic books on educat ion and medicine
are not unduly af f ect ed.
Screening video graphs and photographs of illegal act ivit ies
t hrough Int ernet all come under t his cat egory, making
pornographic video or M M S clippings or dist ribut ing such
clippings through mobile or ot her f orms of communicat ion
t hrough t he Int ernet f all under t his cat egory.
Sect i o n 67C f ixes t he responsibilit y t o int ermediaries t hat
t hey shall preserve and ret ain such inf ormat ion as may be
specified f or such durat ion and in such manner as t he Central
Government may prescribe. Non-compliance is an of f ence
w it h imprisonment up t o t hree years or f ine.
` Case Law s
Janhit M anch & Ors. vs. The Union of India23
In t his case it w as Public Int erest Lit igat ion t o ban child
p o rno g rap h y. Th e p et it io n sou g h t a blan k et ban o n
pornographic websites. The NGO had argued t hat w ebsit es
displaying sexually explicit content had an adverse influence,
leading yout h on a delinquent pat h.
Tr a n sm i ssi o n o f e l e ct r o n i c m e ssa g e and
co m m u n i cat i o n :
Section 69: Pow ers to issue directions for interception or
Cy b er Cr i m e - Law an d Pr act i ce 61

monitoring or decryption of any information through any


computer resource:
(1) Where the central Government or a State Government
or any of its officer specially authorized by the Central
Government or the State Government, as the case may
be, in this behalf may, if is satisfied that it is necessary or
expedient to do in the interest of the sovereignty or
integrity of India, defense of India, security of the State,
friendly relations w ith foreign States or public order or
for prevent ing incit ement t o t he commission of any
cognizable offence relating to above or for investigation
of any offence, it may, subject to the provisions of sub-
section (2), for reasons to be recorded in w riting, by
order, direct any agency of the appropriate Government
t o in t er cep t , m o n i t o r o r d ecr yp t o r cau se t o b e
intercepted or monitored or decrypted any information
transmitted received or stored through any computer
resource.
(2) The Procedure and safeguards subject to w hich such
interception or monitoring or decryption may be carried
out, shall be such as may be prescribed.
(3) The subscriber or intermediary or any person in charge
of the computer resource shall, w hen called upon by any
agency w hich has been directed under sub section (1),
extend all facilities and technical assistance to –
(a) provide access to or secure access to the computer
resource generating, transmitting, receiving or storing
such information; or
(b) intercept or monitor or decrypt the information, as
the case may be; or
(c) provide information stored in computer resource.
(4) The subscriber or intermediary or any person w ho fails
to assist the agency referred to in sub-section (3) shall be
punished w ith an imprisonment for a term w hich may
extend to seven years and shall also be liable to fine.
[Section 69B] Pow er to authorize to monitor and collect
62 Cy b er Cr i m e - Law an d Pr act i ce

traffic data or information through any computer resource


for Cyber Security:
(1) The Central Government may, to enhance Cyber Security
and for identification, analysis and prevention of any
intrusion or spread of computer contaminant in t he
country, by notification in the official Gazette, authorize
any agency of the Government to monitor and collect
t raf f ic dat a or inf ormat io n generat ed, t ransmit t ed,
received or stored in any computer resource.
(2) Th e In t erm ed iary o r an y p erso n in -ch arg e o f t h e
Computer resource shall when called upon by the agency
which has been authorized under sub-section (1), provide
t echnical assist ance and ext end all f acilities t o such
agency to enable online access or to secure and provide
online access t o t he comput er resource generat ing,
transmitting, receiving or storing such traffic data or
information.
(3) The procedure and saf egu ards f or monit o ring and
collecting traffic data or information, shall be such as may
be prescribed.
(4) Any in t ermediary w ho in t en t io n ally o r kn o w in gly
contravenes the provisions of subsection
(2) shall be punished w ith an imprisonment for a term w hich
may extend to three years and shall also be liable to fine.
Explanation: For the purposes of this section,
(i) " Co mp u t er Co n t amin an t " sh all h ave t he mean in g
assigned to it in section 43
(ii) “traffic data" means any data identifying or purporting
to identify any person, computer system or computer
network or location to or from which the communication
is or may be transmitted and includes communications
origin, destination, route, time, date, size, duration or
type of underlying service or any other information.
Critique: Though w e recognize how import ant it is f or a
government t o prot ect it s cit izens against cyber-t errorism,
w e are concerned at t he f rict ion bet w een t hese provisions
Cy b er Cr i m e - Law an d Pr act i ce 63

and t he guarant ees of f ree dialog, debat e, and f ree speech


that are Fundamental Right s under the Constitution of India.
Specifically:
(a) Th er e is n o clear p r o visio n o f a lin k b et w een an
int ermediary and t he inf ormat ion or resource t hat is t o
be monit ored.
(b) The penalt ies laid out in t he clause are believed t o be
t oo harsh, and w hen read in conjunct ion w it h provision
66, t here is no dist inct ion bet w een minor of f enses and
serious of f enses.
(c) The ITA is t oo broad in it s cat egorizat ion of act s of cyber
t errorism by including information that is likely t o cause:
injury t o decency, injury t o moralit y, injury in relat ion t o
cont empt of court , and injury in relat ion t o def amat ion.
This is an int erest ing sect ion in t he sense t hat it empow ers
t he Government or agencies as st ipulat ed in t he Sect ion, t o
int ercept , monit or or decrypt any inf ormat ion generat ed,
t ransmit t ed, received or st ored in any comput er resource,
subject t o compliance of procedure as laid dow n here.
This pow er can be exercised if t he Cent ral Government or
t he St at e Government , as t he case may be, is sat isfied t hat it
is necessary or expedient in t he int erest of sovereignt y or
int egrit y of India, def ence of India, securit y of t he St at e,
f riendly relat ions w it h f oreign St at es or public order or f or
prevent ing incit ement t o t he commission of any cognizable
off ence relat ing t o above or for invest igation of any offence.
In any such case t oo, t he necessary procedure as may be
prescribed, is to be follow ed and the reasons for taking such
act ion are to be recorded in w rit ing, by order, direct ing any
agency of t he appropriat e Government . The subscriber or
intermediary shall extend all facilities and technical assistance
w hen called upon t o do so.
Cases
Posting Insulting Images of Chhatrapati Shivaji:
In Aug ust 2007, Laksh mana Kailash K., a t echie f rom
64 Cy b er Cr i m e - Law an d Pr act i ce

Bangalore w as arrest ed on t he suspicion of having post ed


insult ing images of Chhat rapat i Shivaji, a major hist orical
figure in the state of Maharasht ra, on the social-netw orking
sit e Orkut . The police ident if ied him based on IP address
det ails obt ained f rom Google and Airt el -Lakshmana’s ISP.
He w as brought t o Pune and det ained f or 50 days bef ore it
w as discovered t hat t he IP address provided by Airt el w as
erroneous. The mist ake w as evident ly due t o t he f act t hat
while requesting informat ion from Airt el, the police had not
properly specif ied w het her t he suspect had post ed t he
cont ent at 1:15 p.m.
Verdict : Taking cognizance of his plight f rom new spaper
account s, t he State Human Right s Commission subsequently
ordered t he company t o pay Rs 2 lakh t o Lakshmana as
d amages. The in cid ent hig h lig ht s h o w min o r p rivacy
violat ions by ISPs and intermediaries could have impact s that
gravely undermine ot her basic human right s.
Sect i o n 69A : Pow er to issue directions for blocking for
public access of any information through any computer
resource
(1) Where the Central Government or any of it s officer
specially authorized by it in this behalf is satisfied that it
is necessary or expedient so to do in the interest of
sovereignt y and integrity of India, defense of India,
security of the State, friendly relations with foreign states
or public order or f or preventing incit ement to the
commission of any cognizable offence relating to above,
it may subject to the provisions of sub-sections (2) for
reasons to be recorded in w riting, by order direct any
agency of the Government or intermediary to block
access by the public or cause to be blocked for access by
public any information generated, transmitted, received,
stored or hosted in any computer resource.
(2) The procedure and safeguards subject to w hich such
blocking for access by the public may be carried out shall
be such as may be prescribed.
(3) The intermediary w ho f ails t o comply w it h t he direct ion
Cy b er Cr i m e - Law an d Pr act i ce 65

issued under sub-sect ion (1) shall be punished w it h an


imprisonment for a term which may extend to seven years
and also be liable t o f ine.
The sect ion as insert ed in t he ITAA, vest s w it h t he Cent ral
Government or any of it s of f icers w it h t he pow ers t o issue
direct ions f or blocking f or public access of any inf ormat ion
t h r o u g h an y co m p u t er r eso u r ce, u n d er t h e sam e
circumst ances as ment ioned above.
Sect i o n 69B discusses t he pow er t o aut horise t o monit or
an d co llect t r af f ic d at a o r in f o rmat i o n t h ro u g h an y
comput er resource.
Co m m en t ar y o n t h e p o w er s t o i n t er cep t , m o n i t o r
an d b l o ck w eb si t es
In short , under t he condit ions laid dow n in t he Sect ion,
pow er t o int ercept , monit or or decrypt does exist . It w ould
be int erest ing t o t race t he hist ory of t elephone t apping in
India and t he legislat ive provisions (or t he lack of it ) in our
nat ion and compare it w it h t he pow ers ment ioned here.
Unt il t he passage of t his Section in t he ITAA, phone t apping
w as governed by Clause 5(2) of t he Indian Telegraph Act of
1885, w hich said t hat “On t he occurrence of any public
emergency, or in t he int erest of t he public saf et y, t he
Government may, if satisf ied t hat it is necessary or expedient
so t o do in t he int erest s of t he sovereignt y and int egrit y of
India, the security of the St ate, friendly relations with foreign
St at es or public order or f or prevent ing incit ement t o t he
commission of an of f ence, f or reasons t o be recorded in
writing, by order, direct that any message or class of messages
t o or f rom any person or class of persons, or relat ing t o any
p ar t i cu l ar su b j ect , b r o u g h t f o r t r an sm i ssi o n b y o r
t ransmit t ed or received by any t elegraph, shall not be
t ransmitt ed, or shall be int ercept ed or det ained, or shall be
disclosed t o t he Government making the order or an of f icer
t hereof ment ioned in t he order”. Ot her sect ions of t he act
m en t i o n t h at t h e g o ver n m en t sh o u l d f o r m u l at e
“precaut ions t o be t aken f or prevent ing t he improper
int ercept ion or disclosure of messages”. There have been
many at t empt s, rat her many request s, t o f ormulat e rules t o
66 Cy b er Cr i m e - Law an d Pr act i ce

govern t he operat ion of Clause 5(2). But ever since 1885, no


government has f ormulat ed any such precaut ions, maybe
f or obvious reasons t o ret ain t he spying pow ers f or almost
a cent ury.
A w rit pet it ion w as f iled in t he Supreme Court in 1991 by
t he People’s Union f or Civil Libert ies, challenging t he
constitutional validity of this Clause 5(2). The petition argued
t hat it inf ringed t he const it ut ional right t o f reedom of
speech and expression and t o lif e and personal libert y.
In Decemb er 1996, t h e Su p rem e Co u r t d elivered i t s
judgment , point ing out t hat “unless a public emergency has
occurred or t he int erest of public saf et y demands, t he
authorities have no jurisdiction to exercise the powers” given
t o t hem under Clause 5(2). They w ent on t o def ine t hem
t hus: a public emergency w as t he “prevailing of a sudden
condit ion or st at e of af f airs af f ect ing t he people at large
calling f or immediat e act ion”, and public saf et y “means the
st at e or condit ion of f reedom f rom danger or risk f or t he
people at large”. Wit hout t hose t w o, how ever “necessary
or expedient ”, it could not do so. Procedures f or keeping
such records and t he layer of aut horit ies et c w ere also
stipulat ed.
Now, t his Sect i o n 69 o f ITA A i s f ar m o re i n t r u si v e and
more pow erf ul t han t he above-cit ed provision of Indian
Telegraph Act 1885. Under this ITAA Sect ion, t he nominat ed
Government off icial will be able to listen in to all phone calls,
read t he SM Ss and emails, and monit or t he w ebsit es t hat
o n e visit ed , su b ject t o ad h eren ce t o t h e p rescr ib ed
procedures and w ithout a w arrant from a magistrate’s order.
In view of t he f oregoing, t his Sect ion w as crit icised t o be
draconian vest ing t he government w ith much more pow ers
t han required.
Having said t his, w e should not be oblivious t o t he f act t hat
t his pow er (of int ercept ing, monit oring and blocking) is
somet hing w hich t he Government represent ed by t he
In d i an Co m p u t er Em er g en cy Resp o n se Team , (t he
National Nodal Agency, as nominated in Section 70B of ITAA)
has very rarely exercised. Perhaps believing in t he f reedom
Cy b er Cr i m e - Law an d Pr act i ce 67

of expression and having conf idence in t he self -regulat ive


nat ure of t he indust ry, t he CERT-In has st at ed t hat t hese
pow ers are very sparingly (and almost never) used by it .
Crit ical Inf ormat ion Inf rast ruct ure and Prot ect ed Syst em
have been discussed in Sect ion 70.
The Indian Comput er Emergency Response Team (CERT-In)
coming under t he M inist ry of
Inf ormation and Technology, Government of India, has been
designat ed as t he Nat ional Nodal Agency f or incident
response. By virtue of this, CERT-In will perform act ivities like
collect ion, analysis and disseminat ion of inf ormat ion on
cyb er incid en t s, f o recast s and alert s of cyb er securit y
incident s, emergency measures f or handling cyber securit y
incident s et c.
The role of CERT-In in e-publishing securit y vulnerabilit ies
and securit y alert s is remarkable.
The t hen M inist er of St at e f or Communicat ions and IT
M r.Sachin Pilot said in a w rit t en reply t o t he Rajya Sabha
said t hat (as report ed in the Press), CERT-In has handled over
13,000 such incident s in 2011 compared t o 8,266 incident s
in 2009. CERT-In has observed t hat t here is signif icant
increase in t he number of cyber securit y incident s in t he
country. A t otal of 8,266, 10,315 and 13,301 security incidents
were reported to and handled by CERT-In during 2009, 2010
and 2011, respect ively,"
These security incident s include websit e intrusions, phishing,
netw ork probing, spread of malicious code like virus, w orms
and spam, he added. Hence t he role of CERT-In is very crucial
and t here are much expect at ions f rom CERT In not just in
giving out t he alert s but in combat ing cyber crime, use t he
w eapon of monit oring t he w eb-t raf f ic, int ercept ing and
blocking the site, whenever so required and w ith due process
of law.
Penalty for breach of conf ident ialit y and privacy is discussed
in Sect ion 72 w it h t he punishment being imprisonment f or
a t erm upt o t w o years or a f ine of one lakh rupees or bot h.
68 Cy b er Cr i m e - Law an d Pr act i ce

Sect i o n 71: Penalty for misrepresentation


Whoever makes any misrepresentation to, or suppresses any
material fact from, the Controller or the Certifying Authority
for obtaining any license or Digital Signature Certificate, as
the case may be, shall be punished w ith imprisonment for a
term w hich may extend to tw o years, or w hich fine w hich
may extend to one lakh rupees, or w ith both.
Pen al t i es:
Punishment : imprisonment which may extend to tw o years
Fine : may extend to one lakh rupees or w ith both.
Sect ion 72 : Penalty for breach of confidentiality and privacy
Save as otherw ise provide in this Act or any other law for
the time being in force, any person w ho, in pursuance of
an y of t he p ow ers co nf erred un der t h is Act , ru les or
regulation made there under, has secured access to any
el ect r o n i c r eco r d , b o o k , r eg i st er, co r r esp o n d en ce,
inf ormat ion, document or o t her mat erial w it hou t t he
consent of the person concerned discloses such material to
any other person shall be punished w ith imprisonment for
a term w hich may extend to tw o years, or w ith fine w hich
may extend to one lakh rupees, or w ith both.
Explanation: This section relates to any to any person w ho
in pursuance of any of the powers conferred by the Act or it
allied rules and regulat ions has secured access t o any:
El ect r o n i c r eco r d , b o o k s, r eg i st er, co r r esp o n d en ce,
information, document, or other material.
If such person discloses such information, he will be punished
w ith punished. It w ould not apply to disclosure of personal
information of a person by a w ebsite, by his email service
provider.
Pen al t i es :
Punishment : term w hich may extend to tw o years.
Fine: one lakh rupees or w ith both.
Cy b er Cr i m e - Law an d Pr act i ce 69

Sect i o n 72A : Punishment for Disclosure of information in


breach of law ful contract
Any person including an intermediary w ho, while providing
services under the terms of lawful contract, has secured access
to any material containing personal informat ion about
another person, w ith the intent to cause or know ing that
he is likely to cause wrongful loss or wrongful gain discloses,
w ithout the consent of the person concerned, or in breach
of a law ful contract, such material to any other person shall
be punished w it h imprisonment for a term w hich may
extend to three years, or w ith a fine w hich may extend to
five lakh rupees, or w ith both.
Sect i o n 73 : Penalty for publishing electronic Signature
Certificate false in certain particulars:
No person shall publish an Electronic Signature Certificate
or otherw ise make it available to any other person w ith the
know ledge that
• the Certifying Authority listed in the certificate has not
issued it; or
• the subscriber listed in the certificate has not accepted
it; or
• the certificate has been revoked or suspended, unless
such publication is for the purpose of verifying a digital
signature created prior to such suspension or revocation
Any person w ho contravenes the provisions of sub-section
(1) shall be punished w ith imprisonment for a term w hich
may extend to tw o years, or w ith fine w hich may extend to
one lakh rupees, or w ith both.
Explanation : The Certifying Authority listed in the certificate
has not issued it or,
The subscriber listed in the certificate has not accepted it or
the certificate has been revoked or suspended.
The Cert if ying aut horit y may also suspend t h e Digit al
Signature Certificate if it is of the opinion that the digital
signature certificate should be suspended in public interest.
70 Cy b er Cr i m e - Law an d Pr act i ce

A digital signature may not be revoked unless the subscriber


has been given opportunity of being heard in the matter.
On revocation the Certifying Authority need to communicate
the same w ith the subscriber. Such publication is not an
offence it is the purpose of verifying a digital signature
created prior to such suspension or revocation.
Pen al t i es:
Punishment: imprisonment of a term of w hich may extend
to tw o years.
Fine: fine may extend to 1 lakh rupees or w ith both
Case Law s
Bennett Coleman & Co. v/s Union of India24
In this case the publication has been stated that ?publication
means dissemination and circulation. In the context of digital
medium, the term publication includes and transmission of
information or data in electronic form.
Sect i o n 74 – Publication for fraudulent purpose:
Whoever know ingly creates, publishes or otherw ise makes
avai l ab l e a El ect r o n i c Si g n at u r e Cert i f icat e f o r an y
fraudulent or unlaw f ul purpose shall be punished w ith
imprisonment for a term w hich may extend to tw o years, or
with fine which may extend to one lakh rupees, or with both.
Sect i o n 75 – Act to apply for offence or contraventions
committed outside India
Subject to the provisions of sub-section (2), the provisions
of this Act shall apply also to any offence or contravention
committed outside India by any person irrespective of his
nationality.
For the purposes of sub-section (1), this Act shall apply to an
offence or contravention committed outside India by any
person if the act or conduct constituting the offence or
contravention involves a computer, computer syst em or
computer netw ork located in India.
Cy b er Cr i m e - Law an d Pr act i ce 71

4.2 Co m m o n Cy b e r Cr i m e s a n d A p p l i ca b l e Le g a l
Pr o v i si o n s : A Sn ap sh o t

S.No. Cyber Crime Applicable Provisions

1. Harassment via fake public profile Sections 66A, 67 of IT


on social netw orking site :A f ake Act and Sect ion 509 of
prof ile of a person is creat ed on t he Indian Penal Code.
a social net w orking sit e w it h t he
co r r ect ad d r ess, r esi d en t i al
information or contact details but
he/she is labeled as ‘prost it ut e’or
a person of ‘loose charact er’. This
leads t o harassment of t he vict im
2. Online Hate Community : Online Sect ion 66A of IT Act
hat e communit y is creat ed and 153A & 153B of the
incit ing a religious group t o act Indian Penal Code.
o rp ass o b ject io n ab le remark s
ag ai n st a co u n t r y, n at i o n al
f igures et c.
3. Email Account Hacking : If vict im’s Sect ions 43, 66, 66A,
email account is hacked and 66C, 67, 67A and 67B of
obscene emails are sent to people Inf ormat ion
in vict im’s address book Technology Act .
4. Credit Card Fraud : Unsuspect ing Sect ions 43, 66, 66C,
vict ims w ould use inf ect ed 66D of IT Act and
comput ers t o make online t ran- sect ion 420 of t he
sactions. Indian Penal Code.
5. Web Defacement : The homepage Sections 43 and 66 of IT
of a w ebsit e is replaced w it h a Act and Sect ions 66F, 67
pornographic or def amat ory and 70 of IT Act also
page. Government sit es generally apply in some cases.
f ace t he w rat h of hackers on
symbolic days
6. Introducing Viruses, Worms, Sect ions 43, 66, 66A of
Backdoors, Rootkits, Trojans, Bugs : IT Act and Sect ion 426
All of t he above are some sort of of Indian Penal Code.
72 Cy b er Cr i m e - Law an d Pr act i ce

S.No. Cyber Crime Applicable Provisions


malicio us programs w h ich are
used t o dest roy or gain access t o
some elect ronic inf ormat ion
7. Cyber Terrorism : M any t errorist s Conventional terrorism
are use virt ual (G-Drive, FTP sites) law s may apply along
and physical stoarage media (USB’s) w it h Sect ion 69 of IT
hard drives) for hiding information Act .
and recordsof their illicit business.
8. Online sale of illegal Articles : Generally convent ional
Where sale of narcot ics, drugs law s apply in t hese
w eapons and w ildlif e is f acilit a- cases.
t ed by t he Int ernet
9. Cyber P ornography : Among the Sect ions 67, 67A and
largest businesses on Int ernet . 67B of t he IT Act .
Pornography may not be illegal
i n m an y co u n t ri es, b u t ch il d
p o rno g rap h y is p ro h ib it ed at
large.
10. Phishing and Email Scams : Sect ion 66, 66A and
Phishing involves f raudulent ly 66D of IT Act and
acquiring sensit ive inf ormat ion Sect ion 420 of IPC
t hrough masquerading a sit e as
a t rust ed ent it y. (E.g. Passw ords,
credit card inf ormat ion)
11. Theft of Confidential Information : Sect ions 43, 66, 66B of
M any business organizat ions IT Act and Sect ion 426
st ore t heir confident ial inf orma- of Indian Penal Code.
t ion in comput er syst ems. This
inf ormat ion is t arget ed by rivals,
cr i m i n al s an d d i sg r u n t l ed
employees.
12. Source Code Theft : A Source code Sect ions 43, 66, 66B of
generally is the most coveted and IT Act and Sect ion 63 of
import ant “crown jew el” asset of Copyright Act .
a company.
Cy b er Cr i m e - Law an d Pr act i ce 73

S.No. Cyber Crime Applicable Provisions


13. Tax Evasion and M oney Income Tax Act and
Laundering : M oney launderers Prevent ion of M oney
and people doing illegal business Laundering Act . IT Act
activities hide their information in may apply case-wise.
virtual as well asphysical activities.
14. Online Share Trading Fraud : It has Sect ions 43, 66, 66C,
become mandat ory f or invest ors 66D of IT Act and
t o have t heir demat account s Sect ion 420 of Indian
linked w it h t heir online banking Penal Code.
acco un t s w h ich are g en erally
accessed unaut horized, t hereby
leading t o share t rading f rauds.

