Computer or Cyber CrimeComputer crime, or cybercrime, is any crime that involves a computer and a network. The computer may have been used in the commission of a crime, or it may be the target.Netcrime is criminal exploitation of the Internet, inherently a cybercrime. Dr. Debarati Halder and Dr. K. Jaishankar (2011) define Cybercrimes as: "Offences that are committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm, or loss, to the victim directly or indirectly, using modern telecommunication networks such as Internet (Chat rooms, emails, notice boards and groups) and mobile phones (SMS/MMS)". Such crimes may threaten a nations security and financial health Issues surrounding these types of crimes have become high-profile, particularly those surrounding hacking, copyright infringement, child pornography, and child grooming. There are also problems of privacy when confidential information is intercepted or disclosed, lawfully or otherwise. Dr.Debarati Halder and Dr.K.Jaishankar(2011) further define cybercrime from the perspective of gender and defined 'cybercrime against women' as "Crimes targeted against women with a motive to intentionally harm the victim psychologically and physically, using modern telecommunication networks such as internet and mobile phones.An Australian nationwide survey conducted in 2006 found that two in three convicted cybercriminals were between the ages of 15 and 26.Internationally, both governmental and non-state actors engage in cybercrimes, including espionage, financial theft, and other cross-border crimes. Activity crossing international borders and involving the interests of at least one nation state is sometimes referred to as cyberwarfare. The international legal system is attempting to hold actors accountable for their actions through the International Criminal Court.A report (sponsored by McAfee) estimates the annual damage to the global economy at $445 billion; however, a Microsoft report shows that such survey-based estimates are "hopelessly flawed" and exaggerate the true losses by orders of magnitude. Computer crime encompasses a broad range of activities.Fraud and financial crimesComputer fraud is any dishonest misrepresentation of fact intended to let another to do or refrain from doing something which causes loss. In this context, the fraud will result in obtaining a benefit by:Altering in an unauthorized way. This requires little technical expertise and is common form of theft by employees altering the data before entry or entering false data, or by entering unauthorized instructions or using unauthorized processes;Altering, destroying, suppressing, or stealing output, usually to conceal unauthorized transactions. This is difficult to detect;Altering or deleting stored data;Other forms of fraud may be facilitated using computer systems, including bank fraud, identity theft, extortion, and theft of classified information and A variety of internet scams, many based on phishing and social engineering, target consumers and businesses.

BRIEF INTRODUCTION of defamationWith the invention of the internet the life of a common has changed a lot. The internet has provided a medium to interact with the people worldwide. It has brought the world closer to every man who has access to it. It has proved to be repository of the enormous information which a common man could not access easily. It has also given new dimensions to business and trade. Social networking, entertainment, shopping, job hunt, recruitment, you name anything and its possible via the medium of internet.

The widespread use of internet has also given a new face to the crime and a new medium to the bad elements to commit crime.

Cyberspace is a technical term used for the electronic medium of computer networks, in which online communication takes place. It comes alive only when two or more computers are networked together. The term has a very wide meaning and is not only restricted to the internet but also includes computers, computer networks, the internet, data, software etc. The crimes that are committed by using the computer as an instrument, or a target or a mean for perpetuating further crimes falls within the definition of cyber crime. Cyber law is the law that governs the crimes committed within the cyberspace. Cyber Defamation is also a cyber crime. CYBER DEFAMATIONThe term defamation is used to define the injury that is caused to the reputation of a person in the eyes of a third person. The injury can be done by words oral or written, or by signs or by visible representations. The intention of the person making the defamatory statement must be to lower the reputation of the person against whom the statement has been made in the eyes of the general public. Cyber defamation is a new concept but the traditional definition of the term defamation is application to the cyber defamation as it involves defamation of a person through a new and a virtual medium.

Cyber defamation is publishing of defamatory material against another person with the help of computers or internet. If someone publishes some defamatory statement about some other person on a website or send emails containing defamatory material to other persons with the intention to defame the other person about whom the statement has been made would amount to cyber defamation. The harm caused to a person by publishing a defamatory statement about him on a website is widespread and irreparable as the information is available to the entire world. Cyber defamation affects the welfare of the community as a whole and not merely of the individual victim. It also has its impact on the economy of a country depending upon the information published and the victim against whom the information has been published.

