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Crimes In cyber Age And Its Response By Indian Judiciary

Table of abbrevaitions

* AIR - All India Reporter

* AP - Andhra Pradesh

* Art. - Article

* Bom. - Bombay

* ed. - Edition

* Ltd. - Limited.

* P. - page number

* Pat. - Patna

* SCC - Supreme Court Cases

* SCR - Supreme Court Reporter

* Sec. - Section

Crimes In cyber Age And Its Response By Indian Judiciary

Introduction

The advent of the third millennium has brought in an era of information society. The new era is the result of rapid changes brought about by the new technology and the cyber world. Obviously the information society offers vast scope and opportunities to human beings to identify information, to evaluate information, and to exchange information for the benefits of the citizens the world over. The in formation technology provides for a new environment, new work culture, new business links and trading networks. It allows information and knowledge based work to be located anywhere. It is virtually transforming and revolutionizing the world.

The information technology is a double-edged sword, consistently presenting us with benefits and disadvantages. The increasing opportunities for productivities, efficiency and worldwide communications brought additional users in droves[1]. Today, the internet is a utility, analogous to the electric company and ‘.com' has become a household expression. The reliability and availability of the internet are critical operational considerations. Activities that threaten these attributes like spamming, spoofing, etc, have grave impacts on its user community. Any illegal act, for which knowledge of computer technology is essential for its perpetration, investigation, or prosecution, is known as cyber crime.

Among the various problems emerging out of the internet are the menace of hackers, cyber terrorism, spamming, Trojan horse attacks, denial of service attacks, pornography, cyber stalking etc.

Through this paper the researcher will try to study the problem of cyber stalking, cyber defamation, various types of data theft and the laws relating to it. An effort will also be made to recommend some suggestions to fight these dangerous problems, with the response of Indian judiciary to it.

Cyber staking

Cyber stalking, has been defined as the use of electronic communication including, pagers, cell phones, emails and the internet, to bully, threaten, harass, and intimidate a victim. Moreover, it can also be defined as nothing less than emotional terrorism.[2]

Cyber stalking can take many forms'. However, Ellison (1999) suggests, cyber stalking can be classified by the type of electronic communication used to stalk the victim and the extent to which the communication is private or public. Ellison (1999) has classified cyber stalking as either ‘direct' or ‘indirect'. For example, ‘direct' cyber stalking includes the use of pagers, cell phones and the email to send messages of hate, obscenities and threats, to intimidate a victim. Direct cyber stalking has been reported to be the most common form of cyber stalking with a close resemblance to offline stalking (Wallace, 2000).

Why people do it?

Generally, to be defined as stalking the behaviour must be unwanted and intrusive. Another important point is that the stalker must also have an intense preoccupation with the victim. The range of behaviour involved in stalking can be broadly grouped in three categories.

Firstly, there is following, which includes frequenting workplaces and homes, maintaining surveillance, and engineering “coincidences.”

Secondly, there is communicating—by phone, letters, cards, graffiti, gifts, and, Increasingly, electronic mail and the internet (“cyber stalking”).Often the stalker will order goods and services on the victim's behalf.

Finally comes aggression or violence, in which stalkers threaten their victims, harass their families, damage their property, make false accusations about them, and cause sexual or physical injury.

Sexual attractions and motives are other very important reasons for cyberstalking. In USA, the federal law enforcement agencies have encountered numerous instances in which adult paedophiles have made contact with minors through online chat rooms, established a relationship with the child, and later made contact for the purpose of engaging in criminal sexual activities.[3]

Nature of cyber staking

The nature of cyber stalking is ascertains by the medium which is used for its execution.

According to … cyber stalking had been classified into four kinds[4]

a) E-mail stalking

b) Chat stalking

c) Bulletin board systems

d) Computer stalking.

Email stalking

Electronic mail is an electronic postal service that allows individuals to send and receives information in matter of seconds. This sophisticated use of telephone lines allows communication between two people who may or may not know each other but can ‘speak' to each other using a computer. In general Email is an insecure method of transmitting information or messages. Everyone who receives an email from a person has access to that persons email id. With some online services as AOL, a person's screen name is also an email address. In addition, when a person posts an item on a newsgroup, that peson's email id may be available to anyone who reads that item. It is unsurprising, then, that email is a favoured medium for cyber stalkers.

Technologically sophisticated email harassers send ‘mail bombs', filling a persons inbox with hundreds or even thousands of unwanted mails in the hope of making the account useless. Others send electronic viruses that can infect the victim's files.[5]

Chat stalking

A chat room is a connection provided by online services and available on the internet that allows people to communicate in real time via computer text and modem. Cyber stalkers can use chat rooms to slander and endanger their victims. In such cases the Cyber stalking takes on a public rather than a private dimension. As live chat has become more popular amongst users of the internet with tools such as internet relay chat (IRC), it has also become more popular as a medium through which stalkers can identify and pursue their prey.

When a person enters a chat room, his screen name joins the list of names of others in the group. Depending on the nature of the chat software, that person can address others in the room and vise versa as a part of the group discussing from a smaller group in a private chat room or send private, one to one instant messages to others anytime.[6] During ‘chat', participants type instant messages directly to the computer screens of other participants.

When a person posts a message to a public news group this is available for anyone to view copy and store. In addition, a persons name, email address and information about the service provider are easily available for inspection as a part of the message itself. Thus, on the internet, public messages can be accessed by anyone anytime- even years after the message were originally written. In IRC, the harasser may chose to interrupt a person's chat electronically or otherwise target a chat system, making it impossible for someone to carry on a conversation with anyone else. The Cyberstalker can engage in live chat harassment or abuse of the victim( otherwise known as ‘flaming') or he/she may leave improper message o the message board or in chat rooms for or about the victim.

