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E-commerce; legal steps taken against the misuse of this online media

The problem of jurisdiction in cyberspace is extremely complex especially with the expansion of trade and commerce in the new media. One has to examine section key models and concepts that are necessary constituents of the issue and perhaps contrast them against an overview of methods and solutions.  The Information Technology Act has provided a legal framework for smooth conduct of e-commerce facilitating and regulating electronic commerce.  It has tackled the following legal issues associated with e-commerce:

(a) Requirement of writing, as an obligation

(b) Prerequisite of a document;

(c) Requirement of a signature; and

(d) Requirement of legal acceptance of electronic messages, data, records and documents to be admitted as evidence in a court of law.

The main purpose of the Act is provision of legal identification for transactions carried out by means of electronic data interchange and trade carried out in the electronic media, commonly referred to as e-commerce, which involve usage of alternatives to paper-based methods of communication and records information to assist electronic filing of documents with the Government bureaus. Under the Act, the Central Government has the power to prescribe the security procedure in relation to electronic records and Digital Signatures, the ‘Apex Authority’ is to manage the Digital Signature system which aims at promoting the growth of E- Commerce and E- Governance. The Central Government may employ a Controller of Certifying Authority [CCA] who shall exercise supervision over the activities of Certifying Authorities.  Certifying Authority refers to a person who has been provided with a license to issue a Digital Signature Certificate all of which as mentioned above is done to regulate E-commerce.

Offences made compoundable to secure E- commerce include:

Section 72: If an individual is found in possession of some confidential information like electronic record, book, register, correspondence and he is found broadcasting and disclosing it to any third party without the permission and consent of the individual so concerned, then he shall be punished with imprisonment for a term which may be up to two years, or a fine which may extend to One Lakh rupees, or with both.

Section 72A: If any person while given that, he/she is providing services under the terms of the contract, has secured access to any material containing personal information about another person, with the intention to cause wrongful loss or wrongful gain released the information, without the person’s consent or in breach of a lawful contract, shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees or with both.

 

Under the Act, Section 43(A) is concerned with handling of sensitive personal data or information with reasonable security practices and procedures. This section has been so inserted to protect sensitive personal data or information possessed, dealt or handled by a body corporate in a computer resource which such body corporate [Company] owns, controls or operates. If such body corporate is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, it shall be liable to pay damages by way of compensation to the individual so affected.

Computer related offences under Section 66 has been amended as mentioned above, now if an offence is committed fraudulently with malicious intent then punishment is for a term which may extend to two years or a fine which may extend to Rs 5 lakhs or with both.

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In the era of the Cyber World, the Internet provides Individuals an equal opportunity to access data/ information; and with the high usage of technology, misuse of the cyberspace amplified. As the uses and applications of the technology develop, understanding of the technology grows.

With the growth in the extensive usage of social media, cyberspace has provided Individuals around the globe a wide platform to express their views. But should this electronic media be an arena to disrepute anyone?

ELEMENTS OF DEFAMATION

• Plaintiff to prove publication of the defamatory statement, and that it refers to the Plaintiff
• Prove that the Statement is defamatory
• The said statement must be false and untrue and must be made with malicious intent

 

However if the statement is true and is made in Good faith and in Public interest, it fails from being a defamatory statement.

The Indian Penal Code solely talks of defamation.

Section 499 IPC: 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, to defame that person. Explanation 2.— It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Section 500 lays down the punishment in such cases:

Whoever defames another shall be punished with simple imprisonment for a term, which may extend to two years, or with fine, or with both.

Can a company be held responsible for its employees’ actions? The test that determines this is whether the actions were suited to the benefits of the company, the employee would be held vicariously liable if he were promoting his own interests. India is not yet a signatory to the Council of Europe’s Convention on Cyber Crime, formulated by the EU, globally; around 43 nations have signed this treaty addressing the issues of cross-border terrorism.

