Wednesday, December 31, 2008

INDIAN CYBERLAW IN 2008

INDIAN CYBERLAW IN 2008

BY

PAVAN DUGGAL
ADVOCATE, SUPREME COURT OF INDIA
HEAD, PAVAN DUGGAL ASSOCIATES
PRESIDENT, CYBERLAWS.NET



As 2009 has dawned, bringing a yet new year in our lives, it is time to consider and have an over view of the major developments in Indian Cyberlaw in the year gone by. 2008 was the year in which various important and landmark events took place in the area of cyber legal jurisprudence in India.

This was the year that was dominated by cybercrime and its rapid growth in India.

This year, the cybercriminals came in their own form, leaving the law enforcement agencies, gasping for breath and found wanting in implementing effective strategies to deal with them.

The year 2008 was also the year in which various emerging cybercrimes occupied centre stage attention. Various instances on identity theft and phishing were reported though under reported figures far outstripped the reported instances. The Indian cyberlaw continued to appear as a toothless lion in the light of the growing instances of cybercrime in India.

Meanwhile as Internet 2.0 became more prominent in India in the year 2008 social networking cybercrimes, including misuse of personal information posted on social networking sites was reported frequently. The misuse of personal information by tampering and amending the same, available on social networking platforms, has grown tremendously.

The year 2008 was also the year of cyber terrorism. The number of instances of cyber terrorism increased with the passage of time. Whether it was Bangalore or Delhi attacks, each bomb blast was preceded by the sending of emails announcing the said impending acts and claiming responsibility for the same. 2008 was the year when the cyber terrorist became bolder and far more adventurous. The inability of the law enforcement agencies to expeditiously track down the cyber criminals and take effective action demonstrated the inadequacy of Indian cyber legal regime and enforcement capacities to deal with complicated emerging issues pertaining to cyber terrorism.

2008 was also the year, when cyber terrorism came to the forefront in India in the form of the Mumbai attacks. The Mumbai terrorists were extremely technology savvy, and were using satellite phones with impunity.

2008 was also the year when pushed by the Mumbai attacks, the Government swung into action and got the amendments to the Information Technology Act 2000 passed in both the houses of Parliament. Clearly the factum of the passage of the Information Technology Amendment Act 2008 in both the houses of the Parliament without discussions demonstrate the truth of the dictum that history repeats itself. In the year 2000, the IT Act was passed, without any discussions in both the houses of the Parliament. The same history came to be repeated in India in December 2008 , when both the houses of Parliament passed the Information Technology Amendment Act 2008 without discussions and without even debating upon the inadequacy of the proposed amendments and the need for more detailed discussions and work in this regard.

Rather than dealing with the entire challenge of cyber terrorism in a comprehensive manner, the IT Act amendments have only got one provision on cyber terrorism.

There appears to be no sign of any learnings from the Mumbai attacks that the IT Amendment Act 2008 demonstrates. These amendments are now waiting for the seal and signature of the President before the same are implemented.


2008 was also the year, in which Network Service Providers started feeling the heat of the process of law. Various litigations were filed against Network Service Providers insisting upon them to disclose third party information rendered and made available in their computer systems. 2008 was also the year in which a prominent Network Service Provider started feeling the taste of giving wrong subscriber information to the law enforcement agencies.

2008 brought home the dawning of the truth that if the network service providers are negligent in giving the correct subscriber information to the law enforcement agencies, then they need to face potential legal consequences, both civil and criminal. This is all the more so as under the Information Technology Act 2000, Network Service Providers are made available for all third party data and information made available by them. However, the network service providers can exit from their liability provided that they are able to prove two alternate conditions. The first condition is that the network service provider has to prove that he had no knowledge of any contravention of the law. The second condition is that the network service provider has to prove that despite the exercise of all due diligence, it still could not prevent the commission of any offence or contravention under the law.

2008 was also the year in which one of the most prominent IT Companies of India ,Satyam Computer Services, was banned by the World Bank due to ‘improper benefits to bank staff’ and ‘lack of documentation on invoices’ for a period of eight years.

Year 2008 was also a year, when India organized big international events pertaining to IT and Internet. In February 2008 the Delhi meeting of the Internet Corporation For Assigned Names And Numbers ( ICANN) was held. Towards the end of the year December 2008, the Government organized the Internet Governance Forum at Hyderabad. The forum is a United Nation forum and is of tremendous significance in terms of giving a common platform to all stakeholders of the Internet to discuss various issues pertaining to internet law and policy.

Year 2008 was also a landmark year for judgements given under the Information Technology Act 2000.

In February 2008, Dr. L.Prakash, a prominent orthopedic surgeon, was sentenced to life imprisonment on the charges of online obscenity. In May 2008 the Delhi High Court rendered its landmark judgment in Baazee.com case. In this case, the CEO of the said portal was arrested in the year 2004 for the hosting of a message relating to the DPS MMS, on the website Baazee.com, which is now known as ebay.in .

In this case the Government levied criminal charges and filed charge sheet. This was so challenged before the Delhi High Court, which declined to quash the cyber criminal charges of online obscenity and directed the accused to face criminal trial. The matter is since now pending in the Supreme Court.

The common result of this judgment is that principles of law for electronic information as enshrined in the Information Technology Act, 2000 have been upheld.

2008 also continued to be a drought year in terms of no reported case of the grant of any damages by way of compensation under the summary procedure , detailed under the Information Technology Act, 2000.

The year 2008 was an adventurous year as far as cyber law jurisprudence in India is concerned. The cyberlegal developments that took place in 2008 , will provide the foundation for subsequent growth and development of the Indian cyberlaw jurisprudence in the year 2009.

It will be interesting to see how the year 2009 deals with highly complicated challenges pertaining to the internet, cyber space and the World Wide web.

All eyes are now on the year 2009!



The author Pavan Duggal, is India’s leading expert on cyberlaw and a practising Advocate in the Supreme Court of India, specializing in Internet and technology law. More information about him is at www.cyberlaws.net

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