4.3 Ci v i l Li ab i l i t i es u n d er In f o r m at i o n Tech n o l o g y A ct ,
2000
The concept of accrued liabilit y applies only t o subst ant ive
laws and not to procedural laws as no one can claim a vest ed
right in t he procedure. In India w e have bot h subst ant ive
and procedural law s. The Indian Penal Code and Information
Technology Act are subst ant ive law s w hereas t he Indian
Evidence Act , Criminal Procedure Code and Civil procedure
Code are procedural law s. Thus, by a ret rospect ive law t he
procedure can be amended, changed or even repealed.
Similarly, t he prot ect ion of Art icle 20(1) is available f or and
can be seeked against criminal mat t ers only and it does not
extend t o civil matt ers‘. Thus, a civil liabilit y can be enhanced
w it h ret rospect ive eff ect .
Dat a Pr o t ect i o n
According to the Sect ion: 43-w hoever destroys, delet es,
alters and disrupts or causes disruption of any computer w ith
t h e int en t io n of damagin g of t h e w ho le dat a of t he
computer system w ithout the permission of the ow ner of
the computer, shall be liable to pay fine up to 1crore to the
person so affected by w ay of remedy.
Sect i o n 43A w hich is inserted by ‘Information Technology
(Amendment) Act, 2008 states that w here a body corporate
74 Cy b er Cr i m e - Law an d Pr act i ce

is maintaining and protecting the data of the persons as


provided by the central government, if there is any negligent
act or failure in protecting the data/ information then a body
corporate shall be liable to pay compensation to person so
affected. And Section 66 deals w ith ‘hacking with computer
system’and provides for imprisonment up to 3 years or fine,
w hich may extend up to 2 years or both.
Sect ion 43A of IT Act deals w ith t he aspect of compensat ion
f or f ailure t o protect dat a. The Cent ral Government has not
prescribed t he t erm 'sensit ive personal dat a,' nor has it
prescribed a standard and reasonable security practice. Unt il
t hese prescript ions are made, dat a is af f orded securit y and
prot ect ion only as may be sp ecif ied in an agreement
bet w een t he part ies or as may be specif ied in any law.
How ever, Explanat ion (ii) t o Sect ion 43A is worded in such a
w ay t hat t here is lack of clarit y w hether it would be possible
f or banks, (or anybody corporat e) t o ent er int o agreement
w hich st ipulat e st andards lesser t han t hose prescribed by
Cent ral Government and in t he event of t he cont radict ion
(b et w een t h e st an d ar d s p r escr i b ed b y t h e Cen t r al
Government and t hose in t he agreement ) w hich w ould
prevail. Whet her a negligence or mala f ide on t he part of
t he customer w ould make t he f inancial inst itut ion liable for
no f ault of it or w het her by af f ording t oo much prot ect ion
t o banks, a cust omer is made t o suf f er are t he t w o ext remes
of t he sit uat ion. The need is f or st riking a balance bet w een
consumer prot ect ion and prot ect ion of t he banks f rom
liabilit y due t o no f ault of t heirs. Apart f rom af f ording
prot ect ion t o personal dat a (sensit ive personal dat a- 43A),
t he IT Act , 2000 also prescribes civil and criminal liabilit ies
(Sect ion 43 and Sect ion 66 respect ively) t o any person w ho
w it hout t he permission of t he ow ner or any ot her person
w ho is in charge of a comput er, comput er syst em et c., int er
alia, dow nloads, copies or ext ract s any dat a or damages or
causes t o be damaged any comput er dat a base et c. In t his
cont ext Sect ion 72 and 72A of t he amended IT Act , 2000
are also of relevance. Sect ion 72 of t he Act prescribes t he
punishment if any person w ho, in pursuance of t he pow ers
conf erred under t he IT Act , 2000, has secured access t o any
Cy b er Cr i m e - Law an d Pr act i ce 75

electronic record, inf ormation etc. and without the consent


of t he person concerned discloses such inf ormation t o any
ot her person t hen he shall be punished w it h imprisonment
up t o tw o years or w it h fine up to one lakh or w it h both.
Sect ion 72A on t he other hand provides t he punishment for
disclosure by any person, including an intermediary, in breach
of law ful cont ract . The purview of Section 72A is wider than
sect ion 72 and extends t o disclosure of personal information
of a person (without consent ) while providing services under
a lawf ul contract and not merely disclosure of inf ormation
obtained by virt ue of powers grant ed under IT Act, 2000.
Cr i t i cal A n al y si s: Co m p ar at i v e Ju r i sd i ct i o n
How ever, t he at t empt is such a limit ed one, and so replet e
w i t h sh o r t co m in g s t h at t h e n eed f o r a p r o p er d at a
prot ect ion law st ill st ands. Given t he proposed init iat ion of
t he UID scheme, in particular, t here is a compelling need for
a robust and int elligent law in t his regard. M ost ot her
count ries regimes clearly do at least t he f ollow ing:
• Def ine and classif y t ypes of dat a (f or example, in most
European count ries, personal dat a is any dat a t hat
ident if ies an individual, sensit ive personal dat a is dat a
that reveals details of ethnicit y, religion, health, sexuality,
polit ical opinion, etc.),
• Fine-t une t he nat ure of prot ect ion t o t he cat egories of
dat a (i.e., great er st andards of care around sensit ive
personal dat a),
• Apply equally t o dat a st ored of f line and manually as t o
dat a st ored on comput er syst ems,
• Distinguish between a data controller (i.e., one who takes
decisions as t o dat a) and a dat a processor (i.e., one w ho
processes dat a on the instruct ions of t he data controller),
• Impose clear restrictions on the manner of data collect ion
(f or example, must be obt ained f airly and law f ully),
• Give clear guidelines on the purposes for which that data
can be put t o and by w hom (of t en involving a consent
requirement t hat gives t he individual a great degree of
cont rol over t heir dat a),
76 Cy b er Cr i m e - Law an d Pr act i ce

• Require cert ain standards and technical measures around


t he collect ion, st orage, access t o, prot ect ion, ret ent ion
and dest ruct ion of dat a,
• Ensure t hat t he use of dat a is adequat e, relevant and
not excessive given the purpose for which it was gathered,
• Cat er f or opt -in and opt -out t ype regimes, again t o
provide individuals w it h a measure of cont rol over t he
use of t heir data even aft er the stage of init ial collection
(w hich has a huge impact on invasive t elemarket ing or
unsolicit ed w rit ten communicat ion),
• Impose a know ledge requirement and procedures f or
allow ing individuals t o seek inf ormat ion on w hat data is
held on t hem, and
• Creat e saf eguards and penalt ies t hat are w ell t ailored
t o breaches of any of t he above.
Unf ortunat ely, and perhaps underst andably, t he ITA barely
begins to scrat ch the surface of what a good dat a protection
regime entails. The provisions t hat it does introduce (sections
43-A and 72-A) have glaring inadequacies w hich are as
follows:
• The t erm sensit ive personal dat a or inf ormat ion is used
indiscriminat ely wit hout any def init ion,
• The provisions only cover elect ronic dat a and records,
not dat a st ored in non-elect ronic syst ems or media,
• They of f er no guidance on most of t he principles set out
above such as in relation t o accuracy, adequacy, consent ,
purpose, etc.,
• In t he absence of t he cont roller-processor dist inct ion,
liabilit y is imposed on persons, w ho are not necessarily
in a position to control data, even if it is in their possession,
• Civil liab ilit y f o r d at a b reach es o n ly arises w h ere
negligence is involved (i.e., f ailure t o have securit y
procedures or f ailure t o implement t hem correct ly w ill
not aut omat ically result in damages unless negligence is
proven),
Cy b er Cr i m e - Law an d Pr act i ce 77

• Similarly, crimin al liabilit y o nly ap plies t o cases o f


informat ion obt ained in the context of a service cont ract,
and requires an element of w illf ulness, or a disclosure
w it hout consent or in breach of a law ful cont ract – t his is
a very lim it ed remit aim ed l arg ely at p reven t i n g
disgrunt led or unscrupulous employees f rom dealing in
company/cust omer dat a.
In addit ion t o t he crit icisms levelled at t he dat a prot ect ion
provisions, t he ot her large subset of concerns has been in
relat ion t o t he civil libert ies implicat ions of t he ITA. There
has been some horror expressed in various f orums and media
about t he ITA cont ribut ing t o t he grow t h of a police st at e,
t o severe cu rt ailment o f t h e f reed o m o f sp eech an d
exp r essi o n , t o t h e i n vasi o n o f p r i vacy, an d t o t h e
disproport ionat e severit y of penalizat ion f or of f ences t hat
are placed on crimes commit ted in cyberspace compared t o
crimes commit t ed in t he here and now. Sadly, t his is t rue t o
a large extent given the clunky t reatment of cyber terrorism,
the intolerable pre-censorship that is enabled by the blocking
of w ebsit es, t he broad approach t o t he monit oring and
collect ion of dat a, an d t he demanding o bligat io ns of
int ermediaries t o cooperat e w it h int ercept ion, monit oring
and decrypt ion of dat a f or poorly def ined reasons.
While our Const it ut ion’s f undament al right s chapt er, w hich
enshrines cert ain basic, democrat ic, and prof ound right s,
might not have t he same vocabulary of due process as w e
see in t he US, it nevert heless requires rest rict ions t o be
reasonable. Precedent s and t he w ider jurisprudence in t he
f ield have f urt her developed t he concept s of checks and
balances, procedural safeguards and legit imacy of restraint s
t hat a f unct ioning democracy like India must accord t o it s
people. It can be argued t hat several provisions of t he ITA
cause significant t ension w ith the right to freedom of speech
and expression, the right against self-incrimination, t he right
t o equality bef ore t he law, and t he right t o practice a t rade
or profession.
Pr i v acy an d su r v ei l l an ce
This t opic pulls t oget her concerns around t he blanket
78 Cy b er Cr i m e - Law an d Pr act i ce

monitoring and collect ing of traff ic data or inf ormation, t he


i n t er cep t i o n an d d ecr yp t i o n (u n d er d u r ess) b y
int ermediaries (now a large superset of ISPs, search engines,
cyber caf es, online auct ion sit es, online market places, et c.)
and the wide definition of cyber terrorism (which ludicrously
even cast s def amat ion as a t errorist act ivit y).
Some of t he broad concerns in relat ion t o int ercept ion,
monit oring and decrypt ion in (sect ion 69) are t hat :
• There is no provision f or a clear nexus bet w een an
int ermediary and t he inf ormat ion or resource sought t o
be monit ored or int ercept ed,
• The usual internationally recognised exception t o liability
w here an int ermediary operat es purely as a conduit and
has no cont rol over dat a f low ing t hrough it s net w ork is
not clearly spelt out ,
• The penalt ies f or non-cooperat ion are ext remely harsh,
especially given t he absence of a) and b) above,
• These onerous penalt ies can be said t o be in violat ion of
Art icle 14 as they seem ent irely disproportionate. Similar
of fences and remedies in the Code of Criminal Procedure
or t he Indian Penal Code prescribe less severe penalt ies,
b y an o rd er o f magn it ud e in f act . Wh en t he o nly
dif f erence betw een the of fences is t he medium in w hich
inf ormat ion is cont ained, it seems arbit rary t o impose a
much harsher punishment on an online int ermediary
t han on a member of t he public w ho, f or example,
f urnishes f alse inf ormat ion t o t he police in connect ion
w it h a t rial or enquiry,
• The rules made in relat ion t o monit oring, int ercept ion
and decrypt ion, of f er some procedural saf eguards, in
t hat they impose a time limit on how long a direct ive for
int erception or monit oring can remain in f orce, a ceiling
on how long dat a can be kept bef ore it is required to be
dest royed, et c. How ever, t he eff ect of t hese is great ly
dilut ed by except ions f or f unct ional requirement s, et c.
Th e ast o n ishin g iro n y is t h at ru le 20 req u ires t h e
int ermediary t o maint ain ‘ext reme secrecy’, ‘utmost care
Cy b er Cr i m e - Law an d Pr act i ce 79

and precaution’in the matter of interception, monitoring


or decrypt ion of inf ormat ion as it af f ect s t he privacy of
citizens.
In a similar vein, t here are concerns around t he monit oring
and collect ion of t raf f ic dat a (Sect ion 69B) as t he sect ion
co n t ai n s an u n r easo n ab l y l o n g l i st o f g r o u n d s f o r
mo n it o rin g . Th ese in clu d e su ch ext reme excesses as
forecasting of imminent cyber incidents, monitoring network
applicat ion w it h t raf f ic dat a or inf ormat ion on comput er
reso urce, id ent if icat io n and det erminat ion o f viru ses/
comput er cont aminant , and t he cat ch-all any ot her mat t er
relat ing t o cyber securit y.
Finally, t he main crit icism of t he ITA approach t o cyber
t errorism is t he very w ide net t hat it seeks t o cast , looking
f or a game t hat has lit t le or not hing t o do w it h t he named
of f ence. Amongst t he cast of creat ures unw it t ingly caught
during this fishing expedition, we find some unlikely victims.
In ad d it io n t o t h e u su al g ro u n d s o f o f f en ce ag ain st
sovereignt y, nat ional securit y, def ence of India, et c., w hich
w e have seen in relat ion t o ot her sect ions, the ITA considers
t he f ollow ing as act s of cyber t errorism broadly speaking,
unaut horized access t o inf ormat ion t hat is likely t o cause:
• Injury t o decency,
• Injury t o moralit y,
• Injury in relat ion t o cont empt of court , and
• Injury in relat ion t o def amat ion.
This w ould almost be laughable if t hese grounds w ere not
enact ed int o law, posing a t hreat t o civil libert ies by t heir
very exist ence. Other countries have some notion of polit ical
ideology, religious case, etc. in their view of t errorism. Indian
Law on Inf ormat ion and Communicat ion Technology has
been shoehorned int o a clause t hat imposes t he st if f est
penalty w it hin t he ent ire ITA (lif e imprisonment ) gives even
more cause f or concern.
4.4 Ci v i l Li ab i l i t y f o r Co r p o r at e:
As ment ioned above, anybo dy corp orat e w ho f ails t o
80 Cy b er Cr i m e - Law an d Pr act i ce

o b serve d at a p rot ect io n no rms may b e liab le t o p ay


compensat ion if :
• It is n eg li g en t i n i mp lemen t in g an d mai n t ain i n g
reasonable securit y pract ices, and t hereby
• Causes w rongf ul loss or w rongf ul gain t o any person;
Claims f or compensation are t o be made t o the adjudicating
of f icer appoint ed under sect ion 46 of t he IT Act .
4.5 Cy b er Cr i m es u n d er IPC an d Sp eci al Law s
4.5.1 Th e In d i an Pen al Co d e, 1860
Normally ref erred t o as t he IPC, t his is a very pow erf ul
legislat ion and probably t he most w idely used in criminal
jurisprudence, serving as t he main criminal code of India.
Enacted originally in 1860 and amended many a times since,
it covers almost all substant ive aspect s of criminal law and is
supplemented by other criminal provisions. In independent
India, many special law s have been enact ed w it h criminal
and penal provisions w hich are of t en ref erred t o and relied
upon, as an addit ional legal provision in cases w hich ref er
t o t he relevant provisions of IPC as w ell.
The Indian Penal Code w as amended by insert ing the w ord
' elect ronic' t hereby t reat ing t he elect ronic records and
document s on a par w it h physical records and document s.
The Sect ions dealing w it h f alse ent ry in a record or f alse
document et c. (e.g. 192, 204, 463, 464, 464, 468 t o 470, 471,
474, 476 etc.) have since been amended as 'elect ronic record
and elect ronic document' thereby bringing wit hin the ambit
of IPC. Now, electronic record and elect ronic documents has
been treated just like physical records and document s during
commission of act s of f orgery or f alsif icat ion of physical
reco rd s in a crime. Af t er t he ab o ve amen d men t , t h e
invest igat ing agencies f ile t he cases/ charge-sheet quot ing
t he relevant sect ions f rom IPC under sect ion 463, 464, 468
and 469 read w it h t he ITA/ITAA under Sect ions 43 and 66 in
like of fences t o ensure the evidence and/or punishment can
be covered and proved under eit her of t hese or under bot h
legislation.
Cy b er Cr i m e - Law an d Pr act i ce 81

• Sending t hreat ening messages by email - Sec 503 IPC


• Sending def amat ory messages by email - Sec 499 IPC
• Forgery of elect ronic records - Sec 463 IPC
• Bogus w ebsit es, cyber f rauds - Sec 420 IPC
• Email spoof ing - Sec 463 IPC
• Web-Jacking - Sec. 383 IPC
• E-M ail Abuse - Sec.500 IPC
4.5.2 Cy b er Cr i m es u n d er t h e Sp eci al A ct s
• Online sale of Drugs - Narcot ic Drugs and Psychot ropic
Subst ances Act , 1985.
• Online sale of Arms – Arms Act , 1959.

***
82 Cy b er Cr i m e - Law an d Pr act i ce

Chapt er 5

Cy b er Cr i m e : Lan d m ar k
Ju d g em en t s i n In d i a
1. San j ay Ku m ar v s. St at e Of Har y an a 25

Punjab-Haryana High Court (Sect ion 65 and Sect ion 66 of


t he IT Act , 2000)

Presen t cri min al revisi o n h as b een p ref erred b y t h e


pet it ioner against judgment dat ed 21.08.2012 passed by
t he learned Sessions Judge, Faridabad, w hereby an appeal
p ref erred b y t h e p et it i o n er h as b een d ismi ssed an d
judgment of convict ion dat ed 01.09.2011 and order of
sent en ce d at ed 03.09.2011 passed by learned Ju dicial
Magist rate First CRR No.66 of 2013 (O&M ) 2 Class, Faridabad,
has been upheld, vide w hich t he p et it ioner has b een
convict ed f or of f ences punishable under Sect ions 420, 467,
468, 471 of the Indian Penal Code and Sections 65 and 66 of
t he Inf ormat ion & Technology Act , 2000 and sent enced t o
undergo rigorous imprisonment as f ollow s:-

Under Sect ion Period Fine 420 IPC Tw o years Rs.1,000/- 467
IPC Three years Rs.2,000/- 468 IPC Tw o years Rs.1,000/- 471
IPC Tw o years Rs.1,000/- 65 I.T. Act Tw o years Rs.1,000/- 66
I.T. Act Tw o years Rs.1000/- In def ault of payment of f ine,
t he pet it ioner shall f urt her undergo simple imprisonment
f or a period of t wo mont hs. All the sentences were ordered
t o run concurrent ly.

