June 05, 2017

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Cybercrime And The Information Technology Act

- Aditi More, Senior Executive – (Legal) [ Wockhardt Limited ]


With the advent of technology and e-commerce, we have come across various means and modes to easily achieve what we require with the mere click of a button, be it house hunting or buying grocery. Increase in the use of computers has led to the expansion and growth of information technology, as a result of which people were introduced to the “Internet”. However, as Internet became the most preferred mode for transactions, accessing data, information storage, research, and so on, it also led to various cybercrimes which were a result of misuse of technology and cyberspace.

Cybercrimes may be broadly described as crimes committed through the misuse of computers and Internet where a computer can be used as a tool or target. Examples of a computer being used as a target are Hacking, transmitting a virus, and so on. Similarly, examples of a computer being used as a tool are credit card fraud, cyber terrorism, and intellectual property crimes.

Importance of cyber security

As rightly said by Fred Langa,

“Just as drivers who share the road must also share responsibility for safety, we all now share the same global network, and thus must regard computer security as a necessary social responsibility. To me, anyone unwilling to take simple security precautions is a major, active part of the problem.”

Initially, there was no statutory law in India that regulated cyberspace. With ever-increasing cybercrimes, it was important to have preventive action and necessary statutory laws, rules, and regulations in place for the protection of society at large against such crimes. Hence, the Parliament passed the “INFORMATION TECHNOLOGY ACT, 2000” in India, which governs cyber laws (including e-commerce and e-banking) and provides punishments and penalties for cybercrimes. This Act was further amended in 2008 (“IT Act”).

The main objective of the IT Act provided in the preface is “to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as ‘electronic commerce’, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the government agencies and further to amend the Indian Penal Code; the Indian Evidence Act, 1872; the Bankers’ Books Evidence Act, 1891; and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.”

Some important provisions in the IT Act governing precautionary measures taken for the prevention of cybercrimes are covered under chapters IX, X, and XI.

Chapter IX of the IT Act specifies penalties and adjudication pertaining to various offenses, such as penalties for damage to computers, computer systems, compensation for failure to protect data, penalty for failure to furnish information, return, residuary penalty, and so on. This chapter further provides the power to adjudicate to an officer appointed by the central government not below the rank of a Director to the Government of India or an equivalent officer of the state government.

Chapter X provides for the establishment of the Cyber Appellate Tribunal (CAT). An aggrieved person can make an appeal against the orders of the adjudicating officer as aforesaid to the CAT. Furthermore, any person aggrieved by any decision or order of this tribunal may file an appeal to a high court on any question of fact or law arising out of such order.

Chapter XI of the Act provides punishments for various offenses, such as tampering with computer source documents, offenses related to computers, identity theft, cyber terrorism, and so on. These offenses shall be investigated only by a police officer not below the rank of the Deputy Superintendent of Police.

A landmark judgment was given by the Supreme Court of India in Shreya Singhal vs. Union of India, wherein the validity of various provisions of the IT Act was considered, particularly the constitutional validity of Section 66A of the IT Act. Section 66A of the IT Act provides punishment for sending offensive messages through communication services and is reproduced as follows:

“Any person who sends, by means of a computer resource or a communication device,

(a) any information that is grossly offensive or has menacing character, or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,

(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 messages shall be punishable with imprisonment for a term which may extend to three years and with a fine.

Explanation:- For the purposes of the section, term “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource, or communication device including attachments in text, image, audio, video, and any other electronic record, which may be transmitted with the message.

The Supreme Court struck down Section 66A as unconstitutional being violative of Article 19(1) of the Constitution. However, the court upheld the validity of:

(i) Section 69A of the IT Act pertaining to the power to issue directions for blocking for public access of any information through any computer resource,

(ii) Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009, and

(iii) Section 79 of the IT Act relating to intermediary liability subject to a caveat that intermediaries in India will take action only on court order or on order of governmental agency considering that deciding the legality of millions of requests made will not be feasible.

In another landmark judgment given in Ansar P.V. vs. P.K. Basheer & Ors. , it was held that the general law relating to secondary evidence is not applicable to electronic evidence by a three-judge bench in the Supreme Court and the parliamentary attack case (State vs. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600) was overruled to the extent pertaining to electronic record. Generalia specialibus non derogant, special law will always prevail over general law. Any documentary evidence by way of an electronic record can only be proved in accordance with the procedure provided under Section 65B of the Evidence Act.

The bench explained the position of law by holding that

“An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which the secondary evidence pertaining to the electronic record is inadmissible.”

Some measures that can be used for preventing cybercrime include the prevention of the disclosure of personal information via email or otherwise, prevention of the disclosure of confidential debit/credit card details to unsecured sites, and installation of an updated anti-virus in place. Furthermore, lawmakers should modify old laws or bring in new laws and regulations to ensure that legal safeguards against cybercrime are kept abreast and updated with the developing and emerging phases of technology.

One cannot predict the future, especially in the case of cyberspace, considering the ever-evolving and growing technological development worldwide. An increase in information technology is directly proportional to an increase in crimes pertaining to cyberspace, and it is important that adequate safeguards are in place to ensure proper usage of technology for legal and moral purposes or to benefit the society at large.

Disclaimer – The views herein are those of the author and not of the Wockhardt group.

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