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Jurisdiction in Cyberspace

Relevancy of physical location, in Jurisdiction and Governance

The Information Technology Act has provided a legal framework for smooth conduct of e-commerce facilitating and regulating electronic commerce however the problem of jurisdiction of this new arena is extremely complex especially with the expansion of trade and commerce.

Technology reduces and frequently eliminates the need for physical contact in the creation of legally noteworthy relationships between parties or between an actor and the state acting as regulator.  The legal system then is bound to decide what relationship is necessary between the forums and whether either of the conduct is occurring outside the forum or the parties.  It is the relationship between a party and a forum, not necessarily a physical connection between the forum and the conduct of that party that is critical and whether such a tie is sufficient to enable the forum to emphasize individual and prescriptive jurisdiction depends on an analysis of additional factors?

As e-commerce becomes an increasingly important segment of the global economy, with the growth and expansion of technology, Jurisdiction and governance of the web world becomes tougher.

Where services are performed, a security offered for sale, or a trademark infringed became the significant to both personal and prescriptive jurisdictional inquiries- as long as such an act occurred within the state’s boundaries, its declaration of both personal and prescriptive jurisdiction was proper and enforceable.  Activities continue to remain relevant as long as they occur in “real” space, the place of such occurrences.

Not all assertions of jurisdiction were based on this kind of conduct-based inquiry.

For example, states continued to affirm jurisdiction over their citizens with respect to claims that arise outside of the state and to regulate conduct that occurs elsewhere which is proposed to and does cause considerable effects in the state.  Nonetheless, a concern with where relevant acts took place is vital to many, if not most, decisions.  In some contexts, some countries have already implicitly documented this in the detailed context of electronic commerce.  Australia’s Electronic Transactions Act 1999 (Cth) presents default rules for the place of dispatch and receipt of electronic communications (including the place of an offer or acceptance of a contract) based on the party’s place of business or ordinary residence.

Acquiring jurisdiction over an individual who is not resident of India if a foreign country is the sight of the crime and the criminal is not even an Indian citizen, merely because a computer or a computer system in India has been utilised in some way or other linked with the crime. However if software/hardware in India is damaged by a hacker based in a foreign country, there can be no disagreement about India’s right to reach him and make him/her responsible and accountable for the crime committed in India alone. Contravention of any provisions of the Act is a matter of adjudication for compensation purposes by the adjudicating officer and for criminal action by the court.  The Information Technology Act, 2000 apart from India, has extra-territorial jurisdiction to cover any offence or contravention committed outside India by any person.

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Right To Publicity- an Analysis

Right To Publicity- An Analysis

India does not have any legislative provision protecting an individual’s right of publicity. This right has for the most part been enforced in India under the common law tort of passing off, to establish which it is necessary to show that the disputed mark possessed goodwill and reputation.

Section 2(1)(m) of the Trade Marks Act that defines ‘marks’ includes names within its ambit – the Act does not make any specific provision for Publicity or Personality Rights. Indian courts have so far had little occasion to answer and debate over the issue of publicity or personality rights, it is likely that discussions based on different fundamentals of the Right to Publicity will pave the way for its legal recognition. To show ‘reputation’, the enforcement of this right would, in most cases, unconsciously be dependent on commercial exploitation of the plaintiff’s mark – effectively justifying why all individuals may not be protectable under the tort of passing off.

The right to publicity forming a segment of the right of privacy was first recognized in India by the Supreme Court in R RajaGopal v. State of Tamil Nadu, where it was stated by the Court “the first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent”.

Indian judicial analysis of right to publicity is at a embryonic stage, several questions are yet to be attend to by the courts. The ambiguousness and partisanship of the definition of the term “celebrity” itself, and the difficulty to determine what factors would lead to a conclusive determination of who falls within the ambit of a “famous or well-known person”. Secondly, it is not known as to whether this right continue to exist post death in India, and whether it is capable of being transferred before death? In United States of America, the states of California and South Carolina, both are acquainted with post mortem rights to publicity however California imposes a durational limit of 70 years after the person’s death

In ICC Development (International) vs. Arvee Enterprises and Anr – the court held

“The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event…”

 

Liability for infringement of the Right of publicity depended on proving the existence of two factors, stated the Delhi HC in Titan Industries Ltd. vs M/S Ramkumar Jewellers :

“Validity: The plaintiff owns an enforceable right in the identity or persona of a human being.

