08-Cyberlaw Assignment Final

8/6/2019 08-Cyberlaw Assignment Final

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Based on United Nations resolution A/RES/51/162, dated 30thJanuary, 1997, the MinistryofCommerce, drafted the first version of the E-Commerce laws in India which was titledDraft Ecommerce Act 1998. In 1999, the Government of India created a separateministry for IT .The Ministryof Information Technology, as it was called at that time, came up with a draft of

InformationTechnology Bill, 1999 which was presented in the Parliament on 9th December, 1999.The Bill waspassed on May 17, 2000 by the Parliament, got the assent of the President on 9 thJune2000 and notified as a law with effect from 17 th October, 2000. This is the Act refer to as

the Information Technology Act, 2000. The inadequacy of the IT Act, 2000 to address

some of the challenges and cybercrimes, led to voices for change in the Indian cyber law.The Government of India appointed an Expert Committee to review the Act andrecommend modifications .The Committee submitted its report on August 2005. .TheMinistry of Communications and Technology presented amendments to the Information

Technology Amendment Bill, This was passed on December 22nd in Lok Sabha and verynext day in Rajya Sabha .The Bill received the assent of the President of India on 5th

February, 2009 and is nowtermed as Information Technology (Amendment) Act 2008.

FRAMEWORK OF THE INDIAN IT ACT

In most countries separate laws have been enacted in areas of E-Commerce,Computer Abuse,Information Security, E-Governance, Cyber Judiciary etc.In India, the Information Technology Act, 2000 (ITA) has been structured as acomprehensivelegislation which incorporates the requirements of Enablement of E-Commerce, E-

Governance andDigital Contracts.Accordingly, the first few chapters of the Act address the issue of legal recognition ofelectronicdocuments and a system of digital or electronic signatures, contractual requirementssuch asdetermining attribution, date and time of contract formation, E Governance issues, etc.

There arealso detailed provisions regarding the roles and responsibilities of Certifying Authoritieswhoadminister the digital signature systems.

The penalties have been defined under two chapters, one for determining civil liabilities

forcontraventions (Chapter IX) and the other for criminal offences (Chapter XI).The Act also explains in detail the roles and responsibilities of organizations meant forgrievanceredressal in the form of adjudicators and the Cyber Appellate Tribunal.Miscellaneous issues such as the powers of the Police, liabilities of intermediaries,powers of the stateGovernment, etc have been defined towards the end of the Act .

The Act contained a total of 94 sections which has now been expanded to 121 sections


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after the passage of the Amendments Bill in 2008.

OVERVIEW OF CHANGES - IT (AMENDMENT) ACT, 2008

SCOPE OF THE ACT

The Act extends to the whole of India and as per Section 75 of the

Act, it also applies to any offence or contravention committed outside India or by aperson who isnot a citizen of India if a computer resource located in India . Thus, the Act applies to allentities in India, including branches of foreign companies operating in India.As per the provisions for determination of time and place of dispatch and receipt of

electronicrecords,(1)an electronic record is dispatched at the place where the originator has hisplace of business and is deemed to be received at the place where the addressee hashis place ofbusiness.(2) If the originator has more than one place of business, the principal place of businessshallbe the place of business and(3)where the originator does not have a place of business, it will be the usual place ofresidence.

AN OVERVIEW OF THE INDIAN INFORMATION TECHNOLOGY ACT, 2008

Cyber security has also been defined as protection from unauthorized access, use,disclosure, disruption, modification or destruction.As per Section 84A, the Central Government may, for secure use of the electronicmedium and forpromotion of e-governance and e-commerce, prescribe the modes or methods forencryption.

DATA PROTECTION & DUE DILIGENCESection 43 which lays down penalty and compensation for damage to computer andcomputerSystem specifically includes computer source code. Under the Act, source code meanslisting ofprograms, computer commands, design and layout and program analysis of computerresources inany form.

The earlier limit on liability of Rupees One Crore for damages has now been removed.There is therefore an unlimited liability under this section for any person contraveningthe provisions.

Additionally, two Sections 43A and 72 A have been introduced to address data

protection concerns.According to Section 43A, if a body corporate is negligent in implementing andmaintainingreasonable security practices and procedures in possessing, dealing or handling anysensitivepersonal data or information and thereby causes wrongful loss or wrongful gain to anyperson, suchbody corporate shall be liable to pay damages by way of compensation to the person soaffected.


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PUNISHMENT FOR DISCLOSURE OF INFORMATION IN BREACH OF CONTRACT

Section 72A has been inserted which specifically provides for punishment for disclosureofinformation in breach of a lawful contract. The punishment stipulated is imprisonment

for a termwhich may extend to three years or fine which may extend to Rupees five lakhs or both.