Bulletin board systems

A bulletin board system (BBS) is a local computer that can be called directly with a modem[7]. Usually they are privately operated and offer various services depending on the owner and the users. A bulletin board allows leaving messages in group forums to be read at a later time. Often a BBS is not connected to a network of other computers, but increasingly BBSs are offering internet access and co Cyber stalkers area using bulletin boards to harass their victims.[8]

Online have been known to known to post insulting messages on electronic bulletin boards signed with email addresses of the person being harassed. The Cyber stalker can also post statements about the victims or start rumours which spread through the BBS. In addition a Cyber stalker can ‘dupe' another internet users into harassing or threatening a victim by posting a controversial or enticing message on the board under the name , phone numbers or email address of the victim, resulting in subsequent responses being sent to the victim.[9]

Computer stalking

With computer stalking, cyber stalker exploits the internet and the windows operating system in order to assume control over the computer of the targeted victim. An individual ‘windows based' computer connected to the internet can be identified, allowing the online stalker to exercise control over the computer of the victim. A cyber stalker can communicate directly with his or her target as soon as the target computer connects to the internet. The stalker can also assume control over the victim's computer and the only defensive option for the victim is to disconnect and relinquish his or her current internet address.[10]

An example of this kind of cyber stalking was the case of a woman who received a message stating ‘ I'm going to get you'. The cyber stalker then opened the woman's CD-ROM drive in order to prove that he had control over her computer.

cyberstalking trends and statistics offenders

Previous studies that have investigated stalking offenders by and large, have focused on the offline stalking offender

Regardless for the offenders group such as ‘simple', ‘love' or ‘erotomanic' statistics reports, male offenders to account for the majority of offline stalking offenders. Working to Halt Online Abuse (2000) statistics also support the gender ratio of offenders claiming, 68% of online harassers/cyber stalkers are male.

Furthermore, common social and psychological factors have been found within offline stalking offender population. For example, social factors such as the diversity in socio-economic backgrounds and either underemployment or unemployment have been found significant factors in offline stalking offenders[11].

In a research done on young stalkers between 9 and 18 years of age little difference was found between young and adult offline stalking offenders. For example, the majority of offenders were male, had some form of previous relationship with the victim and experienced social isolation.[12]

Victims

Currently, there are limited studies on the victims of cyber stalking. Although, anyone has the potential to become a victim of offline stalking or cyber stalking, several factors can increase the statistical likelihood of becoming a victim. Studies[13] that have investigated offenders of offline stalking, have found some common factors within the selection of victims. For example, contrary to public belief, a large proportion of stalking victims are regular people rather than the rich and famous.

Goode claimed[14], up to 80% of offline stalking victims are from average socio-economic backgrounds. In addition, the statistical likelihood of becoming a victim increases with gender.

Working to Halt Online Abuse (2000) reports, 87% of online harassment/cyber stalking victims are female. However, victim gender statistics may not represent true victims, as females are more likely to report being a victim of online harassment/cyber stalking than males.

Although studies have shown that the majority of victims are female of average socio-economic status, studies have also shown that offline stalking is primarily a crime against young people, with most victims between the age of 18 and 29.[15] Stalking as a crime against young people may account for the high prevalence of cyber stalking victims within universities. For example, the University of Cincinnati study showed, 25% of college women had been cyber stalked.[16].

Nevertheless, previous relationships have been shown to increase the likelihood of being stalked offline. For example, it was reported, 65% offline victims had a previous relationship with the stalker[17]. Although studies of offline stalking claim the majority of victims have had a previous relationship with the stalker

Working to Halt Online Abuse Statistics[18] fails to support a previous relationship as a significant risk factor, for online harassment/cyber stalking. For example, 53% of victims had no prior relationship with the offender. Therefore, the risk factor of a prior relationship with the stalker may not be as an important factor in cyber stalking, as it is in offline stalking.
Psychological effects of cyberstalking

Currently, there are few studies on the psychological impact on victims. However, Westrup[19]studied the psychological effects of 232 female offline stalking victims. He found out that the majority of victims had symptoms of PTSD, depression, anxiety and experienced panic attacks.

Additionally, it was found that 20% of victims increased alcohol consumption and 74% of victims suffered sleep disturbances[20]. Nevertheless, social and psychological effects of offline stalking cannot be separated as social effects can impact on psychological effects and psychological effects can impact on the social effects. Although the majority of studies have focused on the offline stalking victims, there is no evidence to suggest that cyber stalking is any less of an experience than offline stalking (Minister for Justice and Customs, 2000), As shown, there are many common themes between offline stalking and cyber stalking.

For example, offenders are most likely to be male and offline stalking or cyber stalking is the response to a failed (offline/online) relationship. Additionally, young females account for the majority of victims. Furthermore, victims experience significant social and psychological effects from offline stalking or cyber stalking.[21]

Legal responses to cyberstalking

Cyber stalking is are a relatively new phenomenon and many countries are only now beginning to address the problem. India has also witnessed cases of cyber stalking, cyber harassment and cyber defamation. However, as there is no specific law or provision under the IT Act, a number of these cases are either not registered or are registered under the existing provisions of Indian Penal Code—which are ineffective and do not cover the said cyber crimes.[22]

Since its promulgation, the IT Act 2000 has undergone some changes. One big change is the recognition of electronic documents as evidence in a court of law. Market players believe this will go a long way in giving encouragement to electronic fund transfers and promoting electronic commerce in the country.

However, all hope is not lost as the cyber crime cell is conducting training programmes for its forces. It also has plans to organize special courses for corporate to combat cyber crime and use the IT Act effectively.