Br i ef f act s o f t h e p r o secu t i o n case ar e t h at t h e Sen i o r


Br an ch

M anager, Vijay Bank, NIT, Faridabad moved a complaint


d at ed 11.02.2003 b ef o re t h e Po lice st at i n g t h at t h e
pet it ion er w as d ep ut ed b y M /s Virmat i So f t w are and
82
Cy b er Cr i m e - Law an d Pr act i ce 83

Telecommunicat ion Lt d. t o maint ain t he Sof t w are Syst em


supplied by t hem to t he bank. He was also looking Sof tw are
System of certain ot her banks. In connect ion w it h rendering
such services, t he pet it ioner w as having access t o t heir
account ing syst em which w as comput erized and w as also in
a posit ion t o ent er int o ledgers and various ot her account s.
While reconciling t he account s, cert ain discrepancies w ere
pointed out by t he of ficials of t he bank and in t hat process,
it was revealed that the accused-pet it ioner, who w as having
SB Account No. 21499 in his CRR No.66 of 2013 (O&M ) 3
personal name in t heir bank, manipulat ed t he ent ries by
f orging and fabricat ing cert ain ent ries f rom one account t o
another, from the computer system by handling the sof tware
and got t he ent ries pert aining t o t he amount of t he t he
bank and w it hdrew t he amount s f rom t he bank on various
dat es by issuing cheques in his ow n f avour and w it hdrew
t he amount f rom t he cash count er of t he bank as w ell as
t hrough t ransf er/clearing t ransact ions. As per enquiry, it has
been revealed t hat t he accused by carrying out f orgery,
f abricating t he ent ries in the comput er system of t he bank,
illegally and wrongf ully, withdrew Rs.17,67,409/- from t he
bank and thus, caused wrongful gain to himself and wrongful
loss t o the bank. The said Bank came t o know regarding t he
fraud commit ted by t he accused on 07.02.2003. thereaft er,
the accused was called t o the bank and he was conf ront ed
with t he det ails of the fraud but he gave evasive replies as
only admitted having embezzled a sum of Rs. 17 lacs without
giving f urther inf ormation or revealing the exact amount of
fraud or t he modus operandi of t he same and also assured
to pay back the amount t o the bank.
Fi l i n g an d In v est i g at i o n
On receipt of the complaint , a case bearing FIR No. 165 dated
11.02.2003, under Sect ions 406, 420, 467, 468, 469, 471 of
t he Indian Penal Code and Sect ions 65, 66 and 72 of t he
Inf o rmat ion and Technology Act , 2000 w as regist ered
against t he pet it ioner. Af t er complet ion of invest igat ion,
challan against t he accused-petit ioner w as presented in the
Court . Thereaf t er, charge w as f ramed against t he accused
petit ioner to w hich he pleaded not guilt y and claimed t rial.
84 Cy b er Cr i m e - Law an d Pr act i ce

The prosecut ion, in order t o prove it s case, examined PW1


A. CRR No.66 of 2013 (O&M )

Siridhar, PW2 Girish Kumar Verma, PW3 M aheshw ar Rat h,


PW4 Ramesh Kumar M alik and PW5 Dalip Singh, DSP.
Thereaf t er, st at ement of t he accused w as recorded under
Sect ion 313 Cr.P.C. All t he incriminating circumst ances w ere
put t o t h e accused. He denied t he same an d pleaded
innocence.

The learned t rial Court , af t er appreciat ion of t he evidence,


convict ed and sent enced t he pet it ioner as af oresaid vide
judgment and order dat ed 01.09.2011 and 03.09.2011
respect ively. Thereaf ter, t he pet itioner preferred an appeal,
w h ich w as d ismissed b y t h e lear n ed Sessio n s Ju d g e,
Faridabad vide judgment dat ed 21.08.2012. Hence, t his
criminal revision.

Learned counsel f or t he pet it ioner w as heard and perused


the record. Learned counsel for the pet it ioner contends that
t he petit ioner has been f alsely implicat ed in t his case as t he
complainant and eye w it ness w as inimical t o t he pet it ioner
as t hey w ere having a disput e about 15/16 years prior t o
the occurrence. Learned counsel further contends t hat t here
is no direct evidence t o connect t he pet it ioner w it h t he
alleged of f ence in quest ion, t heref ore, no prima facie case
has been made out against t he pet it ioner

The court considered the contentions of the learned counsel


f or t he pet it ioner. From perusal of t he judgment s of bot h
t he Court s below, it t ranspires t hat t he allegat ions against
t he pet it ioner are t hat t he pet it ioner CRR No.66 of 2013
(O&M ) 5 has manipulat ed t he comput erized Bank account ,
i.e., the interest entries and thereby cheated the complainant
bank by f orging electronic record in order t o cause wrongf ul
loss t o t he bank and w rongf ul gain t o himself t o t he t une
of Rs.17,67,409/-. It has come in t he document ary evidence
on record t hat t he pet it ioner has f orged t he ent ries in t he
b an k r eco r d an d h ad t h er eb y w i t h d r aw n a su m o f
Rs.17,67,409/-.
Cy b er Cr i m e - Law an d Pr act i ce 85

Co u r t s’ Ob ser v at i o n

The learned Trial Court , af t er appreciat ing t he evidence on


record, observed as under:-

" 1. All t he p ro secu t ion w it n esses h ave su pp o rt ed t h e


prosecution case. The complainant PW-1 A. Siridhar and
PW-2 Girraj Parshad Sharma have stated t hat the accused
Sanjay Kumar Bhat ia w as t he employee of M /s Virmat i
Sof t w are and Telecommunicat ion Lt d. and have been
ap p o i n t ed i n t h ei r b r an ch f o r t h e p u r p o se o f
maint enance of Sof t w are Syst em supplied by t hem t o
t he bank. This f act st and corroborat ed by document Ex.
P36 w herein in Team No. 7 t he name of Sanjay has been
ment ioned along w it h his residence number and Pager
number. Sanjay Kumar Bhat ia has also opened an A/c
No. 21499 in t heir bank as evident f rom t he account
opening f orm of t he accused Sanjay Bhat ia placed on
record as Ex.P37 along w it h specimen signat ure Card Ex.
P38 and t he cheque book issued regist er Ex.P39. Furt her,
f rom t he bank st at ement of account no. 21499, Ex.P8,
on 1.8.2001, Rs. 2,00,000/- w as deposit ed by clearing and
Rs. 1/- as int erest . How ever, not hing is ment ioned as t o
w h at is t he b asis of clearing . In t h is regard , PW-3
M aheshw ar Rat h st at ed that during his inquiry he could
not find any support ing document or CRR No.66 of 2013
(O&M ) 6 voucher. The accused has also not produced any
evidence in t his regard. Rat her, Ex.PW1/D show s t hat
even t he amount of Rs.2,00,000/- has been t ransf erred
f ro m in t erest accou nt o n 1.8.2001. Th is f act st an d
co rr o b o r at ed b y t h e rep o r t Ex.P34 w h er ein i t i s
ment io ned t hat t h e accused h as increased in t erest
port ion in his ow n account t hrough f irst t ime creat ion
t o t he ext ent of Rs.2,00,000/- and t hen applied int erest
along w it h ot her SB account s and t o mislead t he Branch
employees, the accused has split t ed t he t ransact ion int o
2 part s,one ent ry is show n as " by int erest credit " as
Rs.1.00 and t he ot her by clearing as Rs.2,00,000/- and,
t heref ore, t he amount of Rs.2,00,000/- is ref lect ed in
account st at ement as `by clearing'.
86 Cy b er Cr i m e - Law an d Pr act i ce

2. Similarly, using the same modus operandi, accused forged


t he int erest ent ries on 1.8.2002 and 2.8.2000 and got
deposit ed Rs.3,00,000/- and Rs.4,20,000/- respect ively in
his account .
3. Furt her, t he accused used t he f ixed deposit account of
Sardar Jeet Singh. The account of Jeet Singh w as opened
on 8.3.2002 in w hich Rs.1,05,00,000/- w as deposit ed on
t hat day as evidence f rom Ex.P3. The st at ement of
account of Sardar Jeet Singh Ex.P3 shows t hat an int erest
of Rs.8,46,489/- w as deposit ed on 29.4.2002. How ever,
t h e sai d in t erest calcu lat ed w as an in f lat ed o n e,
calculated by forging entries to the effect as it the account
of Jeet Singh w as opened on a prior dat e. Thereaf t er,
o n 30.4.2002, accu sed t ran sf erred t h e amo u n t o f
Rs.8,46,489/- to t he account of Anil Kumar Sharma having
A/c No. 22618 which had already been closed on 1.9.2001,
as evident f rom Ex.P5, by forging t he CRR No.66 of 2013
(O&M ) 7 entries t o the ef fect that it was changed in bank
records f orm closed to o pen and on 8.5.2002, 13.5.2002
an d 18.5.2002, accused t ransf erred t h e amo un t of
Rs.2,50,000/-, Rs. 2,50,000/- and Rs.3,47,409/- respect ively
f rom t he account of Sh. Anil Kumar t o his account as
evident f rom Ex.P5 and Ex.P8 t o Ex.P12. Furt her, PW-3
Sh. M aheshw ar Rat h has st at ed as also evident f rom his
report Ex.P34 t hat t he t ransact ion root ed t hrough t he
account of Jeet Singh and Anil Kumar has been delet ed
by accused using SRF f iles w hich w ere lat er recovered
during Audit .
4. M o reover, Ex.P15 t o Ex.P24 show t hat accused h as
w it hdraw n t he said amount t hrough cheques.
5. In t his manner, t he accused w as dishonest ly f orged t he
bank records t o cause w rongf ul loss t o t he bank and
t hereby cheat ed t he concerned bank by deposit ing
Rs.17,67,409/- in his account and t hereaf ter w it hdrawing
the same. Furt her, the accused has admitt ed his guilt vide
let t er Ex.P44. The signat ure of accused on t he let t er
Ex.P44 are similar t o t he specimen signat ures of accused
on bank opening account card Ex.P38 as w ell as on t he
Cy b er Cr i m e - Law an d Pr act i ce 87

bank opening Account f orm Ex.P37. Furt hermore, f rom


t he bare perusal of t he confessional stat ement Ex.P44, it
clearly emanat es t hat t he manner in w hich t he w ord
`Sanjay' has been w rit t en is similar t o t he manner w ord
`Sanjay' has been w ritt en by accused below his signatures
by accused as he even ret urned in his st at ement under
Sect ion 313 Cr.P.C, 1973 M oreover, Ex.P47 and Ex.P48
show t hat accused has tendered Rs.3,50,000/- t o the bank
in respect of the amount fraudulently withdrawn by him
w hich show s t he CRR No.66 of 2013 (O&M ) 8 admission
of guilt as evident f rom Ex.P47 and Ex.P48.
6. On t he ot her hand, t he learned counsel f or t he accused
during t he course of argument s has argued t hat no
specif ic passw ord w as allot t ed t o Sanjay. How ever, no
doubt passw ord is given t o an employee but it has
surfaced in t he t est imonies of t he prosecut ion w it nesses
t hat f or t he purpose of maint aining t he soft w are and in
t his manner had assess t o all those f iles to w hich only the
employee of t he bank could have. M oreover, as t he
amount w as deposit ed in t he account of accused and he
has w it hdraw n it , t here is no f orce in said argument .
7. In t his manner, t he accused had cheat ed t he bank and
f orged t he elect ronic record t o cause w rongf ul loss t o
bank and w rongful gain t o himself . The prosecution has
been able t o prove beyond reasonable doubt s, t he
ingredient s of Sect ions 420, 467, 468 and 471 IPC.
8. Furt hermore, clearly t he accused has t ampered w ith t he
comput er source document and he has also alt ered in
t he informat ion w hich resided in t he computer resource
and by doing so he commit t ed t he of f ences under
Sections 65 and 66 of the Information & Technology Act ,
2000. At t he same t ime, it is pert inent t o ment ion t hat
although accused w as having secured assess t o elect rical
record of t he bank and he forged the entries and cheated
t o cause w rongf ul gain t o himself but t here is no such
breach of conf ident ialit y by disclosing t he inf ormat ion
t o any ot her person and as such he is acquit t ed of
o f f en ce u n d er Sect i o n 72 o f t h e In f o r m at i o n &
Technology Act , 2000."
88 Cy b er Cr i m e - Law an d Pr act i ce

Co n v i ct i o n
The learned Trial Court was wholly justified in convicting the
accused-petitioner and the learned Appellate court, ascan be
clearly seen, CRR No.66 of 2013 (O&M) 9 had not committed
any error in upholding the conviction of the accused petitioner.
Learned counsel for the petitioner failed to point out any
misreading or non-reading of any evidence and could not point
out any infirmity in the judgments of the Courts below. The
findings of guilt, reached against the accused-petitioner does
not, thus, suffer from any infirmity, legal or factual and does
not therefore, warrant interference by this Court in exercise of
this Court's revision jurisdiction.
In view of the above, there isno merit in the contentions raised
by the learned counsel for the petitioner. Dismissed in limine.
2. Fat i m a Ri sw an a v s. St at e Rep . b y A CP, Ch en n ai &
Or s26
(In The High Court of M adras)
The appellant is a prosecut ion w it ness in S.C. No. 9 of 2004
w herein respondent s 2 t o 6 are t he accused f acing t rail f or
of f ences pu nish able un der Sect ion 67 o f Inf ormat ion
Tech n o l o g y A ct , 2000 r /w Sect i o n 6 o f In d ecen t
Represent at ion of Women (prohibit ion) Act , 1986, Under
Sect ion 5 & 6 of Immoral Traff ic (Prevent ion) Act , 1956,
Under Sect ion 27 of Arms Act , 1959 And Sect ions 120(B),
506(ii), 366, 306 & 376 I.P.C. Th e said t rial relat es t o
exploit at ion of cert ain men and w omen by one of t he
accu sed Dr. L. Pr ak ash f o r t h e p u r p o se o f m ak i n g
pornographic phot os and videos in various act s of sexual
int ercourse and thereaf t er selling t hem t o f oreign w ebsit es.
The said session's t rail came t o be allot t ed t o t he f oreign
w ebsit es. The said Session's t rial came t o be allot t ed t o t he
V Fast Track Court , Chennai w hich is presided over by a lay
Judge. When t he said t rail bef ore t he V Fast Track Court
w as pending cert ain criminal revision pet it ions came t o be
f iled by t he accused against t he orders made by t he said
court reject ing t heir applicat ions f or supply of copies of 74
Compact Discs (CDs) cont aining pornographic mat erial on
which the prosecution was relying. The said revision petitions
Cy b er Cr i m e - Law an d Pr act i ce 89

w ere reject ed by t he M adras High Court by it s order dat ed


13t h February, 2004 holding t hat giving all t he copies of
t he concerned CDs might give room for copying such illegal
mat erial and illegal circulat ion of t he same, how ever t he
court permit t ed t he accused persons t o peruse t he CDs of
t heir choice in t he Chamber of t he Judge in t he presence of
t h e accu sed , t h eir ad vo cat es, t h e exp ert , t h e p u b lic
prosecut or and t he Invest igat ing Of f ice and also observed
that t he case be t ransferred t o another court with competent
jurisdict ion presided by a male of f icer at t he opt ion of t he
sessions judge and t aking t he same t he accused f iled a
revision petition for transferred to Fast track 4 court presided
by t he male of f icer and t he Appellant alleged t hat she
w ould be embarrassed if t he t rail is conduct ed by t he male
presiding of f icer and t hat t he lady sessions judge didn't
object or t he t rial of t he case and the Appellant alleged t hat
she w ould be embarrassed if t he t rial is conduct ed by t he
male presiding of f icer and t hat t he Lady sessions judge
didn't object t o t he t rail of t he case in t he f ast t rack 5 and
t he high court has erred in t ransf erring t he case and t he
Appellant w as not given any opport unit y of being heard
bef ore t he alleged t ransf er. The learned counsel f or t he
respondent s contended t hat t he Appellant learned t hough
arrayed as w it ness is f or all purpose an accused herself and
law of f icer appearin g in t he case had expressed t heir
emb arrassmen t in co n du ct in g t he t rial b ef o re a lad y
Presiding Of f icer and even t hough t he Presiding Of f icer did
not expressly record her embarrassment , it w as apparent
t hat she t oo w ant ed t he case t o be t ransf erred t o anot her
court , t heref ore, t his Court should not int erf ere w it h t he
order of t ransf er. It w as held t hat t his appeal has t o be
allow ed in t he sessions case No. 9 of 2004 now t ransf erred
t o t he IV Fast Track Court Chennai be Transf erred back t o
t he V Fast Track Court , Chennai.
3. Av n i sh Baj aj v s. St at e (N.C.T.) o f Del h i 27
(In The High Court of Delhi)
Fact s
Avnish Bajaj (Appellant s), CEO of Baazee.com, an online
90 Cy b er Cr i m e - Law an d Pr act i ce

au ct io n w eb sit e, w as arrest ed f o r d ist rib u t in g cyb er


pornography. The charges st emmed f rom t he f act t hat
someone had sold copies of a pornographic CD t hrough
t he Baazee.com w ebsit e.
The court grant ed him bail in t he case. Fact ors considered
by t he court w ere:
1. There w as no prima f acie evidence t hat M r. Bajaj directly
or indirect ly published t he pornography,
2. The act ual obscene recording/clip could not be view ed
on Baazee.com,
3. Mr. Bajaj w as of Indian origin and had family ties in India.
Hi st o r y o f t h e case
Avnish Bajaj is t he CEO of Baazee.com, a cust omer-t o-
cust omer w eb sit e, w h ich f acilit at es t h e on line sale of
propert y. Baazee.com receives commission f rom such sales
and also generat es revenue from advert isement s carried on
it s w eb pages.
An obscene MM S clipping was listed f or sale on Baazee.com
on 27t h November, 2004 in t he name of " DPS Girl having
f u n" . Some copies o f t he clip pin g w ere sold t h rou gh
Baazee.com and t he seller received t he money f or t he sale.
A vn i sh Baj aj w as ar r est ed u n d er sect i o n 67 o f t h e
Inf ormat ion Technology Act , 2000 and his bail applicat ion
was rejected by t he trial court . He t hen approached the Delhi
High Court f or bail.
Issu es r ai sed b y t h e Pr o secu t i o n
1. The accused did not st op payment t hrough banking
channels af t er learning of t he illegal nat ure of t he
t ransact ion.
2. The it em descript ion " DPS Girl having f un" should have
raised an alarm.
Issu es r ai sed b y t h e Def en ce
1. Sect ion 67 of t he Inf ormat ion Technology Act relat es t o
Cy b er Cr i m e - Law an d Pr act i ce 91

publicat ion of obscene mat erial. It does not relat e t o


t ransmission of such mat erial.
2. On coming t o learn of t he illegal charact er of t he sale,
remedial st eps w ere t aken w it hin 38 hours, since t he
int ervening period w as a w eekend.
Fi n d i n g s o f t h e co u r t
1. It has not been est ablished f rom t he evidence t hat any
p ub licat ion t o ok p lace b y t he accu sed , direct ly o r
indirect ly.
2. The act ual obscene recording/clip could not be view ed
on t he port al of Baazee.com.
3. The sale considerat ion w as not rout ed t hrough t he
accused.
4. Prima facie Baazee.com had endeavoured t o plug t he
loophole.
5. Th e accu sed h ad act i vel y p ar t i ci p at ed i n t h e
investigat ions.
6. The nat ure of t he alleged of f ence is such t hat t he
evidence has already cryst allized and may even be
t amper proof .
7. Even t hough t he accused is a f oreign cit izen, he is of
Indian origin wit h f amily root s in India.
8. The evidence t hat has been collected indicat es only t hat
the obscene material may have been unw itt ingly of fered
f or sale on t he w ebsit e.
9. The evidence t hat has been collect ed indicat es t hat t he
heinous nat ure of the alleged crime may be at tribut able
t o some ot her person.
Decisi o n
1. The court grant ed bail t o M r. Bajaj subject t o f urnishing
t w o suret ies of Rs. 1 lakh each.
2. The court ordered Mr. Bajaj to surrender his passport and
not t o leave India w it hout t he permission of t he Court .
92 Cy b er Cr i m e - Law an d Pr act i ce

3. The court also ordered M r. Bajaj t o part icipat e and assist


in the invest igation.
4. S. Sekar vs. The Principal General M anager (Telecom)
(B.S.N.L.)
(In The High Court of M adras)
Fact s o f t h e Case
The pet it ioner is an employee of t he second respondent ,
B.S.N.L, w orking as a Telecom Technical Assistant (Sw it ch). It
so happened t hat w hile he w as w orking in SIPCOT M BM
M ain Exch ange, Keeranur, t h e B.S.N.L. higher of f icials
suspect ed him and ot hers f or having commit t ed of fences in
manipulat ing the comput er syst em and t hereby causing loss
t o B.S.N.L. The FIR in Crime No. 1 of 2004 w as came t o be
regist ered on 06.01.2004 by t he Police, Pudukot t ai, f or t he
off ences under Sect ion 406, 420 and 468 I.P.C. and 43(g) of
t he Inf ormat ion Technology Act , 2000.
The main t hrust of t he grievance of t he pet it ioner in t his
case is t hat w hen t here is a special enact ment namely, t he
Inf ormat ion Technology Act , 2000, w hich is in operat ion
relating t o t he alleged misconduct at tribut ed as against the
petitioner, there is no question of invoking the penal sections
under t he Indian Penal Code, It is also his specif ic plausible
argument that section 43(g) of t he Informat ion Technology
Act , 2000, has been invoked w it hout any basis. The Second
respondent f iled t he comput er w hich w as adopt ed by t he
f irst respondent f iled t he comput er w hich w as adopt ed by
t h e f irst resp o n d en t al so , d en yin g an d ref u t in g t h e
allegat ions and t he avermen t s highlig ht s t hat t he FIR
regist ered w as proper and t he Police is invest igat ing int o
t he mat t er properly.
The point f or consideration is as to w het her t he FIR referred
t o supra, has t o be declared null and void as prayed by t he
Writ petit ioner?
Ju d g em en t
It w as held t hat t he Police t o invest igat e t horoughly int o
t he mat t er and add or delet e t he penal Sect ions under t he
Cy b er Cr i m e - Law an d Pr act i ce 93