The following are mediums by which offense of cyber defamation can be committed:World Wide WebDiscussion groupsIntranetsMailing lists and bulletin boardsE-mailThere are two broad category of case falling under cyber defamation: The first category involves the cases in which the liability is of the primary publishers of the defamatory material, e.g. web site content providers, e-mail authors etc;The second category involves the cases involving the liability of the internet service providers or bulletin board operators.

STATUTORY PROVISIONS GOVERNING CYBER DEFAMATION IN INDIAINDIAN PENAL CODE, 1860The Indian Penal Code, 1860 contains provisions to deal with the menace of cyber defamation.

1. Section 499 of IPC:Section 499 of IPC says that 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 excepted, to defame that person.The offence of defamation is punishable under Section 500 of IPC with a simple imprisonment up to 2 years or fine or both.The law of defamation under Section 499 got extended to "Speech" and "Documents" in electronic form with the enactment of the Information Technology Act, 2000.2. Section 469 of IPC:Section 469 of IPC says that whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.The phrase intending that the document forged under Section 469 was replaced by the phrase intending that the document or electronic record forged vide the Information and Technology Act, 2000.3. Section 503 of IPC:Section 503 of IPC defines the offense of criminal intimidation by use of use of emails and other electronic means of communication for threatening or intimidating any person or his property or reputation. Section 503 says that whoever, threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation.

INFORMATION TECHNOLOGY ACT, 2000The Section 66A of the Information Act, 2000 does not specifically deal with the offence of cyber defamation but it makes punishable the act of sending grossly offensive material for causing insult, injury or criminal intimidation.Section 66A of the Information Act, 2000 Section 66A of the IT Act says that any person who sends, by means of a computer resource or a communication device:-any information that is grossly offensive or has menacing character; orany content 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 makes by making use of such computer resource or a communication device, 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 fine.

The Information Technology Amendment Act, 2008The Information Technology Amendment Act, 2008 was passed by the Indian Parliament on December 22, 2008 and following Presidential assent it has become a law from February 5, 2009. The amendment bears a certain degree of similarity to the prevailing law in the United States of America ("USA"). In USA, intermediaries such as SNWs, internet service providers and other interactive web service providers are exempted from liability under defamation if (i) they prove that they have no control over the statement or content and (ii) they remove such statement or content from their website or network immediately upon receiving the notice from the plaintiff.The amended Section 79 of this Amendment Act provides the mechanism equivalent to the law of USA. Following are the relevant provisions of the Information Technology Act (after the said amendment comes into force)."Section 79:(1) Notwithstanding anything contained in any other law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available by him.(2) The provisions of sub-section (1) shall apply if(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored; or(b) the intermediary does not(i) initiate the transmission,(ii) select the receiver of the transmission, and(iii) select or modify the information contained in the transmission.(3) The provisions of sub-section (1) shall not apply if(a) the intermediary has conspired or abetted in the commission of the unlawful act;(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.(4) Intermediary shall observe such other guidelines as the Central Government may prescribe in this behalf.Explanation.For the purpose of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary.Section 2(w) "intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and 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 and cyber cafes, but does not include body corporate referred to in section 43A."

WHERE TO LODGE A COMPLAINTA person aggrieved of the offence of offence of cyber defamation can make a complaint to the Cyber Crime Investigation Cell. The Cyber Crime Investigation Cell is a branch of the Criminal Investigation Department (CID). Cyber Crime Investigation Cells have opened up in many cities like Delhi, Mumbai, Chandigarh, Hyderabad, Bangalore, Tamil-Nadu, Gurgaon, Pune, Madhya-Pradesh, Lucknow, etc. The Cyber Crime investigation Cells deal with offences related to the computer, computer network, computer resource, computer systems, computer devices and Internet. It also has power to look into other high-tech crimes.The very first case of defamation in India. In the first case of cyber defamation in India, SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, the reputation of a corporate was being defamed by an employee of the plaintiff company by sending derogatory, defamatory, obscene, emails obscene, vulgar, filthy and abusive emails to its employers and also to different subsidiaries of the said company all over the world with the aim to defame the company and its Managing Director. The Hon'ble Judge of the Delhi High Court passed an ex-prate ad interim injunction observing that a prima facie case had been made out by the plaintiff.