Cyber defamation

Defamation can be understood as the intentional infringement of another person's right to his good name. It is the wrongful and intentional publication of words or behavior concerning another person, which has the effect of injuring that person's status, good name, or reputation in society. It is not defamatory to make a critical statement that does not have a tendency to cause damage, even if the statement turns out to be untrue[23]. In this case a claim for malicious falsehood[24] may be raised.

Another key feature of the Internet is that users do not have to reveal their identity in order to send e-mail or post messages on bulletin boards. Users are able to communicate and make such postings anonymously or under assumed names. This feature, coupled with the ability to access the internet in privacy and seclusion of one's own home or office and the interactive, responsive nature of communications on the Internet, has resulted in users being far less inhibited about the contents of their messages resulting in cyber space becoming excessively prone to defamation.

What is defamatory?

As to what is defamatory; Permiter v. Coupland[25] and Youssoupoff v. Metro Goldwyn Mayer Pictures Ltd[26] lay down that it is a publication without justification or lawful excuse, which is calculated to (meaning “likely to”) injure the reputation of another by exposing him to “hatred, contempt, or ridicule”[27] and make the claimant “shunned and avoided”. Then in Sim v. Stretch[28] the definition was widened to include the test whether the words tend to lower the plaintiff in the estimation of the right-thinking members of society in general.

A person's good name can only be damaged if maligning statements are made to someone other than that person; that is, the defamatory statement must be disclosed to a third person, thereby satisfying the requirement of publication. Thus the law of defamation places a heavy burden on the defendant. All that a plaintiff has to prove, in a defamation action, is the publication of defamatory matter. The onus then lies on the defendant to prove innocence.

In essence, the law on defamation attempts to create a workable balance between two equally important human rights: The right to an unimpaired reputation and the right to freedom of expression. In a cyber society, both these interests are increasingly important. Protection of reputation is arguably even more important in a highly technological society, since one may not even encounter an individual or organization other than through the medium of the Internet.

Jurisdiction

It is a fact that the tried and true real world legal principles do not apply in the digital generation. Even seemingly ubiquitous, time honoured principles must be examined, including whether a court has the power to exercise jurisdiction over a defendant because of the defendant's ties to or use of the Internet or Internet related technologies. This jurisdictional rethinking requires us to address the concept that involves the right of the sovereign to exert its power and control over people or entities that use the Internet

One of the complexities of the Internet is the fact that Internet communications are very different than telephone communications. The telephone communication system is based on circuit-switching technology, where a dedicated line is allocated for transmission of the entire message between the parties to the communication. A dedicated line, on the other hand, does not accomplish Internet communications. A message sent from an Internet user in India may travel via one or more other countries before reaching a recipient who is also sitting at a computer in India. Therefore, the lack of a physically tangible location and the reality that any Internet communication may travel through multiple jurisdictions creates a variety of complex jurisdictional problems[29].

Position in india

Cases of cyber defamation do not fit neatly in the accepted categories of crimes. They represent harm of greater magnitude than the traditional crimes and of a nature different from them. Unlike the traditional crimes, they are not in the shape of positive aggressions or invasions[30]. They may not result in direct or immediate injury; nevertheless, they create a danger, which the law must seek to minimize. Hence, if legislation applicable to such offences, as a matter of policy, departs from legislation applicable to ordinary crimes, in respect of the traditional requirements as to mens rea and the other substantive matters, as well as on points of procedure, the departure would be justified[31]

An effort is still wanted to formulate an international law on the use of Internet to curb this imminent danger of cyber crimes and to achieve a crime free cyber space. Defamation laws should be sufficiently flexible to apply to all media.

The difficulty is that the defamation laws world over were principally framed at a time when most defamatory publications were either spoken or the product of unsophisticated printing.

We do need a stronger legal & enforcement regime in India to combat the increasing cyber crimes or in other words, efficacy in dispensation of justice will be instrumental in curtailing such activities.

The position in Indian law is not very clear and amendments should be brought to Section 67 of the Information Technology Act, 2000[32] and also to Section 499 of the Indian Penal Code[33], by expressly bring within their ambit offences such as defamation in cyber space, which is certainly a socio-economic offence.

Internet Banking Fraud

The concept of internet banking was introduced to facilitate the depositors to have access to their financial undertakings globally. But every good thing has its own demerits; the introduction of this system was coupled by a number of fraud incidents in which the money of depositors was embezzled by the net swindlers popularly known as hackers.[34]

Digital Extortion

For any company doing business on the Internet, it's the sound of doom: a computer voice warning of an inbound attack. Call it a cyber-shakedown: A hacker threatens to shut down a company's Web page, unless the business pays up.[35]

Digital Extortion can be defined as, “Illegally penetrating through the system of an enterprise and then compelling it to pay substantial amounts in lieu of their secret data or to save their system from being wiped out by the hackers.”

In a recent incident, Security researchers at Websense were trying to learn why a client's files were scrambled when they found a note demanding $200 for the electronic key to the files. The money was to be sent to an online payment service. The data was recovered without paying the ransom, but experts are worried that more sophisticated attacks could be more serious.[36]

Credit Card Frauds

Credit Card popularly known as plastic money has came up as a panacea for the troubles of carrying huge amount of money in the pocket. The credit card embodies two essential aspects of the basic banking functions: the transmission of payments and the granting of credit. But again the usage of this technology has brought in new forms of crimes with the fraudsters employing entirely new technologies to manipulate this technology for their illegal economic gains because unlike paper money, it was not anonymous and the usage of credit card can be traced.