Asia’s first cyber Defamation case was filed in India, in the case of SMC Numatics Ltd. v. Jogesh Kwatra. Defamatory e-mails were said to be sent by the defendant to the top management of SMC Numatics, who has, since been retrained from communicating with the Plaintiff. This order of the Delhi High Court holds extensive significance since it was the first time an Indian Court recognised the issue of Cyber defamation, and took action against it.

Section 66A of the IT Act, 2000: If any person sends by means of a computer resource or a communication any content which is grossly offensive or has a menacing character or which is not true but is sent to create nuisance, annoyance, criminal intimidation, hatred or ill will etc shall be imprisoned for an imprisonment term which may be up to two years combined with a fine. This section has been struck down; however a few other sections have been amended and added to curb issues relating to Cyber Defamation.

Section 68(A) has been proposed for providing modes and methods for encryption for secure use of the electronic medium. This principle has been proposed for safer usage of the electronic medium. Section 69, has been amended to take care of the concerns of the Ministry of Home Affairs regarding the safety, sovereignty and integrity of India and further preventing stimulation to the commission of any cognizable offence. This provision relates to the authority/power to issue instructions for interception or monitoring or decryption of any information through any computer resource, which stands rightfully amended.

Section 67 of the Act is amended to diminish the term of imprisonment for publishing or transmitting obscene material in electronic form to three years from five years and there is an increase in the fine thereof from Indian Rupees 100,000 (approximately USD 2000) to Indian Rupees 500,000 (approximately USD 10,000). A series of new sections have been inserted as Sections 67 A to 67C. While Sections 67 A and B insert penal provisions with respect of offenses of publishing or broadcasting of material containing sexually explicit act and child pornography in electronic form, section 67C deals with the obligation of an intermediary to preserve and retain such information as may be specified for such duration and in such manner and format as the central government may prescribe.

Today appreciation of the need for legislation and what is required in terms of its structure and content has changed

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Free speech and the Internet; analysing Section 66A IT,2000

Conventional legal structures have had great difficulty in keeping pace with the brisk growth of the Internet and its impact throughout the world.  The Internet has tested the limits of regulation, Governments across the world eagerly seem accept the conception that cyberspace can’t be governed. This perception stands miscalculated, underestimating the power governments and businesses posses to change the way things work. Multiple international organisations are currently working on projects that are probable to radically influence the course of domestic bylaws and regulations in areas pertinent to electronic world. This International work must not only assist the Indian set up to the nations’ competitive advantage, but also keep India in compliance with international norms, ensuring that the economic, social and cultural benefits of new technology are maximised. As soon as you enter the virtual world, you leave footprints that are traceable, now the question that arises is- when does communication over the Internet mete out or threaten to impose adequate damage on its recipient that it ceases to be protected by the Freedom of Speech bar set out in the Indian Constitution?

66A OF THE INFORMATION AND TECHNOLOGY ACT, 2000

Section 66A of the IT Act, 2000: If any person sends by means of a computer resource or a communication any content which is grossly offensive or has a menacing character or which is not true but is sent to create nuisance, annoyance, criminal intimidation, hatred or ill will etc shall be imprisoned for an imprisonment term which may be up to two years combined with a fine.

The court in the Singhal Case struck down in its entirety, Section 66A of the IT Act, 2000 being violative of Article 19(1)(a) and not saved under Article 19(2). The Preamble of the Constitution of India also articulates of liberty of thought, expression, belief, faith and worship stating that India is a sovereign democratic republic. Nonetheless it is needless to state that when it comes to democracy, liberty of thought and expression is of paramount and chief implication under the constitutional scheme. Nonetheless the Supreme Court in striking down Section 66A has left the nation affirmative, oppressive censorship law that this country has ever witnessed. It has further introduced imperative procedural safeguards to the blocking rules and to the intermediary liability; it has made the provisions more speech protective than they were earlier.  “It is clear that Section 66A, arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right,” the court said, in its ruling, addition to which it stated that the law “was cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net.”