Inf ormat ion Techno logy Act , 2000, as w ell as IPC and
ultimately, it is for the criminal court w hich w ould be seized
of t he mat t er t o decide on t hat . The Sect ion 43(g) of t he
Inf ormat ion Technology Act , 2000, invoked by t he police
and specif ied in t he FIR is declared void. Accordingly, t he
Writ pet it ion is ordered. No cost s, connected M.P. are closed.
5. Sy ed A si f u d d i n an d Or s. v s. Th e St a t e o f A n d h r a
Pr ad esh A n d A n o t h er 29
(In The High Court of Andhra Pradesh)
Fact s
Tat a Indicom employees w ere arrest ed f or manipulat ion of
t he elect ronic 32-bit number (ESN) programmed int o cell
p h o n es t h at w ere excl u sively f ran ch ised t o Rel ian ce
Inf ocomm.
The co u rt h eld t h at su ch manip ulat io n amo u n t ed t o
t ampering w it h comput er source code as envisaged by
sect ion 65 of t he Inf ormat ion Technology Act , 2000.
Case
Reliance Inf ocomm launched a scheme under w hich a cell
phone subscriber w as given a digit al handset w ort h Rs.
10,500/- as w ell as service bundle f or 3 years w it h an init ial
payment of Rs. 3350/- and mont hly outf low of Rs. 600/-. The
subscriber w as also provided a 1 year w arrant y and 3 year
insurance on t he handset .
The condit ion w as t hat t he handset w as t echnologically
locked so t hat it w o uld on ly w o rk w it h t he Reliance
Infocomm services. If the customer want ed t o leave Reliance
services, he w ould have t o pay some charges including t he
t rue price of t he handset . Since t he handset w as of a high
q u al i t y, t h e m ar k et r esp o n se t o t h e sch em e w as
phenomenal.
Unident if ied persons cont acted Reliance customers w it h an
off er t o change t o a low er priced Tat a Indicom scheme. As
part of t he deal, t heir phone w ould be t echnologically
" unlocked" so t hat t he exclusive Reliance handset s could
be used f or t he Tat a Indicom service.
94 Cy b er Cr i m e - Law an d Pr act i ce

Reliance of f icials came t o know about t his " unlocking" by


Tat a employees and lodged a First Inf ormat ion Report (FIR)
u n d er vari o u s p r o vi si o n s o f t h e In d i an Pen al Co d e,
Inf ormat ion Technology Act and t he Copyright Act .
The police t hen raided some off ices of Tat a Indicom in
Andhra Pradesh and arrested a few Tata Tele Services Limited
of f icials f or re¬programming t he Reliance handset s.
Th ese arr est ed p er so n s ap p r o ach ed t h e Hig h Co u r t
request ing t he court t o quash t he FIR on t he grounds t hat
t heir act s did not violat e t he said legal provisions.
Issu es r ai sed b y t h e Def en se i n t h e case
1. It is alw ays open f or t he subscriber t o change f rom one
service provider t o t he ot her service provider.
2. The subscriber w ho w ant s t o change f rom Tat a Indicom
alw ays t akes his handset , t o ot her service providers t o
get service connect ed and t o give up Tat a services.
3. The handsets brought t o Tat a by Reliance subscribers are
capable of accommodat ing t w o separat e lines and can
be act ivat ed on principal assignment mobile ( NAM 1 or
NAM 2). The mere act ivat ion of NAM 1 or NAM 2 by
Tat a in relat ion t o a handset brought t o it by a Reliance
subscriber does not amount t o any crime.
4. A t elep h on e h and set is n eit her a comp ut er n o r a
comput er syst em cont aining a comput er programmer.
5. There is no law in f orce w hich requires t he maint enance
of " comput er source code" . Hence sect ion 65 of t he
Inf ormat ion Technology Act does not apply.
Co u r t s Ob ser v at i o n
1. As per sect ion 2 of t he Inf ormat ion Technology Act , any
elect ronic, magnet ic or opt ical device used f or st orage
of inf ormat ion received t hrough satellit e, microw ave or
ot her communicat ion media and t he devices w hich are
p r o g r am m ab l e an d cap ab l e o f r et r i evi n g an y
inf ormation by manipulat ions of elect ronic, magnetic or
opt ical impulses is a comput er w hich can be used as
comput er syst em in a comput er net w ork.
Cy b er Cr i m e - Law an d Pr act i ce 95

2. The inst ruct ions or programmed given t o comput er in a


language know n t o t he comput er are not seen by t he
users of t he computer/consumers of comput er funct ions.
This is know n as source code in comput er parlance.
3. A cit y can be divided int o several cells. A person using a
p h o n e in o n e cell w ill b e p lu g g ed t o t h e cen t ral
t r an smi t t er o f t h e t eleco m p ro vid er. Th i s cen t r al
t ransmit t er w ill receive t he signals and t hen divert t hem
t o t he relevant phones.
4. When t he person moves f rom one cell t o anot her cell in
the same city, the system, i.e., Mobile Telephone Switching
Of fice (MTSO) automatically transf ers signals from t ow er
t o t ow er.
5. All cell p hone service pro vid ers have special cod es
dedicat ed t o t hem and t hese are int ended t o ident if y
t he phone, t he phone's ow ner and t he service provider.
6. Syst em Ident if icat ion Code (SID) is a unique 5-digit
number t hat is assigned t o each carrier by t he licensor.
Every cell phone operat or is required t o obtain SID f rom
t he Government of India. SID is programmed int o a
phone w hen one purchases a service plan and has t he
phone act ivat ed.
7. Elect ronic Serial Number (ESN) is a unique 32-bit number
programmed int o t he phone w hen it is manuf act ured
by t he instrument manufact urer. ESN is a permanent part
of t he phone.
8. M obile Identification Number (MIN) is a 10-digit number
derived f rom cell phone number given t o a subscriber.
M IN is programmed int o a phone w hen one purchases a
service plan.
9. When the cell phone is switched on, it listens for a SID on
t he cont rol channel, w hich is a special frequency used by
t he phone and base st ation t o t alk t o one another about
t hings like call set -up and channel changing.
10. If t he phone cannot f ind any cont rol channels t o list en
t o, t he cell phone displays " no service" message as it is
out of range.
96 Cy b er Cr i m e - Law an d Pr act i ce

11. When cell phone receives SID, it compares it t o t he SID


programmed int o t he phone and if t hese code numbers
mat ch, cell know s t hat it is communicat ing w it h its home
syst em. Along w it h t he SID, t he phone also t ransmit s
regist ration request and M TSO w hich keeps t rack of t he
phone's locat ion in a dat abase, know s w hich cell phone
you are using and gives a ring.
12. So as to match with the system of the cell phone provider,
every cell phone cont ains a circuit board, w hich is t he
brain o f t he ph on e. It is a co mbinat io n of several
computer chips programmed t o convert analog to digit al
and digit al t o analog conversion and t ranslat ion of t he
out going audio signals and incoming signals.
13. This is a micro processor similar to t he one generally used
in t he compact disk of a deskt op comput er. Wit hout t he
circuit board, cell phone inst rument cannot f unct ion.
14. When a Reliance cust omer opt s f or it s services, t he M IN
and SID are programmed int o t he handset . If someone
m an i p u l at es an d alt ers ESN, h an d set s w h i ch ar e
exclusively used by t hem become usable by ot her service
providers like TATA Indicom.
Decisi o n
1. A cell phone is a comput er as envisaged under t he
Inf ormat ion Technology Act .
2. ESN and SID come w it hin t he def init ion of " comput er
so urce cod e" u nder sect io n 65 o f t he Inf ormat ion
Technology Act .
3. When ESN is alt ered, t he of f ence under Sect ion 65 of
Inf ormat ion Technology Act is at t ract ed because every
service provider has t o maint ain it s ow n SID code and
also give a cust omer specific number t o each inst rument
used t o avail t he services provided.
4. Whet her a cell phone operat or is maint aining comput er
source code, is a mat t er of evidence.
5. In Sect ion 65 of Inf ormat ion Technology Act , 2000 t he
Cy b er Cr i m e - Law an d Pr act i ce 97

disjunct ive w o rd " o r" is u sed in b et w een t he t w o


phrases-
a. " w hen t he comput er source code is required t o be
kept "
b. " maint ained by law f or t he t ime being in f orce"
6. D' zi n e Gar ag e Pv t . Lt d . rep . b y i t s Di rect o r M r. Har i
Set h u r am an v s. D' zi n e Caf é FZE & D' zi n e Caf é FZE
v s. D' zi n e Gar ag e Pv t . Lt d . r ep . b y i t s Di rect o r M r.
Har i Set h u r am an 30
(In The High Court of M adras)
Fact s o f t h e Case
Plaintiff registered proprietor of the service mark 'D'zine filed
suit f or permanent inject ion against Applicant -Def endant
w ho w as using t he mark 'D'zine' caf é as a service mark and
as p art o f t h eir co rp o r at e n am e an d d o m ain n am e
'w ww.Dzinecafe.com'- Respondent /Plaint iff cont ended that
the Applicant - Defendant has deliberately adopted a similar
service mark/t rade name D'zine caf é in a calculated att empt
t o cash in on t he reput at ion and goodw ill enjoyed by t he
Respondent /Plaint if f and t o get illicit and quick gains
w it hout put t ing any subst ant ial ef f ort s. Int erim injunct ion
grant ed. Hence, application by Defendant t o vacate interim
injunct ion and t o st rike t he pleadings and reject t he plaint
Applicant -Def endant cont ended t hat t he Respondent -
Plaint if f has no of f ice in India and hence present Court has
no jurisdict ion t o t ry t he mat t er and t heref ore, t he plaint
w as liable t o be reject ed. It w as Held t hat to just if y an Order
of reject ion of plaint , t he Def endant w ould be required t o
show a very st rong case in his f avour and t he pow er w ould
be exercised sparingly and only in except ion cases, since it
w ould int erf ace w it h t he right of t he part y t o proceed w it h
t h e t rial t o g et t o it leg it imat e and accordin g t o t he
substantive merit of his case – Such a case has not been made
out by t he Def endant – it w as held t hat applicat ion f or
reject ion of plaint not maint ainable.
Def endant sought vacat ion of int erim injunct ion on t he
ground t hat t he regist rat ion is f or a logo only and t hat
98 Cy b er Cr i m e - Law an d Pr act i ce

'D'zine' w as not a coined w ord, it is a corrupt from of design


and is commonly used – Furt her content ed that , D'zine' caf é
w ere suf f icient ly dif f erent and not likely t o mislead and
many ot hers are using it .
Ju d g em en t
Held, f or grant ing int erim injunct ion phonet ic similarit y
cannot be ignored and prior user must be proved and
dishonest intention must be t here. In t he inst ant case, t here
is phonet ic similarit y
Furt her, 'D'zine not a generic w ord, it cannot be said t o carry
dist inct ive ref erence t o a part icular t rade, becoming publici
jiris. As business of part ies are almost same and t he f act t hat
one is 'Dzine' caf é and ot her is 'Dzine' garage, client ele is
likely t o be conf used and t hey are t he same – prior user
est ablished by Plaint if f – No specif ic denial of t he charge
t hat t he Def endant is t aking advant ages of t he plaint if f
mark- Usage of t he same w ord by ot hers and ot hers and
t hat is a common word is no def ence in an act ion for interim
injunct ion – Int erim injunct ion grant ed.
7. Ni r av Nav i n b h ai Sh ah & o r s. v s. St at e o f Gu j ar at an d
A n o t h er 31
(In The High Court Of Gujarat )
Fact s o f t h e Case
The applicant s, original accused in crime I.C.R. No. 54 of 2004
dat ed 26.02.2004 regist ered w it h sect or 7 police st at ion
Gandhinagar f or of f ences punishable under sect ions 381,
408, 415, 418, 420 read w it h sect ions 34 and 120B of t he
Indian Penal Code and section 66 and 72 of the Informat ion
Technology Act , 2000 (herein af t er ref erred to as 't he IT Act
f or short ) have pref erred t his applicat ion under sect ion 482
of t he Code of Criminal Procedure 1973 (h erein af t er
ref erred t o as 't he code' f or short ) f or quashing of FIR I.C.R.
No. 54 of 2004 dat ed 26.02.2004 regist ered w it h Sect or No.
7 Police Station Gandhinagar and t he resultant Criminal Case
No. 54 of 2004 dat ed 26.02.2004 regist ered w it h sect or No.
7 Police station Gandhinagar and the result ant Criminal case
Cy b er Cr i m e - Law an d Pr act i ce 99

No.3528 of 2004 pending bef ore the judicial M agistrat e First


Class Gandhinagar, mainly on the grounds that the facts and
allegation leading to lodging FIR show that the real disput e
was a civil dispute and as t he same has been amicably settled
bet w een t he part ies, no usef ul purpose w ould be served in
continuing the criminal proceedings, rather cont inuation of
same w ould be count erproduct ive t o the interest of justice.
Judgment
The complaint also does not cont ain any essential ingredient
for maintaining criminal proceeding for the alleged offences.
As it is st at ed in t he argument s of t he learned counsels t hat
t he part ies have f iled civil suit s also in respect of t he same
disput e. The ent ire disput e bet w een t he part ies is resolved
by amicable set t lement. The alleged hacking is perpet rat ed
on t he Complainant s comput er syst em only w hich said t o
have dat a pert aining t o it s client . The Cou nsels have
submit t ed t hat on same of t he w eb sit es t hese dat a are
already available. The disput e appears t o be privat e in
nat ure. The of f ence alleged is not st rict ly af f ect ing or
inf ringing any ot her individual or cit izen. Thus looking t o
t h e n at u re o f t h e d isp u t es, i t can w ell b e said t h at
cont inuat ion of t he same is not in int erest of just ice. It w as
held t hat t he FIR 54 of 2004 regist ered at sect or 7 Police
St at ion Gandhinagar and result ant Criminal Case No. 3528
of 2004 pending bef ore t he JM FC Gandhinagar deserve t o
be quashed in t he int erest of just and hereby t hey are
quashed. Rule is made absolut e.
8. SM C Pn eu m at i cs (In d i a) Pv t . Lt d . v s. Jo g esh Kw at r a 32
(In The High Court of Delhi)
Fact s : Cy b er Def am at i o n
In India's f irst case of cyber def amat ion, a Court of Delhi
assumed jurisdict ion over a mat t er w here a corporat e’s
reput at ion w as being def amed t hrough emails and passed
an import ant ex-part e injunct ion.
In t his case, t he def endant Jogesh Kw at ra being an employ
of t he p lain t if f company st art ed sen ding d erog at ory,
100 Cy b er Cr i m e - Law an d Pr act i ce

def amat ory, obscene, vulgar, f ilt hy and abusive emails t o


his employers as also t o dif f erent subsidiaries of t he said
company all over t he w orld w it h t he aim t o def ame t he
company and it s M anaging Direct or M r. R K M alhot ra. The
plaintiff filed a suit f or permanent injunct ion restraining t he
def endant f rom doing his illegal act s of sending derogat ory
emails t o t he plaint if f .
On behalf of t he plaint if fs it w as cont ended t hat t he emails
sent by t he def endant w ere dist inct ly obscene, vulgar,
abusive, intimidating, humiliating and defamatory in nature.
Counsel f urt her argued t hat t he aim of sending t he said
emails w as t o malign t he high reput at ion of t he plaint if f s
all over India and t he w orld. He f urt her cont ended t hat t he
act s of t he def endant in sending t he emails had result ed in
invasion of legal right s of t he plaint if f s.
Furt her t he def endant is under a dut y not t o send t he
aforesaid emails. It is pertinent to note t hat af ter the plaintiff
company discovered t he said employee could be indulging
in t he mat t er of sending abusive emails, t he p laint if f
t erminat ed t he services of t he def endant .
Ju d g em en t
Af t er hearing det ailed argument s of Counsel f or Plaint if f ,
Hon'ble Judge of t he Delhi High Court passed an ex-part e
ad int erim injunct ion observing t hat a prima f acie case had
been made out by the plaintiff. Consequently, the Delhi High
Court rest rained t he def endant f rom sending derogat ory,
defamatory, obscene, vulgar, humiliating and abusive emails
either t o the plaintif f s or to its sist er subsidiaries all over t he
w orld including t heir M anaging Direct ors and t heir Sales
and M arket ing depart ment s. Furt her, Hon'ble Judge also
rest rained t he def endant f rom publishing, t ransmit t ing or
causing t o be published any inf ormation in t he act ual world
as also in cyberspace w hich is derogat ory or def amat ory or
abusive of t he plaint if f s.
Th is o rd er o f Delh i Hig h Co u rt assu mes t remen d o u s
signif icance as t his is f or t he f irst t ime t hat an Indian Court
assu m es j u r i sd i ct i o n i n a m at t er co n cer n i n g cyb er
Cy b er Cr i m e - Law an d Pr act i ce 101

def amat ion and grant s an ex-part e injunct ion rest raining
t he def endant f rom def aming t he plaint if f s by sending
derogat ory, def amat ory, abusive and obscene emails eit her
t o t he plaint if f s or t heir subsidiaries.
9. Nassco m v s. A j ay So o d & Ot h er s
(In The High Court of Delhi)
Fact s
In a landmark judgment in t he case of Nat ional Associat ion
of Sof t w are and Service Companies vs Ajay Sood & Ot hers,
delivered in M arch, 2005, t he Delhi High Court declared
‘phishing’on t he int ernet t o be an illegal act , ent ailing an
injunct ion and recovery of damages.
Elaborat ing on t he concept of ‘phishing’, in order t o lay
dow n a precedent in India, t he court st at ed t hat it is a f orm
of internet fraud where a person pret ends t o be a legit imate
associat ion, such as a bank or an insurance company in order
t o ext ract personal dat a f rom a cust omer such as access
co d es, p assw o rd s, et c. Per so n al d at a so co llect ed b y
misrepresent ing t he ident it y of t he legit imat e part y is
commonly used f or t he collect ing part y’s advant age. Court
also st at ed, by w ay of an example, t hat t ypical phishing
scams involve persons who pretend to represent online banks
and siphon cash f rom e-banking account s af t er conning
consumers int o handing over conf ident ial banking det ails.
Ju d g em en t
The Delhi HC st at ed t hat even t hough t here is no specif ic
legislat ion in India t o penalise phishing, it held phishing t o
be an illegal act by def ining it under Indian law as “a
misrepresent at ion made in t he course of t rade leading t o
conf usion as t o t he source and origin of t he e-mail causing
immense harm not only t o t he consumer but even t o t he
person w hose name, ident it y or passw ord is misused”. The
court held t he act of phishing as passing of f and t arnishing
t he plaint iff ’s image.
The plaint if f in t his case w as t he Nat ional Associat ion of
Softw are and Service Companies (NASSCOM), India’s premier
102 Cy b er Cr i m e - Law an d Pr act i ce

sof t w are associat ion. The def endant s w ere operat ing a
p l acem en t ag en cy i n vo l ved i n h ead -h u n t i n g an d
recruit ment . In order t o obt ain personal dat a, w hich t hey
could use f or purposes of head-hunt ing, t he def endant s
composed and sent e-mails t o t hird part ies in t he name of
NASSCOM .
The high court recognised t he t rademark right s of t he
plaint if f and passed an ex-part e ad-int erim injunct ion
rest raining t he def endant s f rom using t he t rade name or
any ot her name decept ively similar t o NASSCOM . The court
f urther rest rained t he def endant s from holding t hemselves
out as being associat es or a part of NASSCOM .
The court appoint ed a commission t o conduct a search at
t he def endant s’premises. Tw o hard disks of t he comput ers
f rom w h ich t he f rau d u len t e-mails w ere sent b y t h e
def endant s t o various part ies w ere t aken int o cust ody by
t he local commissioner appoint ed by t he court .
The offending e-mails w ere t hen downloaded from the hard
disks and present ed as evidence in court .
During t he progress of t he case, it became clear t hat t he
defendants in whose names t he off ending e-mails were sent
w ere f ict it io u s iden t it ies creat ed b y an emplo yee o n
def endant s’ inst ruct ions, t o avoid recognit ion and legal
act ion. On discovery of t his f raudulent act , t he f ict it ious
names were delet ed f rom t he array of part ies as defendant s
in t he case.
Subsequently, t he defendant s admitt ed their illegal acts and
t he part ies set t led t he mat t er t hrough t he recording of a
compromise in t he suit proceedings. According t o t he t erms
of compromise, t he def endant s agreed t o pay a sum of Rs.
1.6 million t o t he plaint if f as damages f or violat ion of t he
plaint iff’s t rademark right s. The court also ordered t he hard
disks seized f rom t he def endant s’ premises t o be handed
over t o t he plaint if f w ho w ould be t he ow ner of t he hard
disks.
This case achieves clear milest ones: It brings t he act of
“phishing” into the ambit of Indian law s even in the absence
Cy b er Cr i m e - Law an d Pr act i ce 103

