This Article is written by Saba Alam ( a student of BALLB from Aligarh Muslim University, Murshidabad Centre)
Justice Misra while addressing the ‘International Conference on Cyberlaw, Cybercrime and Cybersecurity’said“When the good exists, the evil has to be around. That idea has provoked some to abuse the Internet. Instances of cyber-crime are on the rise and that is quite threatening.”
Table of Contents
The virtual world of the internet is known as cyberspace and the laws governing this area are known as Cyber Laws all the netizens of this space come under the ambit of these laws as it carries a kind of universal jurisdiction. In short, cyber law is the law governing computers and the internet.
Need for Cyberlaw in India
India recorded 50,035 cases of cyber-crime in 2020, with a 11.8% surge in such offences over the previous year, the NCRB figures showed.
As time passed by internet became more transactional with e-business, e-commerce, e-governance and e-procurement etc. Cyber-crime cases such as online banking frauds, tax evasion, virus attacks, cyber sabotage, phishing attacks, email hijacking, denial of service, hacking, etc are becoming common. Even in “non-cyber crime” cases, important evidence is found in computers/cell phones e.g., in cases of murder, kidnapping, tax evasion, etc.
As such, the coming of the Internet led to the emergence of numerous ticklish legal issues and problems which necessitated the enactment of Cyber laws.
Importance of Cyber Law:
- It covers all transaction over internet.
- It keeps eyes on all activities over internet.
- It touches every action and every reaction in cyberspace.
CYBER LAW IN INDIA
In India, cyber laws are contained in the Information Technology Act, 2000 (“IT Act”) which came into force on October 17, 2000. This act is an outcome of the resolution dated 30th January 1997 of the General Assembly of the United Nations, which adopted the Model Law on Electronic Commerce. The IT Act of 2000 was developed to promote the IT industry, regulate commerce, facilitate e-governance and prevent cybercrime.
As technology developed further and new methods of committing a crime using the Internet & computers surfaced, the need was felt to amend the IT Act, 2000 to insert new kinds of cyber offences. This led to the passage of the Information Technology (Amendment) Act, 2008 which was made effective on 27 October 2009.
Through the IT Act of 2000, the amendment was made in The Indian Penal Code of 1860 and the Indian Evidence Act of 1872 to keep in view the technological changes that were rising rapidly.
Salient provisions of the Information Technology Act
1) Digital signature and electronic signature
Digital signature means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3.
The term ‘digital signature’ has been replaced with ‘electronic signature’ to make the Act more technology-neutral.
E-governance or Electronic Governance is dealt with under Sections 4 to 10A of the IT Act, 2000.
It provides for legal recognition of electronic records and electronic signatures and also provides for legal recognition of contracts formed through electronic means.
Filing of any form, application or other documents, creation, retention or preservation of records, issue or grant of any license or permit or receipt or payment in Government offices and its agencies may be done through the means of electronic form.
3) Controller of Certifying Authorities (CCA)
The IT Act provides for the Controller of Certifying Authorities (CCA) to license and regulate the working of Certifying Authorities. The Certifying Authorities (CAs) issue digital signature certificates for the electronic authentication of users.
4) Duties of Subscribers
“Subscriber” means a person in whose name the Electronic Signature Certificate is issued. Secs.40 to 42 of the IT Act, 2000 deals with the duties of subscribers.
The subscriber has to generate public key pair by applying the security procedure when any Digital Signature Certificate has been accepted by a subscriber, the public key of which (Digital Signature Certificate) corresponds to the private key the subscriber which is to be listed in the Digital Signature Certificate.
5) Penalties and offences
Penalties and adjudication are provided under Chapter IX from Sec 43-74.
A new section 43A has been inserted to protect sensitive personal data or information possessed, dealt or handled by a body corporate in a computer resource which such body corporate owns, controls or operates.
Sections 66A to 66F has been added to Section 66 prescribing punishment for offences such as obscene electronic message transmissions, identity theft, cheating by impersonation using computer resource, violation of privacy and cyber terrorism.
Section 67 of the IT Act, 2000deals with penal provisions in respect of offences of publishing or transmitting material containing sexually explicit acts and child pornography in electronic form.
Section 73 & 74 deal with publishing false digital signature certificates.
LEADING CASES RELATING TO CYBER CRIME
State of Tamil Nadu v. SuhasKatti (2004)
The present case is a landmark case in Cyber Law as it ensured efficient handling of the case by making conviction possible within 7 months from filing the FIR. Considering that similar cases have been pending in other states for a much longer time, the efficient handling of the case which happened to be the first case of the Chennai Cyber Crime Cell going to trial deserves a special mention.
Facts of the case:
The accused was the victim’s family friend and wanted to marry her but she married another man which resulted in a divorce. After her divorce, the accused influenced her again and, on her unwillingness to marry him, he took the course of harassment through the Internet. He opened a false e-mail account in the victim’s name and posted obscene, defamatory, and annoying information about the victim.
Chargesheet was filed under Section 67 of the IT Act and Section 469 and 509 of the Indian Penal Code, 1860 against the accused.
The accused was convicted under Section 469 and 509 of the Indian Penal Code, 1860 and Section 67 of the IT Act by Additional Chief Metropolitan Magistrate. He was punished with a Rigorous Imprisonment of 2 years along with a fine of Rs. 500 under Section 469 of the IPC, Simple Imprisonment of 1 year along with a fine of Rs. 500 under Section 509 of the IPC, and Rigorous Imprisonment of 2 years along with a fine of Rs. 4,000 under Section 67 of the IT Act.
Shreya Singhal v. UOI (2015)
In the instant case, the validity of Section 66A of the IT Act was challenged before the Supreme Court.
Facts of the case:
Two women were arrested under Section 66A of the IT Act alleged to have posted offensive and objectionable comments on Facebook concerning the complete shutdown of Mumbai after the demise of a political leader. Section 66A of the IT Act provides punishment if any person using a computer resource or communication, such information which is offensive, false, or causes annoyance, inconvenience, danger, insult, hatred, injury, or ill will.
The women, in response to the arrest, filed a petition challenging the constitutionality of Section 66A of the IT Act on the ground that it is violative of the freedom of speech and expression.
The Supreme Court based its decision on three concepts namely: discussion, advocacy, and incitement. It observed that mere discussion or even advocacy of a cause, no matter how unpopular, is at the heart of the freedom of speech and expression.
The court held that section 66A is ambiguous and is violative of the right to freedom of speech and it takes within its range the speech that is innocent as well. It removed an arbitrary provision from IT Act, of 2000 and upheld citizens’ fundamental right to free speech in India. It was of the view that even though section 66A is struck down, provisions in the Indian Penal Code, 1860 will continue to be applicable prohibiting racist speech, any speech that outrages the modesty of a woman or speech aimed at promoting enmity, abusive language, criminal intimidation, racism, etc.
Christian Louboutin SAS Vs Nakul Bajaj &Ors (2018)
Facts of the case:
A luxury shoe company filed a lawsuit seeking an injunction against an e-commerce portal for facilitating trademark infringement with a seller of counterfeit goods.
Whether the defendant is permitted to utilise the plaintiff’s logos, marks, and images, which are protected under Section 79 of the Information Technology Act?
The defendant is more than an intermediary, according to the Court, because the website has complete control over the products supplied through its platform. It recognises and promotes third-party vendors to market their wares. The Court also stated that an e-commerce platform’s active participation would insulate it from the rights granted to intermediaries under Section 79 of the IT Act.