IMPORTANT CYBERLAW DEVELOPMENTS OF 2009

Cyberlaw as a field grew tremendously in the year 2009.

2009 saw various new challenges that Cyberlaw was faced with around the world.

Information security and legislations around the same was a matter of tremendous concern for a majority of countries.

The emergence of cyber crimes and criminal activities on the internet continued to gain more momentum.

Cyber terrorism as a phenomenon firmly established itself as an important challenge before national governments and sovereign nations.

The struggle between the rights of sovereign nations to preserve national security and integrity vis-a-vis the personal private rights of individuals pertaining to privacy continued to grow.

More adoption of communication devices across the world and especially in third world countries like China and India clearly set the tone for far more complicated legal challenges facing the growth of Cyberlaw jurisprudence.

This year also saw cloud computing emerging on the scenario in an important significant manner. However, cloud computing also brought forward various complicated legal challenges and issues. The issue of distribution of content and data over computer resources located in different territorial jurisdictions connected to the cloud managed to gain enough significant recognition. More and more companies were impressed by the business relevance of cloud computing but also substantially concerned about the various legal issues and challenges as and when they arise.

Identity theft continued to be a major cyber crime mover in various jurisdictions.

Also misuse of confidential data and information was one subject that continuously engages the attention of the relevant stakeholders in different jurisdictions.

In the context of India, the year 2009 saw the notification and implementation of Information Technology (Amendment) Act 2008.

The said Information Technology Amendments are a tremendous improvement over the earlier law yet it brought forward its own practical peculiar problems and drawbacks

Cyber terrorism was declared as a heinous crime punishable with life imprisonment and fine under the terms of the amended Information Technology Act.

Further, various new kinds of cyber crimes like identity theft, cyber defamation, cyber nuisance and cyber harassment was specifically brought within the ambit of the Indian Cyberlaw.

India deviated from its earliest stand of providing for stringent punishment for cyber criminals by enacting the amended Information Technology Act.

The amended Information Technology Act is a cyber crime friendly legislation of India which goes extremely soft on cyber criminals.

Barring a few offences, almost all cyber crimes in India have been made as bailable offences where the accused is entitled to bail as a matter of right.

Such a legislative initiative, although laudable in its objectives, is likely to have counter-productive consequences.

After the amended Information Technology Act 2000 has come into implementation, I have seen various cases where once the accused has been released on bail, he has gone ahead and destroyed the concerned electronic evidences.

Destruction of incriminating electronic evidence will become the norm of the day in a country like India after the accused is released on bail which will make cyber criminal convictions in India even bigger challenge than earlier.

Already, the statistics are against India. A country of billion plus and a couple of cyber crime convictions is a sad commentary on the way the Information Technology Act 2000 was implemented.

By providing for mandatory bailablity of cyber crimes and by going soft on cyber criminals and by reducing the quantum of punishment of cyber crimes, the amended Information Technology Act gives virtually a signal to cyber criminals to come and explore the fertile soils of India for perpetuating the cyber criminal designs and intentions.


ABOUT THE AUTHOR

While a practicing Advocate, Supreme Court of India, Pavan Duggal has made an immense impact with an international reputation as a leading expert and authority on Cyberlaw and E-Commerce law. As such, his empanelment as a consultant to UNCTAD and UNESCAP on Cyberlaw and Cybercrime respectively, membership of the AFACT Legal Working Group of the UN / CEFAT, consulting as an expert with the Council of Europe on Cybercrime , inclusion in the Board of Experts of European Commission's Dr. E-Commerce and his work as an expert authority on a Cyberlaw primer for e-ASEAN Task Force and as a reviewer for Asian Development Bank speaks volumes of his worldwide acceptance as an authority on Cyberlaw. Pavan is the President of Cyberlaw Asia, Asia’s pioneering organization committed to the passing of dynamic Cyberlaws in the Asian continent. Pavan is also a member of the WIPO Arbitration and Mediation Center Panel of Neutrals and a member of ICT Policy and Governance Working Group of the UNICT Taskforce. He is the Legal and Policy Consultant to Internet Mark 2 Project, which is examining the next level of Internet. He has been invited to be an Associated Fellow of the Centre for Asia Pacific Technology Law and Policy (CAPTEL) at Singapore. Pavan is a member of Panel of Arbitrators of the Regional Centre for Arbitration, Kuala Lumpur and Asian Domain Names Dispute Resolution Centre at Hong Kong.

Pavan heads his niche law firm Pavan Duggal Associates, which has practice areas, amongst others, in Cyberlaw, Business Process Outsourcing Law, Intellectual Property Rights and Information Technology Law, Information Security Law, Defence, Biotech and Corporate Law. Pavan is also the President of Cyberlaws.Net, which is Internet's first ever-unique Cyberlaw consultancy. In addition to that, he is also the founder of the Cyberlaw Association and is also the Founder-President, Cyberlaw India. Some outstanding pioneering work in the field of cyber legal issues has resulted in his being the Chairman of ASSOCHAM Cyberlaw Committee.

E-mail – pavan@pavanduggal.com
pduggal@nde.vsnl.net.in