The Indian Legal Response to Data Theft Related Cyber Crimes

In the past few years, India has emerged as a leader in information technology. Also, there has been an explosion of the BPO industry in India, an industry which is based primarily on IT[37], an industry where there is a huge risk of data theft since the business primarily is based on huge amounts of sensitive data of the customers. The numbers of computer literates have also grown at a rapid pace. The prices of computers and other peripherals have slashed drastically. Dial-up and Broadband connections, both are found and are easily accessed at cheap rates. All this has resulted in making the middle-class in India computer literate as well. Hence, as a result of all these developments, the Indian Parliament enacted the Information Technology Act, 2000. The researchers will discuss some of the remedies provided for in brief and has also provided certain suggestions as to where the act can be amended.

1) Penalty for Tampering with Computer Files

As discussed already, Industrial espionage may also include tampering with the computer files to slow down the system or corrupt databases. Section 65 of the Act defines this sort of offence and prescribes an imprisonment of 3 years or fine extending to two lakh rupees.

2) Penalty for Hacking

This also relates to data theft and industrial espionage. Hacking is where a person hacks into a computer resource and in any way destroys, deletes or alters any information is to be punished with an imprisonment of up to three years or a fine extending up to two lakh rupees. For this the requirement of mens rea, i.e. metal element is required.

3) Penalty for Damage of Computer, Computer System, etc.

This is the section which can be said to deal directly with data spying. Section 43 says that whosoever without the permission of the owner accesses any computer ,downloads, copies or extracts any data, computer data base or such information is liable to pay compensation not exceeding rupees one crore. It takes care of all the possibilities arising out of such situations. In this case the condition of mens rea is not required, i.e. this section imposes a strict liability on every unauthorized access.

4) Penalty for breach of Confidentiality and Privacy

Now, this section seeks to bring to the book people who secure access to any electronic record etc. and without the consent of the person concerned disclose the information to a third party.

Shortcomings of the Act:

* No steps to combat Internet Piracy- There is absolutely no legislation to combat the menace of piracy which has India firmly in its iron grip .As discussed by the researchers above India is one of the countries where there is rampant violation of copyrights. Pirates sell copyrighted material openly, on the streets, yet nothing can be done about it.

* Power of Police To Search Limited to Public Places-Police officers can search public places and arrest any person having committed a cyber crime but it is seldom that such crime takes place in the open. Hence, the police have been limited in its powers by the act.

* Issue of Privacy and Surveillance-There is no legislation that protects the citizens from having their physical features being examined and the details stored without their consent. When biometric systems gain currency in India the old argument of Privacy v. Security will have to be waged as it has been waged in the US.

As we have seen, there are various aspects of data theft, not only the conventional one, though that remains one of the most well-known ways of data-theft, i.e. data spying .In today's world there is no one way of defining data. Data can still be in the form of a spreadsheet and also you can call information about a person including his physical features, which if they fall into the wrong hands can cause identity theft and can be used in various other ways to commit crime.

The companies should monitor their employees, before hiring their employees and after hiring them. Employees should be given incentives and good salaries so that they resist the temptation to give away information to rival companies. Since it is a capitalistic system, competition will always remain, and companies will sink to unfair competition. Hence, unfair practices will always exist, and to minimize those companies should take all precautions necessary.

As far as the laws concerning internet piracies go, not only in India, but the entire world needs better and more stringent laws that protect the copyright of intellectual property and stop the rampant copyright violation that has engulfed the whole world. Copyright laws need to be strengthened or else creativity will suffer since the artistes or investors will have no incentive. The music, film and publishing industry have all suffered heavily, to the tune of billions.

India, also, needs more legislation, and most importantly of all, it needs to find ways to implement the existing laws, for example giving the police powers to search private places in case of suspicion of cyber crime. The definition of hacking needs to be modified and narrowed, since in the existing legislation the definition includes too many unnecessary acts.

A lot of work regarding the use of biometric technology has to be done. The problem which the US face now (as has been discussed above) is the problem which is going to arise now, in India. Though biometric technology is definitely the way to go in view of the increased risk of terrorist attacks all around the globe, but there are serious issues of, not only violation of privacy, but also that of data theft, not only by criminals, but by the state itself

Challenges of information technology to existing legal regime

The impact of Internet on the existing legal regime can be well appreciated by the fact that the US Congress had introduced more than 50 bills pertaining to Internet and e- commerce, in the first three months of 1999 alone.[38] The issues, which need to be addressed urgently, are security of transactions, privacy, property, protection of children against an easy access to inappropriate content, jurisdiction, and validity of contracts, Procedural rules of evidence and other host of issues.

Constitutional issues

The issues raised by the advent of the Internet relevant to the constitutional lawyers are freedom of speech and privacy. The questions regarding the freedom of speech, which need to be answered, are:

1. Is publication, of information on the Internet equivalent to the "speech and expression" made by an ascertained person in real space within the political boundaries?

2. If it amounts to speech and expression should it be then regulated?

3. If it is to be regulated, should it enjoy the freedom available to press and thus subject to restrictions of article 19(2) or be treated as broadcast media, which is subject to governmental regulations?

4. Should we consider Internet a different media unparallel with the traditionally known and have to come up with different legal regime?

In the developed world, a record bank is created in which individual's "record image" is stored. This "record image" is based on the information collected from different sources pertaining to an individual who remains unaware of the method, process and sources of record image[39].This record image has far reaching implications for an individual who may apply for insurance, medical care, credit and employment benefits.[40] The government also maintains electronic files, which contain sensitive information. This information is shared among the government agencies, private organisations and between the government and private sector, which in fact is facilitated by the technology itself. There is a possibility that the data collected from different sources to prepare a profile is outdated, inaccurate or out rightly false. Translating information to make it computer readable further compounds the problem. This increases the possibility of inaccuracies. Thus the objection is not that the information has been collected with the knowledge of the concerned person, but the objection lies in the fact that an inaccurate information has been collected which will be repeatedly used to evaluate character, reputation, employment chances and credit worthiness of an individual who was not given chance to go through the information before it is finally stored, nor does he know the source where from the information has been collected.