of specif ic legislat ion; It clears t he misconcept ion t hat there


is no “damages cult ure” in India f or violat ion of IP right s;
This case reaf f irms IP ow ners’ f ait h in t he Indian judicial
system’s ability and willingness to protect intangible property
right s and send a strong message t o IP ow ners t hat t hey can
do business in India w it hout sacrif icing their IP right s.
10. St at e o f Tam i l Nad u v s. Su h as Ku t t i 34
Fact s
Assist ant Commissioner of Police, Cyber Crime Cell, C.C.B.
Egmore, Chennai filed Final Report against the accused, that
on 7.2.04, evening at Cyber Caf é Hello World Cent re, Sion,
Mumbai having an I.P.61.11.10.99, the accused with intention
of harming the reputation of the Complainant Ms. R, created
user id in t he name of her and composed an obscene
message int ending t hat such document shall be used f or
p o st in g in d if f eren t o b scen e Yah o o Gro u p , w it h t h e
int ent ion t o make others t o believe t hat t he document w as
made b y h er, so t hat t he p ersons seeing t h e ob scene
message w ould send off ending calls t o her, in harming her
reput at ion and by insult ing her modest y by t he w ords
exhibited in the email and in the course of same t ransact ion,
on 7.2.04, evening at Cyber Caf é Hello World Cent re, Sion,
M umbai, having an IP 61.11.10.99 t he Accused post ed
obscene message w hich are lascivious and also have t he
eff ect to corrupt persons w ho are likely to read and see such
obscene messages and caused t o t he published in dif f erent
o b scen e Yah o o g r o u p s an d i n t h e co u r se o f sam e
transaction, that on 9.2.04, morning, at Cyber Café Height en
Advert ising, M ahim, M umbai, having an IP 202.88.165.53
t he accused w it h int ent ion of harming t he reput at ion of
t he complainant M s. R ent ered user id. w hich w as creat ed
by him in t he name of t he complainant and composed an
obscene message int ending t hat such document shall be
used f or post ing in diff erent obscene Yahoo groups, w it h
t he int ent ion t o make ot hers t o believe t hat t he document
w as made by her, so t hat t he persons seeing t he obscene
message w ould send off ending calls t o her, in harming her
reput at ion and by insult ing her modest y by t he w ords
104 Cy b er Cr i m e - Law an d Pr act i ce

exhibit ed in t he email and t hat in t he course of same


t ransact ion, t hat on 9.2.04, morning at cyber caf é Height en
Advert ising, M ahim, M umbai, having an IP 202.88.165.53,
t he accused post ed obscene messages w hich are lascivious
and also have the ef f ect t o corrupt person w ho are likely t o
read and see such obscene messages and caused t o be
published in diff erent obscene Yahoo groups and t hereby
t he accused have commit t ed of fences u/s 469 IPC, 67 I.T Act .
469 & 509 IPC, and 67 of I.T. Act , 2000.
P.W. 1 is t he only daught er of P.W.2 and P.W.3.P.W.2 is t he
f at her, P.W.3 is t he mot her. Present ly, P.W.1 is w orking as a
senior Execut ive (H.R.) in a mult inat ional Company at
Chennai. She st udied her MBA Course in M umbai in t he year
1997, t he accused st udied w it h P.W.1 and she w as his
classmate is Mumbai. Accused belongs to Mumbai. On 9.2.04,
She opened her Rediff e-mail and not iced t he receipt of t wo
obscene messages w hich w ere post ed on 7.2.04 and 9.2.04.
She t ook comput er out put of t he obscene message post ed
on 7.2.04, Ex P.1 is t he obscene message. The obscene
message carried her Of f ice phone numbers and her e-mail
I.D. The house Phone number w as w rongly given. The said
obscene messages have been sent t hrough Yahoo w ebsit e
t o 5 sex groups. The comput er print out obscene message
post ed in @Radha lovers group is EX.P.2. On seeing t he said
messages, several persons sent t he responsive message and
many persons t ried t o cont act her over phone. Ex P3 series
is t he responsive messages. Several Phone calls came t o her
off ice. P.W.1 inf ormed t he said mat t er t o her parent s. The
messages w ere likely t o harm t he reput at ion and morale of
P.W.1.
P.W. 1 had married Jaichand Prajapat hi of Ut t ar Pradesh in
t he year 2001. The f amily lif e w as not happy and she
obt ained divorce t hrough court in t he year 2003. The
Accused w as cit ed as w it ness in t he divorce pet it ion. P.W.1
recollect ed one incident and suspect ed in t he involvement
of t he Accused. During college days in t he year 1997, t he
accused used t o t ravel w it h P.W.1 in t rain at M umbai. On
o n e su ch o ccasio n , Accu sed p o in t ed ou t an o b scen e
scribbling w it h phone number in t he t rain and t old P.W.1
Cy b er Cr i m e - Law an d Pr act i ce 105

t hat on seeing t he phone number, many persons w ould t ry


t o cont act t he phone number and t his is t he best w ay t o
sp oil t h e rep u t at io n o f a w o man . Th e Accu sed even
expressed his desire t o marry P.W.1, af t er t he engagement
of P.W.1 with Jaichand Prajapati was over. P.W.1 turned down
his proposal. In t he year 2003, t he Accused st ayed in t he
house of t he P.W.1 f or about 10 days st at ing t hat he has t o
at t end an int erview at Bangalore. At t hat t ime also, t he
accused off ered t o marry P.W.1 f or w hich P.W.1 and her
parent s ref used t he alliance. Thereaf t er, P.W.1 af t er his
ret urn t o M umbai w as in t he habit of making Phone calls,
sendin g S.M .S. M essages an d send ing E-mail t o P.W.1
f requent ly. Hence P.W.1 blocked t he e-mail I.D. of t he
accused. Ex.P5 is t he Comput er out put f or blocking t he e-
mail I.D. of t he accused.

On seeing the obscene message, P.W.1 discussed t he mat t er


w it h P.W.2 and P.W.3 and sought t he help of t he accused
over phone. P.W.1 and her parents issued a warning message
in t he name of PW 2 and PW 3 by creat ing an email ID viz.
parant2003@yahoo.co.in and transmitted same t o the yahoo
groups. She sent warning messages t o t he persons, w ho sent
responsive message in ExP.6 series. A copy of w arning
message w as also sent t o t he Accused.

P.W.1 lodged a complaint on 14/2/2004 along w it h Ex.P1 at


Cyber Crime Police. The complaint is Ex. P.4 P.W.12 w ho
received t he complaint direct ed P.W.4 t o obt ain header
det ails and ot her part iculars t o f ind out t he originat ion of
t he messages. P.W.4 w ent t o Cyber Caf é at Kennat h Lane,
Egmore along w it h P.W. 1 she dow n loaded t he message
t ook print out by using t he e-mail I.D. Parant 2003 @Yahoo.
Co.in Ex.P.9-Ex.P.12. She ext ract ed and st ored t he messages
in M o.2 floppies. Thereaft er P.W.12 gave a requisition t o the
Hat hw ay Cable and Dat a Com. Pvt . Lt d; under Ex.P.13, f or
which it gave a reply in Ex. P.14. P.W.12 also gave a requisition
t o Dishnet D.S.L. in Ex.P.13 and t he reply given by Dishnet
D.S.L is Ex.P.15. P.W.5 speaks about Ex.P.13 and Ex.P.14. P.W.6
speaks about Ex.P.15.P.W.12 also examined P.W.11 and
obt ained part iculars in Ex. P.29 series and conf irmed t hat
106 Cy b er Cr i m e - Law an d Pr act i ce

t he messag es w ere o riginat ed f ro m M umbai. P.W.12-


Invest igat ion Off icer regist ered F.I.R. Ex.P.34 on 20.2.04.
Thereaf t er, P.W.12 proceeded t o M umbai on 24.2.04, and
arrest ed t he Accused at M umbai on 25.2.04. He seized M o.1
Cell Phone f rom t he Accused under M ahazar Ex.P.8 P.W.8
and P.W.9 w ho are running brow sing Cent re at M umbai,
ident if ied t he Accused in t he presence of P.W.12. He seized
Ex.P.23, 24 regist ers f rom t hem. P.W.8 speaks about t he
Accused and t he seizure of Ex.P.22 and t he remarks made
by P.W.12 in Ex.P.23, P.W. 9 speaks about t he Accused t hat
he came t o t he brow sing cent re and signed in t he Regist er
Ex.P24 as R. Ex.P.25 is t he w ord w rit t en by t he Accused.
P. W. 12, brought t he Accused t o Chennai on 28.2.04, af t er
producing t he Accused before a M umbai Court. The Accused
gave a conf ession st at ement in t he presence of P.W. 10 and
he gave t he passw ord “an rose”. The said w ord is Ex.P.27.
The part iculars st ored in t he SIM Card w ere t aken print out
in Ex.P. 28 series t hrough S.M .S. Reader. P.W.12 w ent t o t he
off ice of P.W.7 and t ook comput er print out by using t he
passw ord “an rose”. He issued t he certif icat e in Ex.P.21. The
comput er print out s are Ex. P 16-P.20. P.W.12 complet ed
invest igat ion and laid charge sheet against t he Accused of
of f ences u/s 67 of I T Act and u/s 469,509 of IPC.
Ju d g em en t
The court is not inclined t o accept t he t heory project ed by
t he Accused t hat t he obscene messages w ould have been
created by P.W.1, P.W.2 and P.W.3 or by Jaichand Prajapat hi.
It is clear t hat the Accused himself has composed and posted
t he obscene messages f rom t he brow sing cent re of P.W.8
and P.W.9. This Court holds that t he prosecut ion has proved
its charges against t he accused beyond all reasonable doubt
and hence t he Accused is liable t o be punished.
The Accused w as heard regarding the quest ion of sent ence
u/s 248 (2) Cr.P.C. The Accused pleaded f or admonit ion. The
Accused is not a lay man. He is educat ed and st udied upt o
M .B.A. P.W.1 is holding a responsible post in a multinat ional
Company at Chennai. The Accused has chosen t o post t he
Cy b er Cr i m e - Law an d Pr act i ce 107

obscene message f or t he simple reason t hat she ref used t o


marry him. He did not behave like an educat ed man. Only a
f amily w oman can realise t he ment al suf f erings and pain if
unknow n persons cont act ed her t hrough phone and e-mail
an d in vit ed h er t o b ed . Th e m en t al su f f eri n g s an d
humiliation undergone by the P.W.1 cannot be compensated
in t erms of money or by solacial w ords. It cannot be st at ed
t hat t he Accused had act ed in a heat of passion. Tw o days
repeat edly he had sent t he obscene message— Comput er
syst em and brow sing cent re are meant f or learning t hings
and updat ing know ledge in various fields. The Accused has
misused t he same t o t ake revenge on a sophist icat ed lady.
Theref ore, t he Accused does not deserve leniency and is
liable t o be punished.
In t he result , t he Accused is f ound guilt y of of f ences u/s
469,509 IPC, and u/s 67 of I.T. Act . and t he Accused is
co n vi ct ed an d i s sen t en ced t o u n d er g o Ri g o r o u s
imprisonment for 2 years u/s 469 IPC, and to pay a fine Rs.500/
- i/d, t o undergo simple imprisonment f or 1 mont h and f or
t he of fence u/s 509 IPC, sentenced t o undergo 1 year simple
Imprisonment and t o pay a f ine of Rs.500/- i/d t o undergo
simple imprisonment for 1 mont h and for t he off ence u/s 67
of Inf ormat ion Technology Act 2000 t o undergo Rigorous
Imprisonment f or 2 years and t o pay a f ine of Rs.4,000/- i/d
t o u n d er g o S.I. f o r 6 m o n t h s. A l l sen t en ces t o r u n
concurrent ly. The period undergone by t he Accused w ill be
set off u/s 428 Cr.P.C.
11. Go o g l e In d i a Pv t . Lt d . v s. M /s.Vi sa k a In d u st r i e s
Li m i t ed an d an o t h er
(In t he High Court of Andhra Pradesh)
The pet it ioner/A-2 is accused of of f ences punishable under
Sect ions 120-B, 500, 501/34 I.P.C in C.C. No.679 of 2009 on
t he f ile of XI Addit ional Chief M et ropolit an M agist rat e,
Secunderabad along w it h anot her. The pet it ioner/A-2 is
Google India Privat e Limit ed represent ed by it s M anaging
Direct or (Sales an d Op erat ion s). Th e 1st respo n d en t /
complainant is Visaka Indust ries Limit ed, Secunderabad
represent ed by it s aut horised signat ory w ho is it s Deput y
108 Cy b er Cr i m e - Law an d Pr act i ce

M anager- Legal. The complainant is engaged in business of


manuf act uring and selling of Asbest os cement sheet s and
allied products. It is alleged t hat A-1 viz., Gopala Krishna is a
Co-ordinat or " Ban Asbest os India" a group w hich is host ed
by A-2 and publishes regular art icles in t he said group and
that on 21.11.2008 an article was published in the said group
and it w as capt ioned as " poisoning t he syst em; Hindust an
Times" aiming at a single manufact urer of Asbestos cement
product s viz., t he complainant and names of renow ned
polit icians of t he count ry G.Venkat a Sw amy and Sonia
Gandhi w ho have not hing t o do w it h t he ow nership or
management of t he complainant -company w ere named in
t hat article. It is f urt her alleged t hat on 31.07.2008 anot her
art icle capt ioned as " Visaka Asbest os Indust ries making
g ain s" an d t h at b o t h t h e ab o ve ar t i cl es co n t ain ed
def amat ory st at ement s against t he complainant and t hey
are available in Cyber space in t he f orm of art icles f or
worldwide audience. In the complaint , details of defamatory
remarks made in several ot her art icles published by A-1 in
A-2 group are given in det ail, w hich det ails may not be
necessary for the purpose of disposal of this criminal petition.
It is cont ended by t he senior counsel appearing f or t he
pet itioner/A-2 that act ions of int ermediaries such as Google
Inc., w hich is a service provider providing plat f orm f or end
users t o upload cont ent , does not amount t o publicat ion in
law an d co n seq u en t ly t h e q u est io n o f h o ld in g su ch
int ermediaries liable f or def amat ion does not arise. Senior
Counsel appearing f or t he pet it ioner placed reliance on
Section 79 of the Information Technology Act, 2000 (in short,
t he Act ) in support of t his cont ent ion.
Sect ion 79 w hich occurs in Chapt er XII of t he Act originally
as it st ood enact ed in t he year 2000 reads as f ollow s:
Ch ap t er XII- Net w o r k Ser v i ce Pr o v i d er s No t To Be
Li ab l e In Cer t ai n Cases
Sec.79. Net w ork service providers not t o be liable in cert ain
cases: For t he removal of doubt s, it is hereby declared t hat
no perso n providin g any service as a net w ork service
provider shall be liable under t his Act , rules or regulat ions
Cy b er Cr i m e - Law an d Pr act i ce 109

made t hereunder f or any t hird part y inf ormat ion or dat a


made available by him if he proves t hat t he of f ence or
cont ravent ion w as commit t ed w it hout his know ledge or
t hat he had exercised all due diligence t o prevent t he
commission of such of f ence or cont ravent ion.
Explanation. For t he purposes of t his sect ion,
(1) " net w ork service provider" means an int ermediary;
(2) " t hird part y inf ormat ion" means any inf ormat ion dealt
w it h by a net w ork service provider in his capacit y as an
int ermediary."
The said provision exempt s net w ork service providers f rom
liabilit y under the Act , rules or regulations made there under
f or any t hird part y inf ormat ion or dat a made available by
him. It did not exempt a net w ork service provider f rom
liabilit y much less criminal liabilit y f or t he of f ences under
ot her laws or more particularly under t he Indian Penal Code.
Furt her, t he ab ove p rovision exempt s net w ork service
provider f rom liabilit y, only on proof t hat t he off ence or
cont ravent ion w as commit t ed w it hout his know ledge or
t hat he had exercised all due diligence t o prevent t he
commission of such of f ence or cont ravent ion. Proof in t hat
regard can be let in by w ay of leading evidence by t he
accused. Theref ore, t he said quest ion is a quest ion of f act
w hich t his Court may not go int o in t his petit ion filed under
Sect ion 482 Cr.P.C.
Chapt er XII of t he Act including Sect ion 79 w as amended
by t he Inf ormation Technology (Amendment ) Act, 2008 (10
of 2009) dat ed 05.02.2009 w it h ef f ect f rom 27.10.2009 by
w ay of subst it ut ing t he f ollow ing in t he place of original
chapt er:
7 9 . Ex e m p t i o n f r o m l i a b i l i t y o f i n t e r m ed i a r y i n
cer t ai n cases:
(1) Not w it hst anding anyt hing cont ained in any law f or t he
t ime being in f orce but subject t o t he provisions of sub-
sect ions (2) and (3), an int ermediary shall not be liable
f or any third part y inf ormat ion, dat a, or communicat ion
link made available or host ed by him.
110 Cy b er Cr i m e - Law an d Pr act i ce

(2) The provisions of sub-sect ion (1) shall apply if - (a) t he


f unct ions of t he int ermediary is limit ed t o providing
access t o a co m m u n i cat i o n syst em o ver w h i ch
informat ion made available by third parties is transmitted
or t emporarily st ored or host ed; or
(b) t he int ermediary does not -
(i) init iat e t he t ransmission,
(ii) select t he receiver of t he t ransmission, and
(iii) select or modif y t he inf ormat ion cont ained in t he
t ransmission;
(c) t h e in t ermed iary o b serves d u e d ilig ence w h ile
discharging his duties under this Act and also observes
such ot her guidelines as the Central Government may
prescribe in t his behalf .
(3) The provisions of Sub-Sect ion (1) shall not apply if -
(a) The int ermediary has conspired or abet t ed or aided
or induces whether by t hreats or promise or otherwise
in t he commission of t he unlaw f ul act ;
(b) u po n receiving act ual k n ow led g e, o r o n b ein g
not ified by inf ormat ion, dat a or communicat ion link
residing in or connect ed t o a comput er resource
cont rolled b y t he in t ermediary is b eing used t o
commit t he unlaw f ul act , t he int ermediary f ails t o
expeditiously remove or disable access to that material
on t hat resource w it hout vit iating t heevidence in any
manner.
Explanation.- For t he purposes of t his sect ion, t he
expression " t hird part y inf ormat ion" means any
information dealt with an intermediary in his capacity
as an int ermediary."
It is only under t he said amendment ; non-obst ent i clause
was incorporat ed in Sect ion 79 keeping applicat ion of other
law s out side t he purview in a f act sit uat ion covered by t he
said provision. Now, af ter the amendment , an int ermediary
like a net w ork service provider can claim exempt ion f rom
Cy b er Cr i m e - Law an d Pr act i ce 111

applicat ion of any ot her law in respect of any t hird part y


inf ormat ion, dat a or communicat ion link made available or
hosted by him; provided he sat isf ied the requirements under
Sub-sect ion (2) of Sect ion 79. Furt her, as per amended Sub-
sect ion (3) of Sect ion 79, t he exempt ion under Sub-sect ion
(1) cannot be applied by any Court and cannot be claimed
by any int ermediary in case t he int ermediary ent ered int o
any conspiracy in respect t hereof . Also, t he int ermediary
cannot claim exempt ion under Sub-section (1) in case he fails
t o exp ed i t i o u sl y r em o ve o r d i sab l e access t o t h e
object ionable mat erial or unlaw f ul act ivit y even af t er
receiving act ual know ledge t hereof . In the case on hand, in
spit e of t he 1st respondent issuing not ice bringing t he
pet it ioner about dissemination of defamatory material and
unlaw f ul activit y on the part of A-1 t hrough the medium of
A-2, t he pet itioner/A-2 did not move its lit tle finger t o block
t he said mat erial or t o st op disseminat ion of t he unlaw f ul
and object ionable mat erial. Theref ore, t he pet it ioner/A-2
cannot claim any exempt ion eit her under Sect ion 79 of t he
Act as it st ood originally or Sect ion 79 of t he Act af t er t he
amendment which t ook eff ect f rom 27.10.2009. The present
case in t he low er Court w as inst it ut ed in January, 2009
relat ing t o t he of f ences w hich are being perpet rat ed f rom
31.07.2009 onwards, i.e., since long prior t o the amendment
t o t he said provision.
There is no exempt ion of any criminal liability in respect of a
company w hich is a jurist ic person and w hich has no body
t hat can be damned or cont emned. In case f ound guilt y,
t he pet it ioner company can be aw arded w it h appropriat e
punishment t hough not corporal punishment . In t hat view
of t he mat t er, I f ind no merit in t his criminal pet it ion.
Accordingly, t he Criminal Pet it ion is dismissed.
12. M i cro so f t Co r p o r at i o n v s. Yo g esh Pap at 36
(In t he High Court of Delhi)
Fact s
This case concerns t he infringement of copyright in soft ware
and not ably t he int erpret at ion of Sect ions 51 and 55 of t he
112 Cy b er Cr i m e - Law an d Pr act i ce

Co pyrig ht Act , 1957. The M icro so f t Co rp o rat io n , t h e


reg ist ered p ro p r iet o r o f t h e t rad emark M ICROSOFT,
r eq u est ed a p er m an en t i n j u n ct i o n r est r ai n i n g t h e
def endant , it s direct ors and agent s f rom copying, selling,
of f ering f or sale, d ist ribut ing or issuing t o t he pub lic
count erf eit or unlicensed versions of M icrosof t 's sof t w are
program in any manner t hat amount s t o inf ringement of
M icrosof t 's copyright in t he comput er programs, relat ed
manuals and M icrosof t 's regist ered t rademarks. M icrosof t
also requested that the def endant be prevent ed f rom selling
and dist ribut ing any product t o w hich t he t rademark
M ICROSOFT or any variant s of t his t rademark have been
applied.