The Supreme Court has rightly upheld “Thought control is a copyright of totalitarianism, and we have no claim to it. It is the function of the Government to keep the citizen falling into error; We could justify any censorship only when the censors are better shielded against error than the censored.”

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Where submission of information is demanded in writing or in the type written or printed form, it is now sufficient and in compliance of law, if the same is sent in an electronic form.  Further, if any statute seeks and provides for affixation of signature in any deed, the same can be done by means of Digital Signature. Similarly, the filing of any form, submission or any other documents with the Administrative Authorities and issue or grant of any license, permit, approval and any receipt acknowledging payment can be performed by the Government offices by the usage of electronic form. Retention of documents, data or information as provided in any regulation, can be done by maintaining electronic records.  The Act, however, affirms that no Ministry or Department of Central Government or the State Government or any Authority established under any law can insist and claim upon acceptance of document only in the form of electronic record.

Under the Act, the Central Government has the power/ authority to stipulate the course of action in relation to electronic records and Digital Signatures securing the Online media, considering the character of the transaction, the level of sophistication of the Parties with reference to their technological aptitude and capacity, the volume/size of transactions and the procedures in general used for similar types of transactions or communications.

DIGITAL SIGNATURE

Any individual may make an application to the Certifying Authority requesting the issue of Digital Signature Certificate. The Certifying Authority while issuing such certificate shall certify that it has complied with the provisions of the Act.  The Certifying Authority has to ensure that the subscriber (i.e., a person in whose name the Digital Signature Certificate is issued) holds the private key corresponding to the public key listed in the Digital Signature Certificate and such public and private keys constitute a functioning key pair. The Certifying Authority has the power to suspend or revoke Digital Signature Certificate

If any person without the acquiescence of the title-holder, accesses the owner’s computer, computer system or computer net-work or downloads copies or any extract or introduces any computer virus or damages computer, computer system or computer net work data etc. He/she shall be liable to pay damage by way of compensation not exceeding Rupees One Crore to the person so affected.   In order to facilitate governance and adjudication, the Central Government may appoint any officer, not below the rank of Director to the Government of India or any equivalent officer of any State Government, to be an Adjudicating Officer. The Adjudicating Officer while trying out cases of the above mentioned nature shall consider the amount of gain of unfair advantage or the amount of loss that may be suffered by a person. The aforesaid provisions were not incorporated in the Information Technology Act, 2000 instead were suggested by the Select Committee of Parliament.

Under the Act, the Central Government has the power to prescribe the security procedure in relation to electronic records and Digital Signatures, the ‘Apex Authority’ is to manage the Digital Signature system which aims at promoting the growth of E- Commerce and E- Governance. The Central Government may employ a Controller of Certifying Authority [CCA] who shall exercise supervision over the activities of Certifying Authorities.  Certifying Authority refers to a person who has been provided with a license to issue a Digital Signature Certificate all of which as mentioned above is done to regulate E-commerce.

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The Information Technology Act, 2000 provides for fundamentally economic offences or crimes in the medium that are concurrent and linked to economic loss or injury. Today where most of the work is done by the computers, our entire efficiency and national data was is at the risk of being tampered with, by malicious hackers and hence it becomes important to secure data and prevent Cyber crimes.

COMPUTER EMERGENCY RESPONSE TEAM [CERT]

The amended Act of 2006 presents an Indian Computer Emergency Response Team to take action as a central agency with respect to Critical Information Infrastructure for coordinating all actions relating to information security exercises, procedures, strategies, guidelines for incident prevention, response and reporting. CERT has been active since January 2004. CERT-In is the national nodal agency to act in response and counter, computer security offences as and when they occur. In the recent Information Technology Amendment Act 2008, CERT-In has been selected to serve as the national agency to execute compilation/collection, examination and dissemination of information on cyber incidents in the area of cyber security.  They must forecast and estimate cyber crimes, and alert to such cyber security incidents. Issuing guidelines, procedures for handling cyber security incidents, co ordination of cyber incidents response activities – must be provided for by CERT