Consequently, the Delhi High Court restrained the defendant from sending derogatory, defamatory, obscene, vulgar, humiliating and abusive emails either to the plaintiffs or to its sister subsidiaries all over the world including their Managing Directors and their Sales and Marketing departments. Further, Hon'ble Judge also restrained the defendant from publishing, transmitting or causing to be published any information in the actual world as also in cyberspace which is derogatory or defamatory or abusive of the plaintiffs.

In another case State of Tamil Nadu v. Suhas Katti related to posting of obscene, defamatory and annoying message about a divorcee woman in the yahoo message group. E-Mails were also forwarded to the victim for information by the accused through a false e-mail account opened by him in the name of the victim. The posting of the message resulted in annoying phone calls to the lady in the belief that she was soliciting. Based on a complaint made by the victim in February 2004, the Police traced the accused to Mumbai and arrested him within the next few days. Relying on the expert witnesses and other evidence produced before it, including the witnesses of the Cyber Cafe owners, the Additional Chief Metropolitan Magistrate held the accused guilty of offences under section 469, 509 IPC and 67 of IT Act, 2000 and the accused is convicted and is sentenced for the offence to undergo RI for 2 years under 469 IPC and to pay fine of Rs.500/-and for the offence u/s 509 IPC sentenced to undergo 1 year Simple imprisonment and to pay fine of Rs.500/- and for the offence u/s 67 of IT Act 2000 to undergo RI for 2 years and to pay fine of Rs.4000/- All sentences to run concurrently. The conviction of the accused was achieved successfully within a relatively quick time of 7 months from the filing of the FIR.

In the case of Tata Sons vs. Turtle International, the Delhi High Court has held that publication is a comprehensive term, embracing all forms and mediums including the Internet. That an internet publication has wider viewership, or a degree of permanence, and greater accessibility, than other fixed (as opposed to intangible) mediums of expression does not alter the essential part, i.e. that it is a forum or medium. There is much sense to have more defined criteria taking into account the nature of the internet content. Injunctions on internet content should not be readily granted (especially ex-parte) since, firstly the internet is an easy, self publishing platform providing a medium of expression for marginal individuals not having corporatist outlets. Secondly, the internet facilitates the distribution of content for a minor cost to a vast audience. Both the alleged injury and the free speech concern are greater due to the wider dissemination of the content. These are only some of the concerns which set the internet apart and it is desirable to have a nuanced appreciation.Addresses of Cyber Crime Investigation Cells in IndiaNagpurCyber Crime Investigation Cell,Crime Branch, 4th Floor,Administrative Building No. 1,Near Udyog Bhavan,Civil Lines, Nagpur-01.Email:cybercell@nagpurpolice.nic.in Tel: +91 - 712 2566766Website: http://www.nagpurpolice.info/manage_pages?id=29PuneOffice of Commissioner of Police 2, Sadhu Vaswani Road,Camp, Pune - 411001Phone: +91-20-020-26126296, 26122880, 26208250Fax: 020 26128105.Website: www.punepolice.gov.inE-Mail: crimecomp.pune@nic.in / punepolice@vsnl.com Mumbai Cyber Crime Investigation cell,Annex III, 1st floor, Office of the Commissioner of Police,D.N.Road, Mumbai - 400001Ph: +91-22- 24691233Web site: http://www.cybercellmumbai.gov.inE-mail id: cybercell.mumbai@mahapolice.gov.in

ConclusionAfter the Information Technology Amendment Act 2008 become effective from October 27, 2009, intermediaries such as SNWs are immune from any defamation liability provided such intermediaries have acted bonafide or come within the purview of the exemptions envisaged under the amendment. The initial presumption is that intermediaries are not liable provided they satisfy the conditions of sub-clause (2) of Section 79. Though the new law does not shift the burden of proof from defendant (to prove that the statement is true) to plaintiff (to prove that the statement is false and intermediary had knowledge and control over the content), but the new law definitely makes it easier for the defendants to prove their innocence in the event they have acted bonafide.One of the major loopholes was that other users of the SNWs could be made defending parties to the defamation suit, whether or not they were aware of such defamatory statements. However, the new law provides a certain line of defence to them provided they satisfy the abovementioned conditions under the new Section 79. Now that the Information Technology Amendment Act, 2008 is enforced, intermediaries such as SNW are somewhat immure from the risk of being sued as well as having judgments passed in India against them to pay damages to the plaintiff for defamatory statements of others.

Reference and Bibliography

1. www.google.com2. www.cybercrime.com3. www.crime branch oh india.com

Articles and news cuttings

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