The def endant did not appear bef ore t he court , so t he


proceedings t ook place ex part e. The court event ually ruled
against t he def endant , w ho w as dow nloading M icrosof t
sof t w are ont o t he hard drives of comput ers t hat it t hen
so ld , w it h o u t a licen ce o r p ermissio n t o d o so f ro m
M icrosof t .

Ju d g em en t

The court approached each piece of evidence in t urn and,


based on t he assumption that 100 comput ers were sold each
year and on t he evidence of the sof t w are's popularit y, held
t hat M icrosof t had suf f ered a t ot al prof it loss of Rs. 1.98
million, plus int erest at 9% f rom the dat e of t he decree until
t he dat e of payment .

The court , quot ing an observat ion by Just ice Laddie in t he


High Court of England and Wales in M icrosoft Corporation
v. Elect row ide Lt d., h eld t hat t h e def end ant ' s act io ns
" const it ut ed a general t hreat t o inf ringe t he copyright in
t he class of sof t w are" . Just ice Predeep Nandrajog, w ho
presided in t his case, st at ed t hat :

" It st ands est ablished t hat t he def endant has inf ringed t he
plaintif f's copyright by making illicit copies of t he operat ing
syst ems sof t w are by openly copying w hat ever operat ing
syst em is current ly saleable."
Cy b er Cr i m e - Law an d Pr act i ce 113

13. A u t o d esk , In c. & A n o t h er v s. M r. Pr ash an t Desh m u k h


& Ot h er s37
(In t he High Court of Delhi)
Fact s
Aut odesk, Inc. (hereinaf t er “Plaint if f 1”) is a renow ned U.S.-
b ased d esig n so f t w are an d dig it al co nt en t comp any,
providing design sof t w are t o prof essionals, has several
aut horized resellers in India and also claims to be t he ow ner
of various t rademarks in India, including AUTODESK and
Aut oCAD. M icrosof t Corporation, (hereinaft er “Plaint if f 2”)
ow ns sof t w are such as M icrosof t Window s and M icrosof t
Off ice and is almost a household name regarding computer
peripherals. It also has a subsidiary company in New Delhi.
Th e p laint if f s claim t hat t he sof t w are developed and
market ed by t hem are comput er programs as per Sect ion
2(ff c) of the Copyright Act , 1957 and also covered as ‘literary
w ork’ as per Sect ion 2(o) of t he Copyright Act . M oreover,
t he right s of aut hors of member countries of t he Berne and
Universal Copyright Conventions are prot ected under Indian
Copyright laws since both India as well as U.S.A. are signatory
t o bot h t hese convent ions. Based on inf ormat ion regarding
larg e-scale use o f un licensed/pirat ed sof t w are by t he
def endant s, plaint if f s have alleged inf ringement of t heir
copyright and t rademark right s by t he def endant s.
Issu es r ai sed i n t h e case
Whet her t he def endant s are guilt y of having inf ringed t he
copyright and t rademark right associat ed w ith t he sof tw are
t hat belong t o t he plaint if f s?
Rem ed i es so u g h t b y p l ai n t i f f s
Injunct ion rest raining t he def endant s f rom inf ringing t he
plaint iff s’copyright and regist ered t rademarks, damages of
Rs.20 lakhs and rendit ion of account s and delivery up of
t he unlicensed/pirat ed sof t w are cont ained in hard disks,
compact disks, f loppies et c.
Decisi o n
The def endant s never t ried t o cont est t he suit by f iling a
114 Cy b er Cr i m e - Law an d Pr act i ce

writ ten statement. Evidence revealed that defendants 1 and


2 w ere not holding any license f rom Plaint if f 1, w hile
def endant 3 (M /s Space Designers Syndicat e) w as a licensed
user of Aut oCAD LT 2005. M r. Devesh J. Tiw ari, t he person
w ho had inf ormed t he plaint if f s of t he inf ringement , w as
an employee of M &S Consult ancy Services (one of t he
def endant s) as a comput er service engineer. He revealed in
t he court t hat his employer company did not possess any
legal licensed sof t w are and t hat his superiors w ere f ully
aw are of t he pirat ed sof t w are, including t he M icrosof t
Windows 95/98 Operat ing System; M icrosof t Of f ice 97/2000
and Aut o CAD Versions 12, 14 and 2000 et c. being used from
print ed CDs w it hin t he company. It w as also cont ended on
t he plaint iff ’s behalf t hat t he w ord M icrosof t has been
cont inuously and ext ensively used by Plaint if f 2 since long
and has come t o be ident if ied and recognized exclusively
w it h Plaint if f 2.

The person-in-charge of t he IT Depart ment of t he Legal


Represent at ives of the plaint if f companies also testified that
most ly all licenses used by commercial ent it ies regarding
plaint iff ’s product s can be used in perpet uit y and t hat a
software programme purchased by an ent ity anyt ime should
ref lect in t he dat a base of t he product purchase summary
maint ained by t he plaint iff companies. Needless t o say, t he
def endant s’ names w ere conspicuously absent f rom t hat
dat a base.

With regard to applicability of the Act to work f irst published


in any territory out side India such as U.S., t he court ref erred
t o Sect ion 40 of t he Act and also t o paragraphs 2 and 3 of
t he Int ernat ional Copyright Order, 1999 and held t he
p ro visio n s o f t h e A ct , esp ecially S. 51 (d ealin g w it h
inf ringement in t he absence of a license), t o be applicable
vis-à-vis t he right s associat ed w it h def endant s’product s in
this case. Moreover, as per S. 14 of the Act , the court believed
t hat by using pirat ed versions of t he sof t w are copyright ed
by t he plaint if f s, t he def endant s w ere cert ainly guilt y of
in f rin g emen t , b esid es h avin g also cau sed t rad emark
inf ringement .
Cy b er Cr i m e - Law an d Pr act i ce 115

Regarding t he issue of punitive damages in mat ters of piracy


and inf ringement , ref erence w as made t o precedent s such
as Time Incorporated vs. Lokesh Srivastava & Anr., 2005 (30)
PTC 3 (Del), Hero Honda M otors Ltd. vs. Shree Assuramji
Scooters, 2006 (32) PTC 117 (Del), M icrosoft Corporation vs.
Deepak Raval M IPR 2007 (1) 72, and Larsen and Toubro
Limited vs. Chagan Bhai Patel M IPR 2009 (1) 194, all of which
f avor t he aw arding of punit ive damages f or dissuading t he
infringers, even if t he infringers decide not to appear in t he
suit proceedings at all. It w as also argued t hat given t he
energy and resources spent by right-holders in inf ringement
lit igat ion, f ailure t o aw ard punit ive damages w ould only
f oment encouragement f or act ions such as inf ringement
and passing of f .
The court also voiced concerns about increasing inst ances
o f p i racy o f so f t w are o f rep u t ed co mp an ies su ch as
M icrosof t and Aut oCAD in t he count ry, w hich might cause
discouragement amongst the invest ors in t he development
of such sof t w are in t he lack of dw indling license f ees.
Furt hermore, t he use of pirat ed sof t w are f or commercial
rat her t han personal purposes should, according t o t he
court , be more heavily f row ned upon, and t heref ore t he
court aw arded t he plaint if f s t he permanent injunct ion
sought f or as also punit ive damages amounting t o Rs. 1 lakh
against Def endant No. 2.
14. Tr av el In d i a Ti m es v s. In d i a Ti m es Tr av el 38
(In t he High Court of Delhi)
The f act situat ion in t he Delhi High Court judgment in Times
Internet vs. M /s Belize Domian Whois Service Ltd. & Others
is a inst ance of cyber squat t ing. The judgment reaf f irms t he
domain name-t rademark / passing of f principle. Cont rary
t o okt at abyebye.com disput e w here WIPO ruled in f avour
o f Tat a so n s r eq u ir in g Gu rg ao n -b ased t ravel p o rt al
M akeM yTrip t o t ransf er t he domain okt at abyebye.com t o
Tat a, passing off in t he inst ant case is evident .
Fact s
Indiat imes.com is an e-commerce port al ow ned by t he
116 Cy b er Cr i m e - Law an d Pr act i ce

plaint iff company, Times Int ernet . Since 2000, t he w ebsit e


of f ers a w ide range of services including t ravel services
t hrough t ravel.indiat imes.com. The def endant , M /s Belize
Do m ai n W h o i s Ser vi ce Lt d . & Ot h er s r eg i st er ed
Indiat imestravel.com in 2005. It carries some sponsored links.
Arguing t hat “indiat imest ravel.com” is decept ively similar
t o t hat of plat int if f ' s regist ered domain name " t ravel.
indiat imes.com" , plaintiff submit ted that the def endant w as
t rying t o t ake advant age of it s brand name. The plaint if f ,
cit ing revenue f igures, submit t ed t hat it s w ebsit e enjoys
reput ation and signifies the services and product s marketed
t hrough t he w ebsit e. The plaint if f sought f or an injunct ion
rest raining t he def endant s f rom cyber squat t ing, using any
other ident ical or deceptively similar name and t ransf erring
t he domain name “indiat imest ravel.com” t o t he plaint if f .
Ju d g m en t
The Court ref erred t o t he Supreme Court judgment in
Satyam Infow ay Ltd. vs. Sifynet Solutions Pvt. Ltd. w hich
had a similar fact situation. In the instant case, Supreme Court
observed that “a domain name .......is chosen as an instrument
of commercial ent erprise not only because it f acilit at es t he
ability of consumers to navigat e the Internet to find websites
t hey are looking f or, but also at t he same t ime, serves t o
ident if y and dist inguish t he business it self , or it s goods or
services, and t o specif y it s corresponding online Int ernet
locat ion. Consequent ly a domain name as an address must ,
of necessit y, be peculiar and unique and w here a domain
name is used in connect ion w it h a business, t he value of
main t ain i n g an excl u sive i d en t it y b eco mes crit ical .”
Comparing bot h t he domain name and t he t rademark,
Supreme Court held t hat a domain name can have all t he
charact erist ics of a t rademark. Accordingly, domain names
can be prot ect ed under Trademarks Act , 1999.
In the inst ant case, the High Court observed that the plaint iff
o w n ed t h e m ark “i n d i at im es.co m ” w ay b ef o r e t h e
d ef end an t creat ed t h e mark “in d iat imest ravel.co m”.
Furt her, “indiat imes” w hich w as t he essent ial component
of t he domain name, w as used by t he def endant w it hout
Cy b er Cr i m e - Law an d Pr act i ce 117

any explanat ion. This can conf use an ordinary net izen and
can result in associat ing def endant 's port al w it h t hat of t he
plaint iff company. The use of impugned w eb port al by t he
defendant may also jeopardise the reputation of the plaintiff
if t he product s and services w hich are advert ised t hrough
t he w ebsit e lack qualit y. Furt her, as t he def endant did not
appear bef ore t he Court and cont est t he claims of t he
plaint if f , def endant 's conduct w as held t o be in mala f ide.
Considering t he above ment ioned aspect s, t he inst ant
disput e w as held t o be a clear case of “passing of f ”. As t he
plaint if f w as held t o have t he sole right t o use t he w ords
“i n d i at i m es”, d ef en d an t w as d i r ect ed t o t r an sf er
“indiat imest ravel.com” t o plaint iff .
15. Cu b b y, In c v s. Co m p u Ser v e, In c.40
Where CompuServe is an online company providing access
t o over 150 special int erest f orums comprised of elect ronic
bulletin boards, int eract ive online conf erences, and topical
d at ab ases. A n ew slet t er called Ru mo rville w as mad e
avai lab l e vi a t h e b u ll et in b o ard . Th e p l ai n t if f su ed
CompuServe for libel af ter allegedly defamatory statement s
were disseminat ed t hrough the newslet ter against it. Cubby
argued t hat t he court should consider CompuServe t o be a
" publisher" of t he allegedly def amat ory st at ement s, and
t hus hold it liable f or t he st at ement .
The court held t hat CompuServe had " no more edit orial
cont rol over such a publicat ion t han does a public library,
b o o k st o re, o r n ew sst an d " . Th e co u r t i n st ead f o u n d
CompuServe t o be more akin t o a " dist ribut or" rather t han
a " pu b lisher" . Th u s, becau se it w as u n d isp u t ed t h at
CompuServe did not have know ledge of or reason t o know
o f t he alleg edly d ef amat o ry st at ement s made in t h e
p u b l i cat i o n , esp eci al l y g i ven t h e l ar g e n u m b er o f
publications it carries and the speed wit h w hich publicat ions
are uploaded int o it s comput er banks and made available
t o CompuServe subscribers, the court held that CompuServe
could not be held liable t o Cubby f or t he def amat ory
stat ement s. The court not ed that t o impose on CompuServe
t h e d u t y t o examin e every p u b l icat io n i t carries f o r
118 Cy b er Cr i m e - Law an d Pr act i ce

def amat ory st at ement s w ould " impose an undue burden


on t he f ree f low of inf ormat ion" .
16. St at e Ban k o f In d i a v s. Ri zv i Ex p o r t s Lt d .41
(In The Debt Recovery Appellat e Tribunal, Allahabad)
St at e Bank of India (SBI) (Appellant s) had f iled a case t o
recover money f rom some persons w ho had t aken various
loans f rom it Respondent : Rizvi Export s Lt d. As part of t he
evidence, SBI submit t ed printout s of st at ement of account s
maint ained in SBI's comput er syst ems.
The relevant cert if icates as mandated by the Bankers Books
of Evidence Act (as amended by Inf ormat ion Technology
Act ) had not been at t ached t o t hese print out s.
The Court held t hat t hese document s w ere not admissible
as evidence Decided On: 01.10.2002
17. Gr o f f v s. A m er i ca On l i n e, In c. 42
Fact s
The plaint if f , an individual in Rhode Island w ho subscribed
t o America Online, sued t he company in Rhode Island st at e
court , alleging violat ions of st at e consumer prot ect ion
legislat ion. The process of becoming a member of AOL
includes a st ep in w hich t he applicant must assent t o AOL's
t erms of service by clicking an " I Agree" but t on. The t erms
of service " contains a forum-selection clause which expressly
provides t hat virginia law and Virginia court s are t he
appropriat e law and f orum f or t he lit igat ion bet w een
members and AOL." AOL moved t o dismiss t his suit f rom
t he Rhode Osland Superior Court f or improper venue on
t he ground t hat a f orum select ion clause in t he part ies'
cont ract mandat ed t hat t he suit be brought in virginia,
w here AOL's base of operat ions w as locat ed. The court
agreed, and dismissed t he suit .
Ju d g em en t
The court held t hat t he plaint iff assent ed t o AOL’s t erms of
service online by t he click of an " I agree" but t on. The terms
of service included a clause mandat ing t hat suit s concerning
Cy b er Cr i m e - Law an d Pr act i ce 119

t he service be brought in Virginia. AOL cust omers must first


click on an " I agree" but t on indicat ing assent t o be bound
by AOL's t erms of service bef ore t hey can use t he service.
This but t on f irst appears on a w eb page in w hich t he user is
off ered a choice eit her t o read, or simply agree to be bound
by, AOL's t erms of service. It also appears at t he f oot of t he
t erms of service, w here t he user is of f ered t he choice of
clicking either an " I agree" or " I disagree" but ton, by which
he accept s or reject s the terms of service. The court held t hat
a valid cont ract exist ed, even if the plaint if f did not know of
t he f orum select ion clause: " our Court st at ed t he general
rule t hat a part y w ho signs an inst rument manif est s his
assent t o it and cannot lat er complain t hat he did not read
t he inst rument or t hat he did not underst and it s cont ent s.
Here, plain t if f ef f ect ively " sign ed" t h e agreement by
click i n g . " I ag r ee" n o t o n ce b u t t w i ce. Un d er t h ese
circumst ances, he should not be heard t o complain t hat he
did not see, read, et c. and is bound t o t he t erms of his
agreement ."
18. Di eb o l d Sy st em s Pv t Lt d . v s. Th e Co m m i ssi o n er o f
Co m m erci al Tax es43
(Sect ion 2 of Inf ormat ion Technology Act , 2000)
Fact s
Diebold Syst ems Pvt . Lt d. Appellant s manuf act ures and
supplies Aut omated Teller M achines (ATM ). Diebold sought
a clarif icat ion f rom t he Advance Ruling Aut horit y (ARA) in
Karnataka on the rate of tax applicable under the Karnat aka
Sales Tax Act , 1957 on sale of Aut omat ed Teller M achines.
The majorit y view of t he ARA w as t o classif y ATM s as
" comput er t erminals" liable for 4% basic t ax as t hey w ould
f all under Ent ry 20(ii)(b) of Part 'C' of Second Schedule t o
t he Karnat aka Sales Tax Act .
The Chairman of t he ARA dissent ed f rom t he majority view.
In his opinion, ATM s w ould f it int o t he descript ion of
elect ronic goods, part s and accessories t hereof . They w ould
t hus at t ract basic rat e of t ax of 12% and w ould f all under
Ent ry 4 of Part 'E' of t he Second Schedule t o t he KST Act .
120 Cy b er Cr i m e - Law an d Pr act i ce

The Commissioner of Commercial Taxes was of t he view that


t he ARA ruling w as erroneous and passed an order t hat
ATM s cannot be classif ied as comput er t erminals. Findings
of t he court :
1. Th e en l ar g ed d ef i n i t i o n o f " co m p u t er s" i n t h e
Inf ormat ion Technology Act cannot be made use of
int erpret ing an Ent ry under f iscal legislat ion.
2. An Aut omat ic Teller M achine is an elect ronic device,
w h i ch al l o w s a b an k ' s cu st o m er t o m ak e cash
w it hdraw als, and check t heir account balances at any
t ime w it hout t he need of human t eller.
3. ATM is not a comput er by it self and it is connect ed t o a
comput er t hat perf orms t he t asks request ed by t he
p erso n u si n g ATM ' s. Th e co m p u t er i s co n n ect ed
elect ronically t o many ATM 's t hat may be locat ed f rom
some dist ance f rom t he comput er.
Decisi o n
ATM s are not comput ers, but are elect ronic devices under
t he Karnat aka Sales Tax Act , 1957.
19. M an i sh Kat h u r i a v s. St at e 44
The f irst report ed case of cyber-st alking in India and t he
reason f or t he 2008 amendment t o t he IT Act ,5 t he M anish
Kat huria case involved t he st alking of a woman named Rit u
Kohli. Kat huria f ollow ed Kohli on a chat w ebsit e, abused
her by using obscene language and t hen disseminat ed her
t elephone number t o various people.
Lat er, he began using Kohli’s identity to chat on the w ebsit e
“w w w.mirc.com”. As a result she st art ed receiving almost
f orty obscene t elephone calls at odd hours of t he night over
t hree consecut ive days. This sit uat ion f orced her t o report
t he mat t er to the Delhi Police. As soon as t he complaint was
made, Delhi Police t raced t he IP addresses and arrest ed
Kat huria under Sect ion 509 of t he Indian Penal Code. The
IT Act w as not invoked in t he case, since it had not come
int o f orce at t he t ime w hen t he complaint w as f iled.
While t here is no record of any subsequent proceeding, t his
Cy b er Cr i m e - Law an d Pr act i ce 121

case made Indian legislat ors w ake up t o t he need f or a


legislat ion t o address cyber-st alking. Even t hen, it w as only
in 2008 t hat Sect ion 66-A w as int roduced. As a result , now
cases are being report ed under t his sect ion as opposed t o
Sect ion 509 of the Indian Penal Code, as w as t he case w here
a Delhi University student w as arrested f or stalking a woman
f rom Goa by creat ing f ake prof iles on social net w orking
w ebsit es, uploading pict ures on t hem and declared her t o
be his wife. It is hoped t hat the decision in t his w ould f avour
t he vict im.
In t he case commonly know n as Rit u Kohli Case is India's
f irst case of cyber st alking. It w as indeed an import ant
revelat ion int o t he mind of t he Indian cyber st alker. A young
Indian girl being cyber stalked by a f ormer colleague of her
husband t ook a legal call against such st alking. Rit u Kohli's
case t ook t he imaginat ion of India by st orm. The case w hich
got cracked how ever predat ed t he passing of t he Indian
Cyber law and hence it w as just regist ered as a minor
of f ences under t he Indian Penal Code.
20. St at e o f M ah ar ash t r a v s. A n an d A sh o k Kh ar e 45
This case related to t he act ivit ies of t he 23-year-old Telecom
engineer Anand Ashok Khare f rom M umbai w ho posed as
t he f amous hacker Dr Neuker and made several at t empt s
t o hack t he M umbai police Cyber Cell w ebsit e.
21. Fi r o s v s. St at e o f Ker al a 46
Fact s
The Government of Kerala issued a not if icat ion u/s 70 of
t he Inf ormat ion Technology Act declaring t he FRIENDS
applicat ion sof t w are as a prot ect ed syst em.
The aut hor of t he applicat ion sof t w are f iled a pet it ion in
t h e High Cou rt again st t he said no t if icat ion . He also
challenged t he constit utional validit y of section 70 of t he IT
Act .
The Court upheld t he validit y of bot h, sect ion 70 of t he IT
Act , as w ell as t h e n o t if icat io n issu ed b y t h e Kerala
Government .
122 Cy b er Cr i m e - Law an d Pr act i ce