The Supreme Court of India has found article 21 flexible enough to encompass right to privacy within its fold. In People's Union for Civil Liberties v. Union of India[41] the apex court held the right to privacy a fundamental right. The apex court reminded that this right has its genesis in international instruments more particularly in articles 17[42]and 12[43] of the international Covenant on Civil and Political Rights, 1948, respectively to which India is a signatory and has to respect these instruments as they in no way infringe the domestic laws.[44]

There are no two opinions about the fact that the Internet is going to be on central stage in future where an individual cannot be even in a "take it or leave it" situation. Its pervasiveness, speed and efficiency will provide little scope to the government or its instrumentality or any public or private establishment to think of any other equivalent alternative that would ensure the same safeguards to a person that were available to him in a system without Internet.

The aim of the law and of the courts should not be (or cannot be) to retard scientific development, but of course scientific developments or its use cannot be at the cost of dignity, integrity and honour of an individual. Otherwise, the natural question will arise: scientific development for whom? One must think of ways and means where Internet is allowed to function smoothly but at the same time ensure protection of individual's rights, which have been protected not only by the Constitution but also by the constitutional interpretations. This approach of balancing of competing interests has a precedent in the American privacy jurisprudence. Stevens J. of the US Supreme Court declared in Whalen v. Rao[45]that the computer system did not violate a protected sphere of privacy. He made, however, immediately known that he would have ruled otherwise, had information not been adequately safeguarded. He himself suggested that one of the possible safeguards is "to avoid disclosure of the information." Brennan J. while concurring this opinion expressed concern about the easy accessibility of the information. He expressed optimism that further developments in information technology will demonstrate some curbs on such technology.

Tort principles

Like other branches of law, information technology has not left common law tort principles unchallenged. In fact, it has been argued, in particular with the service provider's liability for defamation, that the issues raised are so new and unique that the application of existing principles is inappropriate and there is a need for developing new standards.[46]

The tort law of negligence in relation to computers is generally of two types. First, it may be related to computer system (e.g., defective hardware or software) or improper or non-performance of services. Second, it may be negligent operation or non-use of the system. The standard tests applicable to negligence evolved by the courts are applicable here also but of course in a more refined way. For instance, "foreseeable test" may have to be redefined in case of computers that are manufactured for general purpose. These computers at present perform a variety of functions that even their creators might not have envisioned. The computer manufacturer may find himself liable in a number of ways if there is some defect in the design, program or use of the computer. Again a computer designated to perform general functions may cause problems for the vendor as the question as to where to draw a line so as to put limit on the liability of the vendor will be always there.45

The professionals in any field have much greater duty than the one imposed on an individual by the law of negligence. A professional is judged by the standards set by his own peers who will not be shared by a reasonable man as is required under general law of negligence. However, the demarcating line between the professional and non­professional is vague. Due to this uncertainty, it is yet to be resolved whether a computer designer or programmer is a professional or not. However, in Pezzillo v. General Telephone and Electronics Information System. Inc.[47] the court declined to hold a computer programmer as professional and compared him with a draftsman employed by an architect. The court held that the architects and computer analysts are professionals. This issue is yet to be resolved by the

Indian courts.

A person and the extent of his liability raise an interesting issue in the domain of negligence law in relation to non-use of computer. It has been argued that such failure is a breach of the duty to take reasonable care[48] and in President of India v. West Coast Steamship Co.,[49] it was laid down that the obligation in such situations arises where there has been a custom or usage in the industry to use computer. This test may not be helpful in India, as the use of computer has not been yet so common as to precipitate into a custom or usage. However, without complicating the matter, it can be argued that a person employed to use computer will be held responsible for his non-use in the same way as the person is held responsible for its negligent use. Failure to use itself implies breach of a duty to use.

The ticklish issue of whether online publication of defamatory statement amounts to libel or slander will not be debated in India in view of the preponderance of court opinions not in favor of recognizing this common law dichotomy,[50]

A pertinent question arises with respect to the liability of Internet service providers for defamation. Is he a publisher or distributor for the purposes of defamation as the standards of liability are different? In America, a distinction has been maintained between the primary and secondary publisher. In case of primary publisher, the liability is strict and secondary publisher's liability arises only when claimant proves fault on the part of the secondary publisher. Secondary publisher means a distributor and will certainly cover Internet service provider {ISP).[51] On the other hand, under common law, publisher includes anybody involved in the publication, distribution or dissemination of a libel. As a result printers, wholesale dealers, bookshops and libraries are associated with the defendant for libel action. The same applies to the electronic equivalents of such disseminators, namely ISPs, access providers, web-sue hosts, online database and services. This was also confirmed by the first decision of UK High Court on the liability of Internet service providers (ISPs) in Godfety v. Demon Internet Limited.[52] However, some statutory defenses have been provided to the Internet service providers by section 1 of the

Defamation Act, 1996.[53]

In India, a half way house between the American approach and common law doctrine has been adopted. The IT Act, through section 79. has come close to the UK Defamation Act, 1996 by providing that the service provider will be liable where he himself makes a defamatory statement or where he fails to exercise due diligence to prevent the commission of the offence. Where the offence has been committed without his knowledge or even after he exercised reasonable care, he will not be responsible. So there is a significant shift from the American approach that places onus on the claimant. Here onus lies on the Internet service provider to prove that he is innocent. This approach has advantages, as in the faceless digital world, author of the defamatory matter may not be traced, or he may be outside the jurisdiction. As against this, ISPs can be easily located. However, it remains to be seen whether this "due diligence" is equivalent to common law duty on the part of ISPs to check every transfer of information which sometimes takes place without the human intervention and sometimes it is humanly impossible to screen all information which passes on. Then if such duty is imposed on ISPs, the questions of privacy and confidentiality will be always there

Conclusion

IN May 2000, at the height of the dot-com boom, India enacted the IT Act and became part of a select group of countries to have put in place cyber laws. Three years down the line, is the Internet a better place to live in? Are those cyber criminals behind bars? Are we shopping mad online?