 

AMMENDMENTS; PREVENTION OF CYBER CRIMES

A ‘fresh’ Section 68(A) has been proposed for providing modes and methods for encryption for secure use of the electronic medium. This is a guiding principle, proposed for safer usage of the electronic medium. Section 69, has been amended to take care of the concerns of the Ministry of Home Affairs regarding the safety, sovereignty and integrity of India and further preventing stimulation to the commission of any cognizable offence. This provision relates to the authority/power to issue instructions for interception or monitoring or decryption of any information through any computer resource, which stands rightfully amended.

A new section 79 A32 (Examiners of Electronic Evidence) has been added, taking the EU Directive on E-Commerce 2000/31/EC issued on June 8th 2000  as a guiding document. The objective of the provision is to notify the examiners of electronic evidence by the Central Government, intended to help and assist the Judiciary/Adjudicating officers in handling technical issues. Section 79 has been revised and amended to bring-out unambiguously; explicitly the degree of liability of intermediary in certain cases.

Inclusion of social offences like pornography are overlapping due to the existing provisions in the Indian Penal Code casing and covering pornography. Pornography, although has not been defined under the Penal code, section 292 evidently states that “a book, pamphlet, paper, writing, drawing, painting representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect,” Addition of the  provision forbidding and banning child pornography may perhaps be a case of ‘over legislation’ considering the existing ban on pornography as such; both in the Information Technology Act, 2000 (section 67) as well as the Indian Penal Code, 1860 (section 292). While Sections 67 A and B interleave penal provisions in respect of offenses of publishing or transmitting of material holding sexually explicit act and child pornography in electronic form, section 67C concerns with the responsibility and obligation of an intermediary to preserve and keep hold of such data.

The above are few of the concerned measures adopted over time, to make the Internet more secure and to ensure easy web governance.

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Steps taken in furtherance of Data Protection and Information Security

The main objective of the Information Technology Act, 2000 is to offer legal identification and recognition to transactions carried out by means of electronic statistics/ data exchange and other means of electronic communication, universally referred to as e-commerce,   substituting paper-based methods of communication and depository of information to smooth the progress of electronic filing of documents with the Government bureaus. The Act, apart from India, has extra-territorial jurisdiction to swathe any offence or infringement or contravention committed outside India by any person.

The Act shall not apply to the following categories of operation:  (a) Any Negotiable Instrument; (b) A Power of Attorney; (c) A Trust; (d) A will including any other testamentary disposition; (e) Any contract for the sale or conveyance of immovable property; and (f) Any other documents or transactions as may be decided by the Central Government.

The economic world of cyberspace at the beginning of the 21st century depends on mutual confidence: confidence on the part of the buyer and seller to conform to legitimate expectations. E-commerce has become an increasingly significant segment of the global economy. Including voluntary codes of conduct, the prerequisite of private adjudication for the resolution of disputes, escrow accounts, agreements between buyers, sellers and credit card companies, amongst others form a part of this rising global virtual economy.

Technology reduces and repeatedly may eliminate the need for physical contact in the formation of legally significant relationships between parties or between an actor and the state acting as regulatory valve.

 

JURISDICTION OVER CYBERSPACE

The Act prescribes the Central Government the authority to lay down the security procedure in relation to electronic records and Digital Signatures, making an allowance for the nature of the transaction, the rank of sophistication of the Parties with reference to their technological capacity, the degree of transactions and the procedures used in broad-spectrum used for similar types of transactions or communications. If any individual without the authorization of the owner, accesses the owner’s computer, computer system or computer net-work or downloads copies or any extract or introduces any computer virus or damages computer, computer system or computer net work data etc. He/she shall be accountable and liable to pay damage by way of compensation not exceeding Rupees One Crore to the individual so affected. The Act authorises any subscriber (i.e., a person in whose name the Digital Signature Certificate is issued) to authenticate electronic record by attaching his/her Digital Signature.