Decisi o n
There is no conflict betw een t he provisions of Copyright Act
and Sect ion 70 of IT Act .
Sect ion 70 of t he IT Act is not unconst it ut ional.
While int erpret ing sect ion 70 of t he IT Act , a harmonious
const ruct ion w it h Copyright Act is needed.
Sect ion 70 of t he IT Act is not against but subject t o t he
provisions of t he Copyright Act .
Government cannot unilat erally declare any syst em as
" prot ect ed" ot her t han " Government w ork" f alling under
sect ion 2(k) of t he Copyright Act on w hich Govt .'s copyright
is recognized under Sect ion 17(d) of t he said Act .
22. St at e o f Tam i l n ad u v s. Dr L. Pr ak ash 47
Su m m ar y o f t h e case
St at e of Tamilnadu v/s Dr L. Prakash w as t he landmark case
in w hich Dr L. Prakash w as sent enced t o lif e imprisonment
in a case pert aining t o online obscenit y. This case w as also
landmark in a variet y of w ays since it demonst rat ed t he
resolve of t he law enf orcement and t he judiciary not t o let
of f t he hook one of t he very educat ed and sophist icat ed
professionals of India.
23. Ben u su san Rest au r an t Co r p . v s. Ki n g 48
Fact s
Where a New York jazz club operat or sued a M issouri club
owner claiming trademark infringement, dilution and unf air
compet ition over t he use of t he name " The Blue Not e" . The
def endant maint ained a w eb sit e promot ing his M issouri
" Blue Not e" club and providing a M issouri t elephone
n u mb er t h ro u g h w h ich t ick et s t o t h e clu b co u l d b e
purchased.
The issue, as f ramed by t he Federal Dist rict Court , w as
w het her t he exist ence of t he w eb sit e, w it hout more, w as
suf f icient t o vest t he court w it h personal jurisdict ion over
t he def endant under New York's long-arm st at ut e.
Cy b er Cr i m e - Law an d Pr act i ce 123

The court held t hat it did not . The court considered w hether
t he exist ence of t he w eb sit e and t elephone ordering
inf ormat ion const it ut ed an " of f er t o sell" t he allegedly
infringing " product" in New York, and concluded it was not.
The court not ed t hat , alt hough t he w eb sit e is available t o
any n ew Yo rk er w it h Int ernet access, it t ak es several
af f irmat ion st eps t o obt ain access t o t his part icular sit e, t o
ut ilize t he inf ormat ion cont ained t here, and t o obt ain a
t icket t o t he def endant 's club.
24. A sh cr o f t , A t t o r n ey Gen er a l et al v s. Fr ee Sp eech
Co al i t i o n , et al .49
Fact s
The US Supreme Court af f irmed t he judgment of t he Court
of Appeals f or t he Nint h Circuit t hat t he prohibit ions of
Ss.2256 (8) (B) an d 2256(8) (D) ar e o ver b o ar d an d
unconst it ut ional. Being part of t he Child Pornography
Prevent ion Act of 1996 (CPPA) S. 2256 (8) (B) bans a range
of sexually explicit images, somet imes called " virt ual child
pornography," t hat appear t o depict minors but w ere
produced by means ot her t han using real children, such as
t hrough t he use of yout hf ul-looking adult s or comput er-
imaging technology and S.2256(8)(D) is aimed at preventing
t he product ion or dist ribut ion of pornographic mat erial
pandered as child pornography.
Justice Kennedy opined:
" Congress may pass valid law s to protect children from
abuse, and it has. The prospect of crime. how ever, by itself
does not justify law s suppressing protected speech..."
As a gen eral principle, t he First Amend ment bars t he
government f rom dict at ing w hat see or read or speak or
hear. The f reedom of speech has it s limit s; it does not
embrace certain categories of speech, including defamation,
incit ement , obscenity, and pornography produced w ith real
children.
The Government submit s " t hat virt ual child pornography
w het s t he appet it es of pedophiles and encourages t hem t o
124 Cy b er Cr i m e - Law an d Pr act i ce

engage in illegal conduct . This rat ionale cannot sust ain t he


provision in quest ion. The mere t endency of speech t o
encourage unlaw f ul act s is not a suf f icient reason f or
bann in g it . Th e go vern ment " cann ot con st it ut io nally
premise legislat ion on t he desirabilit y of cont rolling a
person's privat e t hought s." First Amendment f reedom are
most in danger w hen t he government seeks t o cont rol
t hought or t o just ify it s laws f or that impermissible end. The
right to think is t he beginning of f reedom, and speech must
be prot ect ed f rom t he government because speech is t he
beginning of t hought ." (Decided on April 16, 2002).
25. St at e v s. A m i t Pr asad 50

State vs. Amit Prasad , w as India' s f irst case of hacking


regist ered under Sect ion 66 of t he Inf ormat ion Technology
Act , 2000. A case w it h unique f act s, t his case demonst rat ed
how t he pro visions of t he In dian Cyb er law could be
int erpret ed in any manner, depending on which side of t he
of f ence you w ere on.
26. R v s. Gr ah am Wad d o n 51

Fact s
The def endant w as charged w it h numerous count s of
publishing obscene art icles cont rary t o S. 2(1) of UK' s
Obscene Publicat ions Act 1959. The def endant had creat ed
pornographic images, w hich w ere illegal under t he UK's
Obscene Publicat ions Act . He ran a series of sit es based in
the US, hosting them on a USbased Internet service provider.
These images w ere accessible t o anyone in t he w orld via
t he Int ernet w ho became a subscriber by giving credit card
det ails. He w as charging UK cust omers 25 pounds a mont h
f or access. The subscriber w as given a passw ord and could
log ont o t he various w ebsit es t o obt ain t he images. It w as
submit t ed on behalf of t he def endant t hat , because t he
In t ernet pub licat ion h ad necessarily o ccu rred ab road,
t heref ore t he inst ant court did not have jurisdict ion.
Hardy Christ opher, J. held:
" Publishing an art icle under S. 1(3) (b) of t he 1959 Act
Cy b er Cr i m e - Law an d Pr act i ce 125

included dat a st ored elect ronically and t ransmit t ed. To


t ransmit simply meant t o send f rom one place or person t o
anot her. In the inst ant case, an act of publicat ion t ook place
w hen t he dat a w as t ransmit t ed by t he def endant or his
ag ent t o t he service pro vid er, and t h e p ublicat ion or
t ransmission w as in ef f ect st ill t aking place w hen t he dat a
w as received. bot h t he sending and receiving t ook place
w it hin t he jurisdiction of t he court and it was irrelevant t hat
t he t ransmission may have lef t t he jurisdict ion in bet w een
t he sending and receiving" .
27. Th e A r zi k a case 51
Pornography and obscene elect ronic cont ent has cont inued
to engage the attention of the Indian mind. Cases pertaining
to online obscenit y, alt hough report ed in media, oft en have
not been regist ered. The Arzika case w as t he f irst in t his
regard.
28. A i r Fo rce Bal Bh ar t i Sch o o l & A n r. v s. Del h i Sch o o l
Tr i b u n al & Or s.52
The Air Force Bal Bhart i School case demonst rat ed how
Sect ion 67 of t he Inf ormat ion Technology Act , 2000 could
be applicable for obscene content creat ed by a school going
boy.
A 16-year-old boy w as arrest ed in April 2001 on t he charge
of creat ing a pornographic w ebsit e cont aining obscene
comment s about some w omen t eachers and girls of his
school, Air Force Bal Bharat i in Delhi. When he was released
on bail, t he school ref used t o t ake him back.
29. Sr i Pr ab h ak ar Si n g h v s. Un i o n o f In d i a 53
P.R. Transport Agency t hrough it s part ner Sri Prabhakar
Singh Vs. Union of India (UOI) t hrough Secret ary, M inist ry
of Coal, Bharat Coking Coal Lt d. through it s Chairman, Chief
Sales Manager Road Sales, Bharat Coking Coal Ltd. and Metal
and Scrap Trading Corporat ion Lt d. (M STC Lt d.) t hrough it s
Chairman cum M anaging Director., Writ Pet it ion No. 58468
of 2005.
126 Cy b er Cr i m e - Law an d Pr act i ce

Hi st o r y o f t h e case
Bharat Coking Coal Lt d. (BCC) held an e-auct ion f or coal in
diff erent lot s.
P.R. Transport Agency's (PRTA) bid w as accept ed f or 4000
met ric t ons of coal f rom Dobari Colliery.
The accept ance let t er w as issued on 19t h July, 2005 by e-
mail t o PRTA's e-mail address. Act ing upon t his accept ance,
PRTA deposit ed t he f ull amount of Rs. 81.12 lakh t hrough a
cheque in f avour of BCC. This cheque w as accept ed and
encashed by BCC.
BCC did not deliver t he coal t o PRTA. Inst ead it e-mailed
PRTA saying t hat t he sale as w ell as t he e-auct ion in f avour
o f PRTA st o od can celled " d ue t o some t ech nical an d
unavoidable reasons" .
The only reason for this cancellation was t hat there was some
ot her person w hose bid f or the same coal w as slightly higher
t han t hat of PRTA. Due t o some f law in t he comput er or it s
programmed or f eeding of data t he higher bid had not been
considered earlier.
This communicat ion w as challenged by PRTA in t he High
Court of Allahabad. [Not e: Allahabad is t he st at e of Ut t ar
Pradesh (UP)]
BCC object ed t o t he " t errit orial jurisdict ion" of t he Court
on the grounds that no part of the cause of act ion had arisen
w it hin U.P.
Issu e r ai sed b y BCC
The High Court at Allahabad (in U.P.) had no jurisdict ion as
no part of t he cause of act ion had arisen w it hin U.P.
Issu es r ai sed b y PRTA
1. The communicat ion of the acceptance of t he t ender was
received by t he pet it ioner by e-mail at Chandauli (U.P.).
Hence t he cont ract (f rom w hich t he disput e arose) w as
complet ed at Chandauli (U.P). The complet ion of t he
cont ract is a part of t he " cause of act ion'.
Cy b er Cr i m e - Law an d Pr act i ce 127

2. The place w here t he cont ract w as complet ed by receipt


of communicat ion of accept ance is a place w here 'part
of cause of act ion' arises.
Ob ser v at i o n b y t h e co u r t :
1. In ref erence t o cont ract s made by t elephone, t elex or
f ax, t he co nt ract is complet e w hen an d w here t he
acceptance is received. How ever, t his principle can apply
only w here t he t ransmit t ing t erminal and t he receiving
t erminal are at f ixed point s.
2. In case of e-mail, t he dat a (in t his case accept ance) can
be t ransmit t ed f rom anyw here by t he e-mail account
holder. It goes to t he memory of a 'server' w hich may be
locat ed anywhere and can be retrieved by the addressee
account holder f rom anyw here in t he w orld. Theref ore,
there is no fixed point eit her of t ransmission or of receipt.
3. Sect ion 13(3) of t he Inf ormat ion Technology Act has
covered t his dif f icu lt y of " no f ixed point eit her of
t ransmission or of receipt " . According t o t his sect ion
" ...an elect ronic record is deemed t o be received at t he
place w here t he addressee has his place of business."
4. The accept ance of t he t ender w ill be deemed t o be
received by PRTA at t he places w here it has place of
business. In t his case it is Varanasi and Chandauli (bot h
in U.P.)
Decisi o n
1. The accept ance w as received by PRTA at Chandauli /
Varanasi. The cont ract became complet e by receipt of
such accept ance.
2. Bot h these places are within the t erritorial jurisdiction of
t he High Court of Allahabad. Theref ore, a part of t he
cause of act ion has arisen in U.P. and t he court has
t erritorial jurisdiction.
30. Wash i n g t o n Po st v s. To t al New s 55

Hi st o r y o f t h e case:
W h er e t h e " t o t al n ew s.co m " w eb si t e u sed f r am i n g
128 Cy b er Cr i m e - Law an d Pr act i ce

t echnology t o set a new s st ory f rom ot her w ebsit e w it hin


t h e o ver al l To t al New s f r am e b y b l o ck i n g b an n er
advert isement s and ot her dist inguishing f eat ures.
The U.S. Dist rict Court Sout hern District of New York passed
an order of set t lement st at ing t hat " t he def endant s agree
permanent ly t o cease t he pract ice of f raming plaint if f 's
w ebsit es" . Plaint if f s agree t hat Def endant s may link f rom
t he Tot alnew a.com w ebsit e or any ot her w ebsit e t o nay
plaint iff 's websit e, provided t hat :
(1) Def endant s may link t o plaint if f ' s w ebsit e only via
hyperlinks consist ing of t he names of t he linked sit es in
plain t ext , w hich may be highlight ed;
(2) Def endant s may not use on any w ebsit e, as hyperlinks
or in any ot her w ay, any of plaint iff 's propriet ary logos
or other distinct ive graphics, video or audio material, nor
may defendants otherwise link in any manner reasonably
likely t o : (i) imply af f iliat ion w it h, endorsement or
sponsorship by any plaint if f; (ii) cause conf usion, mistake
or deception; (iii) dilute Plaint iff's marks; or (iv) otherwise
violat e st at e or f ederal law ;
(3) Each p l ai n t i f f ' s ag r eem en t t o p er m i t l i n k i n g b y
def endant s remains revocable, on 15 business days
not ice, at each Plaint if f 's sole discret ion. Revocat ion by
any plain t if f shall n ot af f ect an y o t h er t erms an d
condit ions set f ort h herein. If defendants ref use t o cease
linking upon not ice, and any plaint if f brings an act ion
t o enf orce it s right s under t his subparagraph, it shall be
an aff irmative defense that defendants conduct does not
ot herw ise inf ringe or violat e plaint if f s right s under any
t heory of any int ellect ual propert y, unf air compet it ion
or ot her law.

***
Cy b er Cr i m e - Law an d Pr act i ce 129

Chapt er 6

Cy b er Law s – Recen t Tr en d s

Cyber Law of India: The Inf ormat ion Technology Act , 2000 (IT
Act 2000) st ill governs t he cyber law of India and relat ed issues. IT
Act , 2000 has become an redundant and draconian law t hat needs
t o be repealed. The t elegraph and cyber law of India remained
out dat ed, colonial and draconian in t he year 2014 as w ell.
India must ensure t echno legal measures t o regulat e Indian
cyberspace. Similarly, regulat ions and guidelines f or ef f ect ive
invest igat ion of cyber crimes in India is also need of t he hour. The
Indian Government has assured in t he year 2014 t hat t he IT Act ,
2000 could be amended t o accommodat e e-commerce concerns.
The t echnological development has given rise t o a cyber world
const it ut ing cyber space. Cyber space is w it nessing considerable
ad van cem en t w it h t h e rap i d i n cr ease in t h e i n f o r m at io n
t echnology.
It is alw ays hard to det ermine or predict something in t he future
in an accurat e manner.
There is a possibility to consolidate the technological advancements
in t he past . The int ernet users are increasing t remendously every
year and at the same time there is also rise in t he number of people
using mobiles and smart phones.
The cyber law t rends and development s of India are as f ollows:
1. Cyber Crimes Prevent ion St rat egy : Cyber crimes h ave
signif icant ly increased in India in last f ew years. React ing t o
the same, Indian Government had now decided to formulate
a cyber crimes prevent ion st rat egy f or India. How ever, t ill
dat e, t he proposed st rat egy has not been f ormulat ed.
2. Cyber Crimes Investigation Training : Wit h increased cyber
crimes in India, a need w as f elt t o provide cyber crimes
129
130 Cy b er Cr i m e - Law an d Pr act i ce

invest igat ion t raining to law enforcement agencies of India.


In d i a n eed s t o en h an ce cyb er cr i m es i n vest i g at i o n
capabilit ies so t hat cyber crimes can be ef f ect ively t ackled.
Similarly, modernisat ion of police f orce of India is urgent ly
n eed ed w it h a special f o cu s u po n t ech n o leg al sk ills
development f or t hem.
3. Encrypt ion Law s : Almost six years back t he St anding
Commit tee on Inf ormat ion Technology pulled Depart ment
of Telecommunicat ion (DOT) over encrypt ion issues. The
encrypt ion law s and regulat ions in India need clarit y. Legal
risks f or w ebsit es development companies in India w ould
also increase due t o improper use of encrypt ion f or such
w ebsit es. A dedicated encrypt ion policy of India and t echno
legal encrypt ion law in India is need of t he hour.
4. Bank ATM s Compromised : Recent ly, on Oct ober 20, 2016, it
was report ed that around 3.2 million debit cards of the bank
consumers w ere compromised. Among many, SBI, HDFC
Bank, ICICI, YES Bank and Axis Bank w ere w orst at hit. Banks
in India w ill eit her replace or ask users t o change securit y
codes f or more t han 3.2 million debit cards.

Reproduced from The Economic Times


5. Corporate Scam Investigations : Alt hough t he Companies
Act , 2013 has been f ormulat ed t o curb corporat e f rauds yet
a dedicat ed fraudulent MLM regulat ions is need of the hour.
The powers of Serious Fraud Investigat ion Off ice (SFIO) were
also enh an ced so t hat t hey can ef f ect ively d eal w it h
corporat e f rauds and crimes in India. SEBI has also not if ied
Cy b er Cr i m e - Law an d Pr act i ce 131

t he Securit ies and Exchange Board of India (Procedure f or


Search and Seizure) Regulat ions, 2014.
6. Cyber Insurance: Cyber insurance in India became a realit y
in t he year 2014 and many companies and individuals have
st art ed t aking cyber insurance policies in India. How ever,
t he business of cyber insurance w ould raise many novel
t echno legal issues in t his regard t hat all st akeholders must
be w ell prepared t o deal w it h.
7. Cloud Computing : The cloud computing legal issues in India
are still not clear and t his has result ed in limit ed adoption of
cloud comput ing in India. The cloud comput ing legal and
reg u lat o ry req u iremen t s in In d ia f o r b u sin esses an d
entrepreneurs must be analysed in advance before launching
a project . Cloud comput ing service providers in India are
Int ernet int ermediary w it hin t he meaning of IT Act , 2000
and t hey are also required t o comply w it h cyber law due
diligence requirement s.
8. E-M ail Policy : The e-mail policy of India has st ill not been
implement ed despit e st rict w arnings by Delhi High Court .
So bad is t he sit uation t hat the Delhi High Court has accused
central government of sitting over e-mail policy of India. The
Delhi High Court has also direct ed Cent ral Government t o
issue not if icat ion regarding elect ronic signat ure under
Inf ormat ion Technology Act 2000. The encrypt ion policy of
India is also missing t ill dat e t hough it is need of t he hour.
How ever, Madhya Pradesh has given legal recognit ion t o e-
mail communicat ions among Government Depart ment s.
9. Online Payments : Online and mobile payment s w it nessed
an increase in India in last decade. How ever, legal and
regulat ory issues w ere not t aken seriously by various mobile
payment providers in India. There are many legal issues of
e-commerce in India t hat various online payment service
providers of India must comply wit h. It has already specif ied
t he cyber law due diligence requirement s f or Paypal and
online payment t ransf erors in India. Similarly, w e have also
o u t l in ed t h e e-co mm er ce an d o n li n e b u si n ess l eg al
compliances f or online payment market of India. Furt her,
payment gat ew ay and POS t erminal services providers must
132 Cy b er Cr i m e - Law an d Pr act i ce

also keep in mind t he cyber law due diligence requirement s


in India.
10. Online Gambling in India : Online gambling laws in India have
remained in a st ate of suspension. Online gambling in India is
st ill punishable in almost all of the cases with f ew selective
except ions. The matt er is pending before the Supreme Court
of India and it has referred t he mat ter for the opinion of
Cent ral Government . However, t he Central Government has
not given a conclusive opinion on this issue so far.
11. Websites Blocking in India : Websit es blocking in India w as
anot her development t hat result ed in many protests as w ell.
For inst ance, Tamil w ebsit e Savukku w as ordered t o be
blocked by M adras High Court . How ever, immediat ely af ter
t he blocking of t he Savukku w ebsit e, it became available
t hrough proxy servers making t he blocking redundant . In
t he year 2013, t he Indian Government blocked 39 Int ernet
sites on ground of pornography. The Supreme Court of India
also sought t he response of Indian Government in t his
regard in 2013. How ever, Indian Int ernet Service Providers
(ISPs) t old t h e Su preme Co urt t hat t hey cannot blo ck
pornographic w ebsit es unilat erally and voluntarily.
12. Bit coins : The legalit y of bit coins in India w as a major
quest ioning t he year 2014. The Enf orcement Direct orat e
(ED) searched and raided f ew Bit coin exchanges t o see
whether they w ere violat ing Indian laws or not . ED believed
t hat Bit coins can be used f or criminal act ivit ies including
money laundering, haw ala t ransact ions and f unding of
t errorist act ivit ies. In dian Laxmicoin h ad even so ug ht
clarif icat ions f rom regulat ory aut horit ies of India before it s
launch. Cyber at tacks also targeted Bitcoin users and Bitcoin
Exchanges in t he year 2014. According t o some report s,
Bit coin w ebsit e M t . Gox’s disappeared due t o sophist icat ed
cyber attacks and stealing of Bit coins. RBI informed that they
cannot regulat e Bit coins.
13. M o bile App licat ion s : M ob ile ap p licat ion s also saw a
t remendous increase in India in t he recent years. How ever,
most of t he mobile applicat ion developers are violat ing
Indian Law s and may be prosecut ed in f ut ure.
Cy b er Cr i m e - Law an d Pr act i ce 133