Well, not really. The Internet is still a dirty place to hang out; beware those viruses and spam mails. Cyber hooligans are growing in numbers and are very much at large. And we are still wary of using our credit card online.

Despite the enactment of cyber laws and their existence for three years, a lot more needs to be done, both online and offline, as well as within the judiciary and law enforcement agencies, experts feel. However, a number of right steps have also been taken to make the IT Act more relevant in today's context.[54]

Despite the Information Technology Act, 2000, there are still several grey areas that exist within the law. "The IT Act, 2000, is primarily meant to be a legislation to promote e-commerce. It is not very effective in dealing with several emerging cyber crimes like cyber harassment, defamation, stalking and so on."[55]

In all five years, despite the growing crime rate in the cyber world, only less than 35 cases have been registered under the IT Act 2000. And no final verdict has been passed in any of these cases as they are now pending with various courts in the country.

The information technology has spawned new legal issues that do not have a precedent in the common law world, which has been evolved and established in a physical world with political boundaries and in tangible medium. The principles of common law, in many cases, are inapplicable to the legal issues that have emerged in cyberspace that knows no boundaries and physical environment. These issues do not have express solution in the existing legal regime. Although, the Information Technology Act, 2000 has been passed, yet it is simply a gap filler and in many situations it is not applicable. The legal position regarding the electronic transactions and civil liability for the acts executed in cyberspace is still hazy. Thus courts will be, time and again, called to resolve nebulous issues and in the process, it is hoped that cyber jurisprudence will be evolved and ultimately established.

Suggestions

A major hurdle in cracking down on the perpetrators of cyber crimes such as hacking is the fact that most of them are not in India. The IT Act does give extra-territorial jurisdiction to law enforcement agencies, but such powers are largely inefficient. This is because India does not have reciprocity and extradition treaties with a large number of countries.

What India needs to do in this backdrop, is to be a part of the international momentum against cyber crime. The only international treaty on this subject is the Council of Europe's Convention on Cyber Crime, formulated primarily by the European Union. By signing this treaty, member countries agree on a common platform for exchange of information relating to investigation, prosecution and the strategy against cyber crime, including exchange of cyber criminals.

At the last count, there are 43 member countries, including the US and South Africa. India is not yet a part of this group and being a member would go a long way in addressing this issue of cross-border cyber terrorism.

The Indian IT Act also needs to evolve with the rapidly changing technology environment that breeds new forms of crime and criminals. "We are now beginning to see new categories and varieties of cyber crimes, which have not been addressed in the IT Act. This includes cyber stalking, cyber nuisance, cyber harassment, cyber defamation and the like.

Another glaring omission in the Act, which contradicts the very objective of passing such a law - encouraging e-commerce by giving it legal validity — is the fact that the IT Act does not cover electronic payment. However, some steps such as amendments to the Negotiable Instruments Act have been taken to address this issue. Also in the making is a law on data protection.

Bibliography
Articles

Brownstein, A. (2000). In the Campus Shadows, Women are Stalkers as well as the Stalked, The Chronicle of Higher Education, 47(15), 2002 ed.
Charles, Computer Bulletin Boards and Defamation; Who Should be Liable and under What Standard' 2 Jl. and Tech
Cuterrca, Computer Network. Libel and the First Amendment, Computer Law Journal. Cyber Shakedowns on Rise. (http://www.cbsnews.com/stories/2005/06/0/eveningnews/main699362.shtm)

Devashish Bharuka, Indian information technology Act, 2000: Criminal Prosecution made easy for Cyber Psychos , (Vol. 42, 2002), Journal of India Law Institute, New Delhi
Eugene R. Quinn, Jr., The evolution of Internet Jurisdiction: What a long strange trip it has been, Syracuse Law and Technology Journal, Spring, 2000: www.westlaw.com
Farooq Ahmed, Challenges of the information technology to the existing legal regime: Common law principles No more Panacea ,(Vol. 46, 2004), Journal of India Law Institute, New Delhi.