INTERMEDIARY LIABILITY & RESPONSIBILITIES

The definition of an Intermediary used in the Act any person who on behalf of anotherperson receives, stores or transmits a record,includes telecom service providers,network service providers, internet service providers, web hosting service providers,search engines, online payment sites, online-auction sites, online market places andcyber cafes.

Under modified Section 79 of the Act, an intermediary shall not be liable for any thirdpartyinformation, data or communication link hosted by it-if the function of the intermediary is limited to providing access to a communicationsystemover which information made available by third parties is transmitted or temporarilystored or-the intermediary does not initiate the transmission, select the receiver of thetransmission andselect or modify the information contained in the transmission

The intermediary is liable if it fails to expeditiously remove or disable access to materialwhich is

notified as being used to commit an unlawful act without vitiating the evidence in anymanner. As per Section 67C, intermediaries are required to preserve and retain certainrecords for a period tobe notified

CYBERCRIMES

Section 66A applies to sending offensive messages and covers any electronic mail forthe purpose of causing annoyance or inconvenience or to deceive or mislead. ThisSection will cover offences like Cyber Stalking and Phishing.This section to also coverSpamming.

Use of or dealing with stolen computers or mobiles, is an offence under Section 66B

Section 66C covers identity theft and covers fraudulent or dishonest usage of electronicsignature,passwords or unique identification features of any other person.

Section 66E covers punishment for violation of privacy


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Under Section 67, which continues to cover publishing and transmission of obsceneinformation inelectronic form, the fine has been increased to Rupees five lakhs for first instance andRupees tenlakhs for subsequent instances along with imprisonment of three years for first instanceand five yearsfor subsequent instance

67A & 67B have been introduced to cover pornography with punishment ofimprisonment which may extend to five years in the first instance and seven years inthe secondinstance with fine which may extend to Rupees ten lakhs. This would be applicable forcases whereSexually Explicit content and Child Pornography is involved

As per the provisions of Section 80, any police officer not under the rank of an Inspectoror any otherofficer authorized by the central government may enter any public place and searchand arrestwithout warrant any person who is reasonably suspected of having committed orcommitting or aboutto commit any offence under this Act.

CYBER TERRORISM

Section 66F and is termed Cyber Terrorism. Accordingly, whoever denies or access acomputer resource without adequate authorization or introduces or causes to introduceany computer contaminant with intent to threaten the unity, integrity, security orsovereignty of India or friendly relations with foreign states and causes death or injuryto person or damage or destruction to property shall be punishable with imprisonmentwhich may extend upto life.

MONITORING PROVISIONSAs per Section 69, the central or state government may direct any agency to interceptor monitor ordecrypt information if its necessary to do so in the interest of the sovereignty orintegrity or thedefense of the nation or its friendly relations. Sections 69, 69A and 69Balso specify that procedures and safeguards will be prescribed in respect of how thesepowers areexpected to be exercised.

CRITICAL INFORMATION INFRASTRUCTURE

As per Section 70, appropriate government may declare any computer resource(destruction ofwhich shall have a debilitating impact on national security, economy, public health orsafety), to be aprotected system.

The Government will also specify the persons who are authorized to access protectedsystems. Any person who secures access or attempts to secure access to a protected system incontravention of the provisions of this section shall be punished with imprisonment of


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either description for a term which may extend to ten years and shall also be liable tofine.

Cyberlaw is a term that summarize the legal issues related to use ofcommunicative,

transactional, and distributiveaspects of networkedinformation devicesandtechnologies
http://en.wikipedia.org/wiki/Communicationhttp://en.wikipedia.org/wiki/Communicationhttp://en.wikipedia.org/wiki/Transactionhttp://en.wikipedia.org/wiki/Transactionhttp://en.wikipedia.org/wiki/Distributionhttp://en.wikipedia.org/wiki/Distributionhttp://en.wikipedia.org/wiki/Information_devicehttp://en.wikipedia.org/wiki/Information_devicehttp://en.wikipedia.org/wiki/Information_devicehttp://en.wikipedia.org/wiki/Information_technologyhttp://en.wikipedia.org/wiki/Information_technologyhttp://en.wikipedia.org/wiki/Communicationhttp://en.wikipedia.org/wiki/Transactionhttp://en.wikipedia.org/wiki/Distributionhttp://en.wikipedia.org/wiki/Information_devicehttp://en.wikipedia.org/wiki/Information_technology

Documents

08-Cyberlaw Assignment Final