14. Cyb er Law Du e Dilig en ce : Cyb er Law Due Dilig en ce


Requirements in India are neglect ed by various stakeholders.
Indian Government has remained indif f erent w hile Cyber
Law Due Diligence requirement s are being f lout ed by
Telecom Companies, E-commerce Websit es, et c.
15. In t ern et Int ermediary Liab ilit y : In t ern et Int ermediary
Liabilit y in India is closely relat ed t o t he Cyber law Due
Diligence Compliances. As many st akeholders f ailed t o
ensure Cyber Law Due Diligence Compliances, they violated
t he Inf ormat ion Technology (Int ermediaries Guidelines)
Rules, 2011 of India.
16. Telecom Companies Violations : Tat a Teleservices Limit ed
(TTL) and Airt el are Violat ing Indian Cyber Law and Int ernet
Int ermediary Rules of India. Complaint s against Tat a and
Airt el are already pending bef ore t he Depart ment of
Telecommunicat ion and Telecom Regulat ory Aut horit y of
India (TRAI).
17. E-Discovery Requirements : The need f or E-Discovery f or
Indian companies has signif icant ly increased and it w ould
even increase f urt her in t he years t oo. The Cyber Law Non-
Compliances have given rise t o an increased demand f or E-
Discovery in India.
18. Corporate Frauds in India : Corporat e Frauds Invest igat ions
in India have become mult i disciplinary in nat ure. Besides
t he t radit ional corporat e f rauds, now Cyber Crimes and
Technology Frauds have also become part of Corporat e
Frauds Invest igat ion in India.
19. In do American Cyb er Crimes Coo p erat ion : An In d o -
American alert , w at ch and w arn net w ork f or real t ime
in f o r mat io n sh ar in g in Cyb er Crim e Cases h as b een
est ablished t o deal w it h Cyber Crimes cases f alling w it hin
Indian and American jurisdictions.
20. Corruption And Technology Related Due Diligence : Besides
Cyber Law Due Diligence, t he scope of Indian and Foreign
Corrupt ion and Technology relat ed due diligences in India
h as also in creased . Wit h t h e p assag e o f Lo k p al an d
Lokayuktas Act , 2013 by the Indian Parliament, a st ress upon
corrupt ion f ree environment has been made. Even Cent ral
134 Cy b er Cr i m e - Law an d Pr act i ce

Government permission is not required by CBI anymore t o


prosecut e senior bureaucrats f or corruption cases monitored
by Supreme Court of India.
21. Cyber Harassment And Cyber St alking : Cases of Cyber
Harassment and Cyber St alking have increased in India.
Websit es like OLX are becoming a breeding ground f or
Cyber Harassment and Cyber St alking. Furt her, allegat ions
of selling st olen goods w ere also leveled against OLX.
22. E-Commerce Compliances : Websites providing E-Commerce
services in India are not complying w it h Indian Law s. The e-
Commerce Websit es must be regulat ed in India as t hey are
operat ing w it h great disregard t o Indian Law s. Alt hough
Indian Government has assured t hat E-Commerce in India
would be regulated by comprehensive guidelines yet till date
no such sign has been show n by t he Government .
23. Legality of Bitcoins : The Bit coin craze has f inally st art ed
f ading aw ay as t he Reserve Bank of India (RBI) issued a
Warning Advisory against use of Bitcoins in India citing Cyber
Securit y and Legal Risks. The Enf orcement Direct orat e (ED)
also searched Seven Digit al Cash LLP of f ice and w ebsit e f or
selling and buying Bit coins in India. The Legalit y of Bit coins
in India w as alw ays in doubt s. M any count ries like China,
France, Thailand, Norw ay, et c. have either regulat ed t he use
of Bit coins or t hey have complet ely banned t hem in t heir
jurisdictions.
24. Conflict of Laws in Cyberspace : Another problem that Indian
Government is not w illing t o resolve pert ains t o Conf lict of
Law s in Indian Cyberspace. For long Companies like Google,
Faceb o o k , et c. ar e vi o l at i n g Law s o f In d i a. In d i an
Government has not t aken a t ough st and against such
Foreign Companies t hat alt hough operat ing in India f or
prof it yet are not complying wit h Indian Laws. For inst ance,
G-M ail is abet t ing and encouraging commission of various
Cyber Crimes in India yet Indian Government has allow ed it
t o operat e so f ar.
25. E-M ail Policy of India : There is no operat ional E-M ail Policy
of India. The Delhi High Court is analyzing E-M ail Policy of
India and complaint mechanism t o Facebook. The Delhi
Cy b er Cr i m e - Law an d Pr act i ce 135

High Court has also direct ed Cent ral Government t o issue


No t i f i cat i o n r eg ar d i n g El ect r o n i c Si g n at u r e u n d er
In f o r m at i o n Tech n o l o g y A ct , 2000. A n A d vi so ry b y
M aharasht ra Government to use Off icial E-Mails has already
been issued. Even an Email Policy of India is in pipeline.
26. Cyber Crimes and Wildlife : Cyber Criminals are not leaving
any opport unit y t o indulge in Cyber Crimes in India. The
Cyber Criminals t ried t o crack t he Iridium GPSSatellit e Collar
of a Tiger. The at t empt t o crack t he collar w as commit t ed
f rom Pune w hereas t he t iger w it h collar w as locat ed at a
great dist ance at the t iger reserves of M adhya Pradesh. The
Wildlif e Crime Cont rol Bureau (WCCB) has also recent ly
t raced at least 200 w ebsit es all over t he count ry, w hich are
being used by people t o trade in animal parts. So t he Cyber
Crimes in India are evolving and Law Enf orcement Agencies
of India must be w ell equipped t o deal w it h such Crimes.
27. Child Porn Nuisance : Child Pornography in India is becoming
a big nuisance. An Advisory by Home M inist ry of India on
Preventing and Combating Cyber Crime against Children in
India has also been issued. Recent ly Int erpol helped India in
t racking child porn surfers. We also need such Techno Legal
Framew ork so that child pornography can be curbed to t he
maximum possible ext ent in India.
28. Online Gambling in India : Alt hough w e have no dedicat ed
Online Gambling Law s in India yet online gambling is f airly
regulat ed in India under various Legislat ions. By indulging
in gambling in online and off line manner, t he concerned
person or company w ould be violat ing t he Law s of India.
M any online gambling racket s w ere busted in t he year 2013
and Indian Government must seriously consider regulat ion
of Online Gambling in India.
29. Online Pharmacies in India : Online Pharmacies in India are
under regulatory scanner around the w orld, including India.
Online sales of prescribed medicines in India are by and large
unregulat ed and open f or ab uses. In f act , illegal and
unregulat ed online sales of prescribed medicines in India
are f lourishing like a plague. Indian Government must give
a serious t hought t o t his area. M eanw hile, various st ake-
136 Cy b er Cr i m e - Law an d Pr act i ce

holders must underst and various aspect s of Telemedicine


and On lin e Ph armacies Law s in In dia an d t h eir legal
implicat ions and liabilities.
30. M LM Companies Frauds : M ult i Level M arket ing (M LM )
f rau d s h ave si g n i f ican t l y i n cr eased i n In d ia. In d ian
Government has even considered blocking of w ebsit es of
M LM companies in India t hat are engaging in f raudulent
behaviour. M ore clarit y in t his regard is needed.
31. Civil Liberties Protect ion in Cyberspace : Civil Libert ies
Prot ect ion in Cyberspace is gaining importance in India and
w orldw ide Even at t he Unit ed Nat ions (UN), Civil Libert ies
Prot ect ion in Cyberspace w ere considered. The Unit ed
Nat ions even passed a resolution approving Right to Privacy
in the Digital Age. However, India is in no mood of complying
w it h t hat Resolution.
32. E-Surveillance in India : E-Surveillance in India has increased
tremendously despite the UN Resolution. India has launched
Illegal and Unconst it ut ional Project s like Aadhar, Cent ral
M o n it o rin g Syst em (CM S), n at io n al In t ellig ence Grid
(Nat grid), crime And Criminal Tracking Net w o rks and
Syst ems (CCTNS), Int ernet Spy Syst em Net w ork And Traff ic
Analysis Syst em (NETRA), et c w it hout any Parliament ary
Oversig ht and Legal Framew o rk s. E-Surveillance, Civil
Libert ies Prot ect ion in Cyberspace and Conf lict of Law s are
some of the crucial issues that United Nations and India must
consider on a priorit y basis.
33. Internet Governance and India : In view of its growing Indian
Cyber Securit y concerns, India has decided t o challenge t he
U.S. government ’s control over t he Int ernet and ensure t hat
t he t rio of the U.S., Russia and China does not ignore India’s
concerns w hile developing an Int ernat ional Regime f or
Int ernet Governance. India w ill also push f or st oring all
Int ernet Dat a and VoIP Services w it hin t he Count ry, besides
ensuring cont rol and management of servers.
34. ICANN Free Domain Name Protection in India : The Policies
and Agreement s of Int ernet Corporat ion f or Assigned
Names and Numbers (ICANN) are in act ive violat ion of
Indian Law s. Thus, Domain Name Prot ect ion in India must
Cy b er Cr i m e - Law an d Pr act i ce 137

b e f ree f ro m ICANN’s in f lu en ce an d mu st b e ju dg ed
independent ly of ICANN’s Polices and Agreement s.
35. Challenges in Mobile Law s : Today, there are lot s of activities
in t he mobile ecosyst em. The increasing compet it ion has
int roduced new models of mobile phones, personal digit al
assist ors, t ablet s and ot her communicat ion devices in t he
global market . The int ensive use of mobile devices has
w idened t he mobile ecosyst em and t he cont ent generat ed
is likely t o pose new challenges for cyber legal jurisprudence
across t he w orld. There are no dedicat ed law s dealing w it h
t he use of t hese new communicat ion devices and mobile
plat f orms in a number of jurisdict ions across t he w orld as
t he usage of mobile devices f or input and out put act ivit ies
is increasing day by day. Wit h t he increasing mobile crimes,
t here is an increasing necessit y t o meet t he legal challenges
emerging wit h t he use of mobile devices and ensure mobile
prot ect ion and privacy.
36. Legal issues of Cyber Security : The ot her emerging cyber
law t ren d is t h e need f o r en act in g ap propriat e leg al
framew orks for preserving, promoting and enhancing cyber
security.
The cyber securit y incident s and t he at t acks on net w orks
are increasing rampant ly leading t o breaches of cyber
securit y w hich is likely t o have serious impact on t he nat ion.
How ever, t he challenge bef ore a law maker is not only t o
develop appropriate legal regimes enabling protection and
preservat ion of cyber securit y, but also t o inst il a cult ure of
cyber securit y amongst t he net users. The renew ed f ocus
and emphasis is t o set f ort h ef f ect ive mandat ory provisions
w h ich w o u ld h elp t h e p r o t ect i o n , p r eservat io n an d
promot ion of cyber securit y in use of comput ers, allied
resources and communicat ion devices.
37. Cloud computing and law : Wit h t he grow t h in int ernet
t echnology, t he w ord is moving t ow ards cloud comput ing.
The cloud comput ing brings new challenges t o t he law
makers. The dist inct challenges may include dat a securit y,
dat a privacy, jurisdict ion and ot her legal issues. There
pressure on t he cyber legislat ors and st akeholders w ould
138 Cy b er Cr i m e - Law an d Pr act i ce

be t o provide appropriat e legal f ramew ork t hat could


benef it t he indust ry and enable ef f ect ive remedies in t he
event of cloud comput ing incident s.
38. Privacy & Data Protection : As the world moves towards more
ubiquit ous comput ing at 24x7 accesses t o various kinds of
resources and communicat ion devices, online privacy and
dat a prot ect ion w ill cont inue t o be import ant t opics as f ar
as growth of cyber law jurisprudence is concerned. Dif ferent
count ries are likely t o come up w it h t heir ow n enabling
f ramew orks so as t o not only preserve and prot ect online
privacy but also provide f or st ringent met hodologies f or
prot ect ing dat a in t he digit al and mobile ecosyst ems.
39. Social media & legal problems : The social media is beginning
t o have social and legal impact in t he recent t imes raising
sign if icant leg al issu es and ch allenges. A lat est st u dy
indicat es t he social net w orking sit es responsible for various
problems. Since t he law enf orcement agencies, int elligence
agencies t arget the social media sites; they are t he preferred
reposit ory of all data. The inappropriate use of social media
is giving rise to crimes like cyber harassments, cyber st alking,
ident ity, t hef t et c. The privacy in social media is going t o be
undermined t o a great ext ent despit e t he ef forts by relevant
st ake holders. The challenge t o t he cyber legislat ors w ould
be t o ef f ect ively regulat e t he misuse of social media and
provide remedies to the victims of social media crimes. Social
M edia Lit igat ions are also likely t o increase concerning t he
associat ion or nexus w it h t he out put of social media. The
lit igat ions regarding def amat ion, mat rimonial act ions are
popularly increasing and with the data, information resident
on social media net w orking t here is an emerging t rend of
various ot her lit igat ions in t he coming years.
40. Spam law s : There is considerable grow t h of spam in emails
and mobiles. M any countries have already become hot spots
f or generating spam. As t he number of int ernet and mobile
u sers in crease t h e sp ammers make u se o f in no vat ive
met hods t o target t he digital users. It is t heref ore necessary
t o have ef f ect ive legislat ive provisions t o deal w it h t he
menace of spam.
Cy b er Cr i m e - Law an d Pr act i ce 139

These are some of t he t rends in Cyber Law w hich are based


on t he analysis of emerging cyber law jurisprudence. Wit h
t he grow ing pace of t echnology, it may not be possible t o
overrule any new trend in t he technology which might have
direct or indirect impact on Cyber Law.
Wit h t he ongoing advancing t echnology, more emerging
t rends are bound to occur. This creates a huge responsibilit y
to update the legal protection and regulat ion of t hese cyber
issues at par w it h global st andards.

***
140 Cy b er Cr i m e - Law an d Pr act i ce

Chapt er 7

Con cl usi o n and Recom m endat i ons

7.1 Cy b er Law : A Need t o Ret ak e


From t he abo ve discu ssion it seems q u it e clear t hat w it h
t h e ad van cemen t o f In f o rmat io n an d Co mmu n icat io n
Te ch n o l o g y, t h e f r eq u en cy o f cy b er cr i m es i s al so
increasing.
Wit h t he ongoing advancement of t echnology, variet ies of
cyber crimes are taking place. New categories of cyber crimes
f rom email hacking t o sof t w are piracy, f rom cyber st alking
t o cyber t errorism are t aking place in t he qualif ied w orld of
inf ormat ion and communicat ion t echnology.
It is report ed again and again t hat on an average crime
t hrough cyber w orld is increasing at t he rat e of 1.4% every
year. It is surprising t o know is t hat majorit y of cyber crimes
are conducted by the qualified people. From Pune Bank fraud
case t o Ban galo re’s cyber d ef amat io n case, q u alif ied
engineers in t his t echnology are marked as accused. They
are t ending t o commit crime as t hey are w ell aw are about
principles and comput er et hics f or t heir use in proper
manner or t heir misuse t ow ards impairing t he societ al
peace.
The issues discussed in t he various cases by t he court s in
In d i a d em ar cat es t h e f act t h at t h e In d i an l aw o n
Inf ormat ion Technology is not robust and t he doubt s lef t
in t he provisions are reason f or t he escape of t he accused.
Th e In f o rm at io n Tech n o l o g y Act is o b ject if yi n g t h e
p r o m o t i o n o f el ect r o n i c t r an sact i o n s r at h er t h an
prevent ion of cyber misuse. It w as only in year 2008 w hen
t he Amendment Act of 2008 has brought f ew specif ic
cat egories of cyber crimes.
140
Cy b er Cr i m e - Law an d Pr act i ce 141

Increasing Tendency
and variet y of Cyber
Crimes Decrease in t he
Elect ronic
Transact ion and
digit ally enabled
environment
Lack of Apt Legal
Prot ect ion in
Prevent ing

The above f ugure makes it clear t hat 1) Increase in t he


f requency and variet y of Cyber Crimes plus t he 2) Low level
of prot ect ion in prevent ing and regulat ing t he emerging
cyber crimes is equal t o t he 3) decrease in t he grow t h of
elect ronic t ransact ions and digit ally enabled environment .
This might adversely af f ect t he inclusive grow t h of our
count ry t oo.
It is quit e clear t hat increasing t endencies of cyber crime
w it hout legal recourse are det riment al t o t he grow t h of
elect ronic t ransact ions in our count ry at par w it h global
st andards. Theref ore, a balanced law on prevent ing and
regulat ing cyber crime is need of t he hour.
The law on cyber crime needs t o be st rong in order t o
prevent f ut ure cyber crime. Law should change it recourse
t o en su re a saf e, secu re an d t ru st w o rt h y co mp u t in g
environment . It is crucial not only t o our nat ional sense of
w ell-being, but also t o our nat ional securit y and economy.
Though India has t aken a lot of st eps t o st op cybercrime
but t he cyber law cannot aff ord to be st atic, it has to change
w it h t he changing t imes.
7.2 Reco m m en d at i o n
Therefore t o combat cyber crimes ef f ect ively and ef f iciently
142 Cy b er Cr i m e - Law an d Pr act i ce

in line w it h t he emerging t rends in cyber law s, f ollow ing


recommendat ions are submit t ed:
Nat i o n al Pl an t o Co m b at Cy b er cr i m e
It is suggest ed t hat alike t he developed count ries, Indian
government should also init iat e a Nat ional Plan t o combat
cyber crimes.
This nat ional plan should int ent t o w ork on t he f ollow ing
object ives and key priorit ies:
(i) Educat ing t he Communit y t o Prot ect Themselves;
(ii) Part nering w it h indust ry t o t ackle t he shares problem
of Cyber Crime;
(iii) Fo st er in g In t ell ig en ce l ed ap p ro ach an d sh ar in g
inf ormat ion;
(iv) Improving t he capacit y and capabilit y of agencies t o
address cyber crime;
(v) Improving int ernat ional cooperat ion on cyber crime;
(vi) Ensuring eff ect ive Criminal Just ice Syst em
Cy b er Cr i m e Pr ev en t i o n Gu i d e t o User s
Right ly said prevent ion is bet t er t han cure t heref ore, it is
suggest ed t hat t he government should issue cyber crime
prevent ion guidelines t o cit izens at large so t hat users can
f ollow guidelines in prot ect ing t hemselves f rom t he Cyber
Crimes.
Best pract ice t o preven t Cyb er Crime sh o uld in clud e
f ollow ing direct ions t o users:
a. Updat ing t he Comput er Syst em Regularly;
b. Select ing st rong passw ords w hich cannot be guessed.
One should avoid using passw ords like dat e of birt h,
dat e of marriage anniversary and alike;
c. Keep changing t he passw ords regularly;
d. Prot ect ing Comp ut ers w it h securit y Sof t w ares and
Physical Firew alls.
Cy b er Cr i m e - Law an d Pr act i ce 143

e. Prot ect ing ones personal inf ormat ion;


f. Keeping an eye on phony email messages;
g. Regular signing out of online accounts and t ransactions;
h. Avoid sharing credit card and debit card det ails;
i. St op responding t o emails and messages asking f or
personal inf ormat ion;
j. Pay at t ent ion t o privacy policies;
k. Guarding ones email addresses;
l. Regularly reviewing bank and credit card st atement s and
m. alike
Co m p r eh en si v e Law o n Cy b er Cr i m e
The present law on Inf ormat ion t echnology should be
amended comprehensively keeping in mind t he recent
changes and prospective changes in the cyber arena. Possible
cat egories of cyber crime should be w ell def ined w it h t he
variables of const it ut ing crime, possibilit ies of prevent ion
and clear demarcat ions on punishment f or t he cyber crime.
This w ill facilitate t he court s to administer the just ice quickly
and t he clear punishment w ill prevent people t ow ards
commit t ing t he crime.
Sp eci al i zed A g en cy t o In v est i g at e Cy b er Cr i m e
Investigat ion plays important role in get t ing t he real culprit
to be punished for his deed. Cyber Crime being a specialized
and int ellect ual crime requires expert s in invest igat ing t he
crime. Theref ore, it is suggest ed t hat specialized agencies
should be appoint ed in invest igat ing t he crime so t hat t he
vict im can get equat ed just ice.
Pr o m o t i n g Cy b er Li t er acy
Last b u t n o t t h e least ; t h e g o vern men t sh o u ld st art
campaigns in promot ing lit eracy about cyber w orld and
cyber crime specif ically t o make t he people more aw are
about t he use and misuse. It is f urt her recommended t hat
cyber illit eracy should st art f rom grassroot s level; instit ut es,
comput er cent ers, schools & individuals.
144 Cy b er Cr i m e - Law an d Pr act i ce

Unless t he people recognize t he pow er of Inf ormat ion and


Communicat ion Technology in t he const ruct ion and nat ion
building and t he adverse ef f ect of it s misuse in dest roying
t he inclusive development of t he societ y as a w hole, no law
w ill be able t o remedy t he nusance of cyber crime.
Theref ore, along w it h st rengt hening t he legal prot ect ion
on cyber crimes, t he g overnment sh ould enhance t he
aw areness amongst masses about t he use and misuse of
In f o rmat io n an d Co mmu n icat io n Tech n o lo g y an d it s
recompense and ef f ect s in t he inclusive development of
nat ion as a w hole. This w ill surely commence us t ow ards a
t rue “Digit al India.”
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***
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En d No t es

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148
Cy b er Cr i m e - Law an d Pr act i ce 149

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