Goode, M., Stalking: Crime of the Nineties. Criminal Law Journal, 19, 1995.
Gopika Vaidya-Kapoor, Byte by Byte. available on the website - http://www.rediff.com/netguide/2003/feb/18crime.htm
Hardy, "The Proper Legal Regime For Cyber Space" 55 Utah L Rev 993
Jewkeys, Yuonne (ed.), Dot.coms Crime, devience and identity, theft on the internet
Jim Puzzanghera, US lawmakers clamouring to regulate Internet, San Jos Mercury News 9th Apr 1999 available online from Lexis-Nexis.
Keane Insight, What's wrong with our cyber laws? , Avaliable on - (http://www.expresscomputeronline.com/20040705/newsanalysis01.shtml)
Laughren, J, Cyberstalking Awareness and Education , Available on -
http://www.acs.ucalgary.ca/~dabrent/380/webproj/jessica.html, last visited on (02-11-2007)
McCann, J.T. (2000). A Descriptive Study of Child and Adolescent Obsessional Followers. Journal of Forensic Sciences.
Meloy, J.R. & Gothard, S.). Demographic and Clinical Comparison of Obsessional Followers and Offenders with Mental Disorders. American Journal of Psychiatry.
Mullen, P.E. & Pathe, M. (1997). The Impact of Stalkers on their Victims. British Journal of Psychiatry.
Murdock, "The Use and Abuse of Computerized In format ion" 44 ALB L Rev 589-619 (1980).
Ogilvie, E. (2000).Cyber Stalking, Trends and Issues in Crime and Criminal Justice, 166. Available at http://www.aic.gov.au
Sinwelski, S.A. & Vinton, L. ,Stalking: The constant threat of violence. Affilia: Thousand Oaks 2001 ed.
Stephanie Blumstein, The New Immunity in Cyber Space: The Expanded Reach of Communications Decency Act to the Libelous “ Reposter”, Boston university Journal of Science and Technology law, Summer 2003; www.westlaw.com
Suzi Seawell (et al), Cyber Defamation: Same old story or brave new world? : http://gsulaw.gsu.edu/lawand/papers/su98/defamation
Tim Ludbrook, Defamation and the Internet- Where we are and where we are going, Entertainment Law Review, 2000: www.westlaw.com
Tjaden, P. & Thoennes, N. (1997). Stalking in America: findings from the National Violence Against Women Survey. National Institute of Justice and Centres for Disease Control and Prevention. Washington DC. Available at http://www.ncjrs.org
Vipin V. Nair, Dark deeds remain in the dark, available on the website-(http://www.thehindubusinessline.com/ew/2003/09/10/stories/2003091000080100.htm)
Westrup, D., Fremouw, W.J., Thompson, R.N. & Lewis, S.F. The Psychological Impact of Stalking in Female Undergraduates. Journal of Forensic Sciences, (1999).
Yatinder Singh, cyber crime ,(Vol. 44, 2002), Journal of India Law Institute, New Delhi
Zona, M.A., Sharma, K.K. & Lone, J. “A Comparative Study of Erotomanic and Obsessional Subjects in a Forensic Sample”, Journal of Forensic Sciences, 1993 ed.

Books referred

Charlotte Waelde and Lilian Edwards (Ed.), law and the internet-a framework for electronic commerce, (2nd ed., 2000), Hart Publishing, Oxford
Chris Reed (Ed.), computer law, (5th ed., 2000), Blackstone Press, London
Gerald R. Ferrera (et al), cyber law-text and cases, (2nd ed.) Thomson south -western west, USA
Graham J H Smith, internet law and regulation, (3rd ed. 2002), Sweet and Maxwell, London
Rodney D. Rider, guide to cyber laws, (2nd ed. 2003), Wadhwa and Co., Nagpur
Sallie Spilsbury, media law, 2000, Cavendish Publishing, London.

Legislations used

Information technology act, 2000.
Indian Constitution
Indian Penal Code, 1872.

Websites used

www.manupatra.com
www.westlaw.com
www.thehindubussinessonline.com
www.ncjrs.org
www.gsulaw.gsu.edu
www.cbsnews.com
www.rediff.com
www.aic.gov.au
www.acs.ucalgary.ca

[1] .Mishra,RC , “ Cyber crime: impact in the new millennium”, 2002 ed., p.53

[2] Laughren, J, Cyberstalking Awareness and Education. Available on - http://www.acs.ucalgary.ca/~dabrent/380/webproj/jessica.html, last visited on ( 02-11-2007)

[3] Mishra,RC , Cyber crime: impact in the new millennium, 2002 ed., p.54

[4] Jewkeys, Yuonne (ed.), Dot.coms Crime, devience and identity, theft on the internet,,p.108

[5] Ogilvie, E. (2000).Cyberstalking., Trends and Issues in Crime and Criminal Justice, 166. Available at http://www.aic.gov.au

[6] Jewkeys, Yuonne (ed.), Dot.coms Crime, devience and identity, theft on the internet,,p.109

[7] Jewkeys, Yuonne (ed.), Dot.coms Crime, devience and identity, theft on the internet ,p.109

[8] id

[9] id at p.110

[10] id at p.110

[11]

Meloy, J.R. & Gothard, S.). Demographic and Clinical Comparison of Obsessional Followers and Offenders with Mental Disorders. American Journal of Psychiatry, 152(2), 1995 ed., 258-26

[12] McCann, J.T. (2000). A Descriptive Study of Child and Adolescent Obsessional Followers. Journal of Forensic Sciences, 45(1), p.195-99

[13] Sinwelski, S.A. & Vinton, L. ,Stalking: The constant threat of violence. Affilia: Thousand Oaks 2001 ed..

[14] Goode, M., Stalking: Crime of the Nineties?., Criminal Law Journal, 19, 1995, p.21-31.

[15] Brownstein, A. (2000). In the Campus Shadows, Women are Stalkers as well as the Stalked, The Chronicle of Higher Education, 47(15),2002 ed., 40-42.

[16] Tjaden, P. & Thoennes, N. (1997). Stalking in America: findings from the National Violence Against Women Survey. National Institute of Justice and Centres for Disease Control and Prevention. Washington DC. Available at http://www.ncjrs.org

[17] Zona, M.A., Sharma, K.K. & Lone, J. “A Comparative Study of Erotomanic and Obsessional Subjects in a Forensic Sample”, Journal of Forensic Sciences, 1993 ed. 38,p. 894-903.

[18] For more details refer to - http://www.haltabuse.org/resources/stats/relation.shtml

[19] Westrup, D., Fremouw, W.J., Thompson, R.N. & Lewis, S.F. The Psychological Impact of Stalking in Female Undergraduates. Journal of Forensic Sciences, (1999), 44(3), pp.554-557.