Identifiability: The Celebrity must be identifiable from defendant’s unauthorized use. Infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable. The right of publicity extends beyond the traditional limits of false advertising laws”.

 Publicity rights issue has still not been deeply explored by the Indian Courts leading to ambiguity and uncertainty of the contents of it and its enforcement in concurrence with the Indian Laws.

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Misappropriation Of Trade Secrets- Legal Consequences

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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Defamation in Cyberspace

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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3D Internet Law- Virtual Property

Insight into the concept of 3D Internet

 

3D Internet, also known as virtual worlds, being a powerful new way to reach consumers, business customers, co-workers, partners and students; connecting and combines the immediacy of television, the versatile content of the web and the relationship building strengths of social networking sites. The 3D internet as virtual property is used to transform a technique and allow for it to be overridden in a derivative group. The implementation of a virtual property can be changed by an overriding element in the said derived class. Unlike the passive experience of television, the 3D internet has proved to be inherently interactive and engaging. 3D Internet is the next age bracket after the current 2D web.

3D Internet will rely on the same basic technology and components as that of a traditional browser, and it will interact with the same search engines and servers. Aside from the use of 3D computer graphics the important difference lies in a much more social experience compared to the two dimensional Internet of today.

NEED, FOR 3D INTERNET?

One of the often heard arguments against the 3D Internet is in the form of the question “why do we need it?” For most of its users the Internet is a familiar, comfortable medium where we communicate with each other, get our news, shop, pay our bills, and more. However, if we stop and think about the nature of the Internet for a moment we realize that it is nothing but a virtual cyberspace where people and organizations interact with each other and exchange information. Once this fact is well understood, the question can be turned on its head and becomes “why do we restrict ourselves to 2D pages and hyperlinks for all these activities?” Navigating hierarchical data structures is often cumbersome for large data sets. Unfortunately, the Electronic Web as we know is organized as a flat abstract mesh of interconnected hierarchical documents. A typical 2D website is an extremely abstract entity and consists of nothing but a bunch of documents and pictures. Within the website, at every level of the interaction, the developers have to provide the user immediate navigational help. Otherwise, the user would get lost sooner or later. Since this is a very abstract environment, there is no straightforward way of providing a navigation scheme which would be immediately recognizable to human beings. The situation is not any better when traveling between websites.

Popular forms of live entertainment could also be placed into the 3D Internet. Many sports allow the users to watch or participate in many popular activities. Though the technology and components used for 3D internet are same as used in traditional internet also it interacts with the same servers and search engines. But being more social 3D internet is different from conventional 2D internet. The wonderful thing about 3D internet is that participants learn as much from each other as from talking to any official source of information. 3D internet search is also as advanced as it opens a vast array of possibilities when it comes to search and browse data. Through 3D internet multi users can read the same documents. You connect organically with other people that share your interests and access the same service as other use.

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Section 66A Information Technology Act, 2000

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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Digital Signatures And Electronic Governance

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 Law on Cyber Crimes

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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Privacy And Data Collection- Statutory Protections

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.

 

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Locating Surrogacy In The Indian Mirror

The world’s second and India’s first IVF (in vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata on October 3, 1978 about two months after the world’s first IVF boy, Louise Joy Brown born in Great Britain on July 25, 1978. From that point forward the field of assisted reproductive technology (ART) has grown apace. The development in the ART strategies is acknowledgment of the way that barrenness as a medicinal condition is a colossal obstacle in the general prosperity of couples and can’t be neglected particularly in a patriarchal society like India. A lady is regarded as a spouse just in the event that she is mother of a tyke, with the goal that her significant other’s manliness and sexual strength is demonstrated and the ancestry proceeds. The issue however emerges when the guardians can’t develop the kid through the traditional organic means. Barrenness is viewed as a noteworthy issue as connection and family ties are reliant on descendants. Thus surrogacy comes as an incomparable friend in need.