LEGAL CONSEQUENCES

Fiddling with computer resource documents shall be punishable with imprisonment up to three years or fine up to Rs. 2 lakhs or with both. Correspondingly, hacking with computer system necessitates punishment with imprisonment up to three years or with fine upto Rs. 2 lakhs or with both.

Publishing of information/ particulars/ data, which is obscene in electronic form, shall be punishable with imprisonment up to five years or with fine up to Rs. 1 lakh and for second conviction with imprisonment up to ten years and with fine up to Rs. 2 lakhs.

DATA PROTECTION AND INFORMATION SECURITY

In view of recent apprehensions about the operating provisions in the IT Act related to “Data Protection and Privacy” in addition to contractual agreements between the parties the existing Sections (viz. 43, 65, 66 and 72A) have been revisited and more stringent provisions; amendments, have been incorporated in the Act. Notably amongst these are:

• Section 43(A) is associated to managing/handling of sensitive personal data or information with reasonable security practices and procedures. This section has been introduced to defend and protect sensitive personal data or information, dealt or handled by a body corporate in a computer resource which such company owns, is in command of or operates. If such body corporate is negligent in executing and maintaining reasonable security practices and procedures and in so doing causes wrongful loss or wrongful gain to any person, it shall be liable to pay damages by way of compensation to the individual so affected.
• Section 72 IT ACT, 2000: If a person is found in ownership and possession of some confidential information like electronic record, book, register, correspondence and he is found disclosing it to any third party without the consent of the person concerned, then he shall be punished with imprisonment for a term which may be up to two years, or a fine which may extend to One Lakh rupees, or with both.
• Section 72A IT Act, 2000: If any person is liable to abide while providing services and  under the terms of the contract, has attained access to any material containing personal information about another person, with the intent to cause wrongful loss or wrongful gain disclosed the information, without the person’s consent or in breach of a lawful contract, shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees or with both.

 

Right to speedy trial is a right which is granted to the accused in order to relieve him from criminal proceedings and to provide justice to the person who has suffered injuries. In common parlance, speedy trial means that the trial should be conducted in such an orderly and systematic manner that no one is deprived of his personal liberty. It is however to be noted that the right to speedy trial in India does not mean exaggerating the process of rendering justice, but it means and strives to remove the hurdles which come in the way of execution of justice. If the process of rendering justice is exaggerated then the accused and the claimant may not get proper chance to represent their case, which will ultimately lead to injustice being served.

Article 21 of the Indian constitution mentions about ‘Right to life and liberty’. Liberty is the term, of such a broad nature, that it includes right to get justice by execution of a fair trial. Right to speedy trial is the fundamental right mentioned in the fundamental legal document of England, Magna Carta. Thus every person who feels that his right to speedy and fair trial is infringed, can knock the doors of Supreme Court under Article 32 of the Indian constitution and can enforce his right. The Supreme Court is also bound to recognize the plea of the plaintiff and ensure justice to him.

Justice Krishna Iyer while dealing with the bail petition in Babu singh v. sate of UP, remarked, “Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ whatever the ultimate decision. Speedy justice is the component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished with a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”

This delay in the process of administration of justice can be because of various reasons. This can be grouped into two broad heads: Delays caused by Courts, and Delays caused by Advocates. Some of the important reasons ascertained for this are- Huge numbers of cases being undecided and the less number of judges available (compared to the cases) for deciding the matter in dispute, the adjournments which are granted by the courts on vexatious grounds, and the delay which is caused by the investigating agencies.

The right to speedy trial strives to achieve the below three ends:

• The minimum possible time for period or remand should be allocated
• Worry, anxiety, expenses and disturbance in conducting the trial should be minimal
• Undue delay may result in impairment of the disability of the accused to defend him.