[20] Mullen, P.E. & Pathe, M. (1997). The Impact of Stalkers on their Victims. British Journal of Psychiatry,”,pp. 12-17.

[21] http://www.usdoj.gov/criminal/cybercrime/cyberstalking.htm

[22] Keane Insight, What's wrong with our cyber laws? , Avaliable on - (http://www.expresscomputeronline.com/20040705/newsanalysis01.shtml)

[23] Sallie Spilsbury, MEDIA LAW, 2000, p.60.

[24] Malicious falsehood is primarily concerned with damage to profits or earnings caused by the publication of untrue statement or fact. It is immaterial whether the untrue statement causes damage to the claimant's reputation. If the untrue words are also defamatory then a claim for malicious falsehood is not excluded , although the courts will not allow the claimant to recover damages for both defamation and malicious falsehood for the same loss; Joyce v. Senagupta [1993] 1 All ER 897; Sallie Spilsbury, MEDIA LAW, 2000, p153.

[25] (1840) 6 M&W 105

[26] (1934) 50 TLR 581

[27] Supra n.5,p.108

[28]

[29]Cyberspace, 55 F. Supp. 2d at 745 (citing American Civil Liberties Union v. Johnson, 4 F. Supp. 2d 1029, 1032 (D.N.M. 1998); American Libraries, 969 F. Supp. at 171)); Eugene R. Quinn, Jr., The evolution of Internet Jurisdiction: What a long strange trip it has been, SYRACUSE LAW AND TECHNOLOGY JOURNAL, Spring, 2000: www.westlaw.com

[30] Chris Reed (Ed.), COMPUTER LAW, 5th ed., 2000, p.392.

[31] Ibid.

[32] Publishing of information which 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 deprave and corrupt persons who 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 which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.

[33] Defamation: - Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, of defame that person.

[34] Computer related crime, p.28 as quoted in R.K. Suri and T.N. Chhabra, Cyber Crime,p.398.

[35] Cyber Shakedowns on Rise, http://www.cbsnews.com/stories/2005/06/02/eveningnews/main699362.shtml (June2,2005)

[36] Walt Zwirko, Of Zombies and digital extortion, http://www.dallasnews.com/sharedcontent/dws/wfaa/wzwirko/stories/wfaa050525_wz_cc_security.2ae9ce98b.html ( May 25,2005)

[37] Acronym for Information Technology.

[38] Jim Puzzanghera, US lawmakers clamouring to regulate Internet", San Jos Mercury News 9th Apr 1999 available online from Lexis-Nexis.

[39] Linowes observes: the social and economic benefit of this increasingly sophisticated technology has been achieved through substantial loss of privacy. See, Linowes. Must Personal Privacy Die in the Computer Age (1973).

[40] See Murdock, "The Use and Abuse of Computerized In format ion"44 ALB L Rev 589-619 (1980).

[41] See Murdock, The Use and Abuse of Computerized In format ion 44 ALB L Rev 589-619 (1980).

[42] Art. 17: no one shall be subject to arbitrary or unlawful interference with his privacy, family, human or correspondence, nor unlawful attacks on his honour and reputation.

[43] Art.12 is almost worded like Art. 17.

[44] For this opinion see, Kesavananda Bharti v State of Kerala, AiR 1973 SC 1461; A.D.M Jabalpur v 5. Situkla, AIR1976 SC 1207; J. C.Varghesc v Bank of Cochin, AIR 1980 SC 470.

[45] 429 US 589 (1977). In this case New York State had planned to frame a ^Literized list of the users of certain prescriptive drugs. The security system provided a lock wire fence, an alarm system and off line reading of the data files and rapes-which would prevent outsiders from reading or using rhe information.

[46] See, Hardy, "The Proper Legal Regime For Cyber Space" 55 Utah L Rev 993, 996-1006, 1044-1048 (1994); Cuterrca, "Computer Network. Libel and the First Amendment", 1 1 Computer LJ 555. 682-583 (1992) and Charles, "Computer Bulletin Boards and Defamation; Who Should be Liable and under What Standard'"' 2 Jl. and Tech 121,146-150 (1987).

[47] 414 F Supp. 1257, 1270 (M.D. Tenn 1976), affd percunan, 572 F. 2d 1 189 6th cir. (1978).

[48] Levin, Automation and the Law of Torts, 1964 Mull. 35. 39.

[49] 2I3F. Supp. 352 (D. Or 1962). affd 327 F.2d 638 (9th cir.) Cert, denied.377 U.S. 929 (1964).

[50] See, Mst. Ramdhara v. Mst. Phulwatibai 1970 Cr LJ 286

[51] Sec. David Enscl, ISP on the Hook, Communications Law, Vol. 4, 1999 at 140

[52] The case was decided on 26 March 1999.

[53] The Internet Service Provider is not liable where he proves that (i) in operating or providing any equipment, system or service by means of which a statement is retrieved, copied, distributed or made available in electronic form [s, 1(3He)]; or (ii) as the operator of, or provider of access lo, a communication system bv means of which a statement is transmitted, or made available, by a person over whom he has no effective control [s. l(3)(e)]; (iii) it took reasonable care in relation u publication of the statement complained of [s. 1(1 )(6)] and (iv) it did not know, lad no reason to believe, that in what respect it caused or contributed to the publication of a defamatory statement [s. l(l)(c)].

[54] Vipin V. Nair, Dark deeds remain in the dark, available on the website-

( http://www.thehindubusinessline.com/ew/2003/09/10/stories/2003091000080100.htm)

[55] Gopika Vaidya-Kapoor, Byte by Byte. available on the website - http://www.rediff.com/netguide/2003/feb/18crime.htm


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