The word ‘surrogate’ has its origin from a Latin word ‘surrogatus’, meaning a substitute, that is, a person appointed to act in the place of another.  Black’s Law Dictionary, defines surrogacy as the process of carrying and delivering a child for another person. The Britannica defines ‘surrogate motherhood’ as the practice in which a woman bears a child for a couple unable to produce children in the usual way.

According to another classification, surrogacy can be traditional, gestational and donor surrogacy. Traditional surrogacy involves the artificial insemination of the surrogate mother by using the sperm of the intended father. Gestational surrogacy, on the other hand, involves the creation of an embryo in a Petri dish and its implantation into the womb of the surrogate who carries it to the term. Lastly, in donor surrogacy there is no genetic relationship between the child and the intended parents as the surrogate is inseminated with the sperm, not of the intended father, but of an outside donor.

Article 16(1) of the Universal Declaration of Human Rights 1948 says, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and start a family”.  The Judiciary in India has recognized the reproductive right of humans as a basic right. Vide B. K. Parthasarthi v. Government of Andhra Pradesh, the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as an aspect of his “right to privacy” and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which characterised the right to reproduce as “one of the basic civil rights of man”.

In Kolkata, prosecution for legitimate authority of the principal tyke conceived through surrogacy assertion has as of now started. Commercial surrogacy is developing and specialists and surrogate moms are drawing in into profiteering as clear from various daily papers records of surrogate ladies refering to cash as the fundamental purpose behind taking part in such courses of action. Ladies are being constrained by their in-laws to take part in this rising “business” and the not all that inaccessible dreams of an elevated requirement of living, extravagances and a protected future for their kids are driving ladies to profit through surrogacy.

To legalize surrogacy, The Law Commission of India has submitted the 228th Report on “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy.”

The following observations had been made by the Law Commission20:

  • Surrogacy game plan will keep on being represented by contract among gatherings, which will contain every one of the terms requiring assent of surrogate mother to shoulder kid, understanding of her better half and other relatives for the same, restorative strategies of manual sperm injection, repayment of all sensible costs for conveying youngster to full term, eagerness to hand over the tyke destined to the charging parent(s), and so on.
  • A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
  • Life Insurance of surrogate mother should necessarily be covered under the contract.
  • Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
  • The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
  • Right to privacy of donor as well as surrogate mother should be protected.
  • Sex-selective surrogacy should be prohibited.
  • Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only

This is an extraordinary stride forward to the current circumstance. Presently the question emerges that what type of surrogacy ought to be embraced? The most proper decision is non-business surrogacy as its family business surrogacy which changes over surrogacy into a business action apparently falls foul of Article 23 of the Constitution of India and Section 23 of “activity” hints a component of exchange i.e. purchasing and offering and business surrogacy being proportional to infant offering absolutely includes activity in kids. Interestingly, non-business surrogacy understandings, giving just to “remuneration” comparable to sensible costs brought about by the surrogate mother, pass the touchstone of open arrangement contemplations under area 23 the Indian Contract Act, 1872. Article 23 denies trafficking in individuals while Section 23 makes understandings in spite of open approach unenforceable grasping inside its overlay such contracts which are probably going to debase, degenerate or harm the general population profound quality.

Surrogacy involves conflict of various interests and has inscrutable impact on the primary unit of society viz. family. Non-mediation of law in this knotty issue won’t be legitimate when law is to go about as impassioned protector of human freedom and an instrument of dispersion of positive qualifications. In the meantime, disallowance on dubious good grounds without an appropriate evaluation of social finishes and purposes which surrogacy can serve would be unreasonable. Dynamic authoritative mediation is required to encourage adjust employments of the new innovation i.e. Workmanship and give up the cased way to deal with authorization of surrogacy embraced until now.