CYBER CRIMES & THE LAWS GOVERNING THEM

INTRODUCTION

In 21^st Century the world is revolutionizing itself with help of IT (Information and Technology), wherein, the world is going through a transformation with regard to many sets of evolutions related to e-business, e-mails, e-shopping, e-dating and even e-transfers. Nevertheless, cyber-crimes are the ferns that grows prima-facie alongside worldwide. Cyber-crimes as the name suggests (cyber) refers to the scams and malafide intent to cause harm to the other party vide computer[1] means. As a matter of fact such crimes can be participated from any part, place, means and are committed in a cyber-space (“virtual” world created by links between computers, Internet-enabled devices, servers, routers, and other components of the Internet’s infrastructure).[2] In  STATE V. JAYANTA KUMAR DAS[3], it was observed that “obscenity is an offence when it is published or transmitted or caused to be published in any electronic form. Transmission may be address to an intendent recipient for his personal use”.

In order to shield and safeguard the interests of public and to punish the wrong-doers IT (Information and Technology) Act 2000, came into existence. IT Act 2000 consists of IT Rules and Regulations, that can also be termed as “CYBER-LAWS”.  Cyber-laws encompass laws relating to: · Cyber Crimes  · Intellectual Property · Data Protection and Privacy · Electronic and Digital Signatures. Cyber Laws are a broad set of rules which extensively covers a wider area including freedom of speech and expression, electronic defamation, access to modus-operandi of Internet and vastly covers ad-interim penalty.

EVOLUTION OF CYBER LAW & CRIMES IN INDIA

1. The UN’s General Assembly recommended the first IT Act of India which was based on the “United Nations Model Law on Electronic Commerce” (UNCITRAL) Model.
2. IT Act 2000 is an outcome of the Resolution dated 30^th January 1997.
3. The Bill was drafted in 1998 by DOE (Department of Electronics) with respect to the suggestions provided by World Trade Organisation (WTO).
4. Finally, IT (Information and Technology) Act, came into force in year 2000.

Nowadays, a mobile phone is the basic necessity for each and every person, whereas, under the ambit of IT Act “A mobile phone can be termed as a computer under IT act 2000” as stated in SYED ASSIFUDDIN & ORS V. STATE OF ANDHRA PRADESH & ANR.[4]

LAWS, STATUTES & RULES GOVERNING CYBER-CRIMES IN INDIA

Cyber-crimes have ushered its’ way into a new revolution, resulting to inculcation and involvement of many Statutes and Rules namely: –

1. IT (Information and Technology) Act 2000;
2. IT (Information and Technology) Rules 2009[5], 2011[6], 2018[7] and 2021[8];
3. IPC (Indian Penal Code) 1860;
4. Cr. PC (Criminal Procedure Code) 1973;
5. Constitution of India 1951;
6. NDPS (Narcotic Drugs and Psychotropic Substances) ACT 1985;
7. ARMS (Amendment) Act 2019;
8. INDIAN EVIDENCE ACT 1872;

Nevertheless, withstanding to these Statutes and Rules the hierarchy of the Judicial system in India have been left spellbound, in order to provide justice to the victims vandalised by the cyber-criminals, similarly with respect to the case of SMC PNEUMATICS (INDIA) Pvt. Ltd. V. JOGESH KWATRA[9] where the plaintiff was a victim of Cyber-Defamation, wherein, it was held that “Due to the absence of direct evidence, the court was not in a position to accept even the strongest evidence. The court also restrained the defendant from publishing, transmitting any information in the Cyberspace which is derogatory or abusive of the plaintiffs”.

CYBER-CRIMES AND ITS’ TYPES

Provided that the crimes that are committed in todays’ era are inoculated like Pandemic, hence, its’ not easy to distinguish the gap, whether the crime is conventional or cyber, in order to bridge this gap, the Cyber-crimes are henceforth categorised into these categories: –

1. Crimes against Person
2. Crimes against Person’s Property
3. Crimes against Government
4. Crimes against Society at Large

CRIMES AGIANST PERSON:

As the name itself suggests these are the crimes that are initiated against the individual as an identity such as: Hacking, Carding (fake ATM cards), Cracking (breaking into one’s cyber-space), E-mail Spoofing (fake address of e-mail origin), Cheating and Fraud, Cyber-stalking, Cyber-Defamation (posting or commenting vulgarity), Phishing, Dissemination of Obscene Material (child pornography, indecent exposures, etcetera.) and the list goes so on. 

CRIMES AGIANST PERSON’S PROPERTY:

Onset of Globalization and Liberalization, wherein, there is a steep growth in the electronic trading, business and dealing, a rational person is using computers with internet access to store and operate such information electronically in lieu of books of accounts or hand written paper-work. Such information can either be tampered or can be stolen and perhaps can be misrepresented, whereas, in STATE V. YOGISHA[10] e-mail was considered as property as it belongs to a particular person with unique password that can only be operated by its’ owner.

Nevertheless, in the case of YAHOO!, INC. V. AKASH ARORA[11]wherein, the defendant has developed a domain name YAHOOINDIA.COM that was quite similar as that of Yahoo, this was reported as cyber-crime on Intellectual-Property and thus Akash Arora was restrained from using the trademark of YAHOOINDIA.COM.