Justice Bhagawati in Hussainara Khatoon case observed that, “the state cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. It is also the constitutional obligation of this court as the guardian of fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by enforcing necessary directions to the state which may include taking of positive action, such as augmenting and strengthening the investigation machinery, setting up new courts, building new court houses, providing more staff and equipment’s to the court, appointment of additional judges and other measures calculated to ensure speedy trial. The similar view was reiterated by the honourable Supreme Court in Khadra paharia v. state of Bihar, and State of Maharashtra v. Champalal Punjaji Shah. In the latter case, Justice Chinnappa Reddy observed that it is a prejudice to a man to be detained without trial. It is a prejudice to a man to be denied a fair trial.

Keeping the importance of speedy trial as the inevitable right available to the accused, it is suggested that ‘Right to Speedy Trial Act’ should be enacted in India, as prevalent in the United States of America. For this, the 221^st Law Commission of India Report should be taken into consideration. The need for this act is felt is because of the reason that there is no sifting observed in the administration of criminal justice in India. The right to speedy trial must also apply to post-trial criminal proceedings also, such as parole and probation hearings.

The guideline of natural justice is a result of custom-based law framework.  With the evolving time, the forces gave to the State have expanded. Presently, the State deals with the Government issues as well as exercises prefer business, enterprises and correspondence. The fundamental point of this rule is to make a check and adjust technique, essentially to keep the self-assertive utilization of force by the State.

In The Constitution of India, no place for the expression Natural Justice is utilized. Introduction of the constitution incorporates the words, ‘Equity Social, Economic and political’ freedom of thought, conviction, love… What’s more, balance of status and of chance, which not just guarantees reasonableness in social and conservative exercises of the general population additionally goes about as shield to people freedom against the subjective activity which is the base for standards of Natural Justice.

The word “natural justice” is mainly related with two rules: 1) Audi alteram partem. 2) Nemo judex in causa sua.

Audi alteram partem: It means the right to be heard. It can be said along these lines, that at whatever point there is a case under the steady gaze of an official courtroom, the accused and the respondent must have a privilege to be heard under the steady gaze of the court. So the charged likewise has a privilege to think about the body of evidence which is made against him, the confirmations which will be used against him and so forth so that he additionally gets an opportunity to substantiate himself as not guilty.

Nemo judex in causa sua: The meaning of this maxim is no one should be a judge of his own cause. As indicated by this rule the choice of any judicial or quasi judicial power will be proclaimed as void if the judges of these powers have some individual or monetary enthusiasm for the case.

Rule of Natural Justice is an extremely center idea of the Indian Constitution. Article 14, 19 and 21 of the Constitution of India set out the foundation of this rule. The Supreme Court of India assumes a fundamental part to build the significance of the rule of normal equity in India.

In kharak Singh v State of U.P the court takes an extremely stagnant view and says that “method built up by law” of Article 21 of the Constitution implies any methodology sets around any Statute. Such technique can abrogate the idea of sensibility or characteristic equity or due process while translating this Article. On account of Maneka Gandhi v Union of India the court says that “individual freedom” of Article 21 is restricted to the real limit as well as incorporates shifts different sorts of rights, that implies rights given in Article 19 additionally, to make the individual freedom of any man. the court says that the system mulled over in Article 21 can’t be irrational or out of line .The standard of sensibility is a basic component of fairness. So any strategy which takes away individuals’ entitlement to travel to another country, without giving a sensible chance of being listened, will be considered as infringement of Article 21 as it disregards the standard of characteristic equity

Along these lines, the run of regular equity predominantly manages the standard of reasonable hearing. Along these lines these taking after parts are likewise incorporate into the control of regular equity:

Right to notice: The both parties of any case have a right to get notice, which means, the time and space of the hearing, legal authorities under which the hearing is going to be made, specification of charges etc.

Right to know evidences against him: All the parties of a case have this right to prove them innocent.

Right to cross examination: Cross examination is a really useful tool to bring the truth out.