• INTELLECTUAL PROPERTY: (software-piracy, mark violation, infringement of patents, copyright, designs, theft of computer code sources etcetera.)
• CYBER VANDALISM: (information tampering either virtually or physical harm to computer)
• HACKING OF CYBER-SPACE: (may include loss of data or result in financial gain to hacktivists)
• CYBER-TRESSPASS: (operation of computer without authorisation)
• TRANSMISSION OF VIRUS: (affect data on computer)

CRIMES AGAINST GOVERNMENT:

The crimes that intend to threaten the government through internet at an International level computes of such crimes for example:

• CYBER-TERRORISM: (abatement of citizens to cause chaos, hate websites, e-mails etcetera.)
• CYBER-WARFARE: (politically motivated movement to create chaos)
• DISTRIBUTION OF PIRATED NATIONAL SOFTWARE: (destruction of data and official records of government)
• POSSESSION OF UNAUTHORISED INFORMATION: (It is very easy to access any information by the terrorists with the aid of internet and to possess that information for political, religious, social, ideological objectives.)

CRIMES AGAINST SOCIETY AT LARGE:

Unlawful Acts done to cause harm or affect to Public at large constitutes these crimes such as:

• CHILD-PORNOGRAPHY
• CYBER-TRAFFICKING: (e-trafficking in drugs, human beings, arms weapons etc. which affects large number of persons. Trafficking in the cyberspace is also a gravest crime)
• FIANANCIAL CRIMES: (constitutes crimes such as fraud with cards, contractual crimes, sending of bogus to the users by sending e-mails)
• FORGERY: (sharing false stamp papers, currency etc.to public at large)

PENALTIES FOR CYBER-CRIMES UNDER IT (INFORMATION & TECHNOLOGY) ACT 2000:

S.NO	SECTIONS	OFFENCES	PENALTY
1.	43	Damage to Computer, Computer System etc.	compensation for the damage caused.
2.	69A	Power to issue direction for blocking from public access of any information through any computer’s resources.	Imprisonment < 7 Years/fine
3.	69B	Power to authorize to collect traffic information or data and to monitor through any computer’s resources for cyber security.	Imprisonment < 3 Years/fine
4.	70	Un-authorized access to protected system.	Imprisonment < 10 Years/fine
5.	71	Penalty for misrepresentation.	Imprisonment < 2 Years/fine
6.	72	Breach of confidentiality and privacy	Imprisonment < 2 Years/fine
7.	73	Publishing False digital signature certificates	Imprisonment < 2 Years/fine
8.	74	Publication for fraudulent purpose.	Imprisonment < 2 Years/fine
9.	75	Act to apply for contravention or offence that is committed outside India	Imprisonment < 2 Years/fine
10.	77	Compensation, confiscation or penalties for not to interfere with other punishment.	Imprisonment < 2 Years/fine
11.	85	Offences by Companies.	Persons in charge of the company shall be punished.
PENALTIES FOR CYBER-CRIMES UNDER IPC (Indian Penal Code) 1860;
13.	503	Sending threatening messages by e-mail.	Imprisonment < 3 Years/fine
14.	499	Sending defamatory messages by e-mail.	Imprisonment < 2 Years/fine
15.	420	Bogus websites, Cyber Frauds.	Imprisonment < 2 Years/fine
16.	463	E-mail Spoofing	Imprisonment < 2 Years/fine
17.	383	Web Jacking	Imprisonment < 2 Years/fine
18.	500	E-mail Abuse.	Imprisonment < 2 Years/fine
19.	507	Criminal intimidation by anonymous communications.	Imprisonment < 2 Years

DATA PROTECTION, PRIVACY & CYBER LAW:

Data is defined under section 2(o)[12] of IT Act 2000. Information and technology Act 2000 is not a data protection legislation as it dealing with a per-se act syndrome, provided that, it is tangled within the scope of confidentiality, privacy, digital signatures, cyber-space, cyber-offences and public key infrastructures. There is no such bylaw inoculated in this Statute that may offer data protection. Thus, it lacks strength from its’ core.

“As the emergence of crimes in cyber space also the laws relating to privacy also getting firm day by day the concept of data protection is also getting its recognition. The law does not determine what privacy is, but only what situations of privacy will be afforded legal protection. Confidentiality may be covered under law of privacy also, disclosing any one’s confidential information may be his breach of privacy.

Privacy issues relating to personal data arise from

· insecure electronic transmissions,

 · data trails and logs of email messages,

· online transactions and the

· tracking of web pages visited.”[13] 

CONCLUSION: “PREVENTION IS ALWAYS BETTER THAN CURE” The Cyber Law is governed by the IT Act and the Rules thereunder in addition to this, one may refer to the provisions of the Indian Penal Code, 1860 as well as other statutes that are to be tagged along, when the IT Act is unable to provide for any specific type of offence or if it does not contain exhaustive provisions with respect to an offence. Nevertheless, the Cyber Law is still not competent enough to tackle Cyber-Crimes that exists. The Cyber-Crimes are evolving constantly and new kinds of Cyber Crimes encompasses the Cyber Law hemisphere

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[1]any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network; SECTION 2(I) of IT ACT 2000

[2] https://www.britannica.com/topic/cyberspace

[3] T.R.No.21/2013

[4] 2005 Cri LJ 4314

[5] PROCEDURE AND SAFEGUARDS FOR BLOCKING FOR ACCESS OF INFORMATION BY PUBLIC

[6] REASONABLE SECURITY PRACTICES AND PROCEDURES AND SENSITIVE PERSONAL DATA OR INFORMATION

[7] INTERMEDIARY GUIDELINES

[8] INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE

[9] CM APPL. No. 33474 of 2016

[10] C.C. NO. 3700686/PS/2009

[11] 1999 PTC (19) 201 Delhi

[12] a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;

[13] http://stmarysguntur.com/wp-content/uploads/2018/04/unit_VI-_IPR.pdf

AUTHOR: AKSHIT RASTOGI, ASSOCIATE, DUCTUS LEGAL FIRM, NEW DELHI