Cyber Crimes and Offences
Cyber Crimes and Offences
Defining "Cyber Crimes"
• The term "cyber-crimes" is
not defined in any statute or rulebook. The word "cyber" is slang for
anything relating to computers, information technology, internet and virtual
reality. Therefore, it stands to reason that "cyber-crimes" are
offences relating to computers, information technology, internet and virtual
reality.
• One finds laws that penalise
cyber-crimes in a number of statutes and even in regulations framed by various
regulators. The Information Technology Act, 2000 ("IT Act") and the
Indian Penal Code, 1860 ("IPC") penalise a number of cyber-crimes and
unsurprisingly, there are many provisions in the IPC and the IT Act that
overlap with each other.
Provisions in the IT Act for Cyber Crimes
Hacking and Data Theft:
• Sections 43 and 66 of the IT Act
penalise a number of activities ranging from hacking into a computer network,
data theft, introducing and spreading viruses through computer networks,
damaging computers or computer networks or computer programmes, disrupting any
computer or computer system or computer network, denying an authorised person
access to a computer or computer network, damaging or destroying information
residing in a computer etc.
• The maximum punishment for the above
offences is imprisonment of up to 3 (three) years or a fine or Rs. 5,00,000
(Rupees five lac) or both.
Receipt of stolen property:
• Section 66B of the IT Act prescribes
punishment for dishonestly receiving any stolen computer resource or
communication device.
• This section requires that the
person receiving the stolen property ought to have done so dishonestly or
should have reason to believe that it was stolen property.
• The punishment for this offence
under Section 66B of the IT Act is imprisonment of up to 3 (three) years or a
fine of up to Rs. 1,00,000 (Rupees one lac) or both.
Identity theft and cheating by personation:
• Section 66C of the IT Act prescribes
punishment for identity theft and provides that anyone who fraudulently or
dishonestly makes use of the electronic signature, password or any other unique
identification feature of any other person shall be punished with imprisonment
of either description for a term which may extend to 3 (three) years and shall
also be liable to fine which may extend to Rs. 1,00,000 (Rupees one lac).
• Section 66D of the IT Act prescribes
punishment for 'cheating by personation by using computer resource' and
provides that any person who by means of any communication device or computer
resource cheats by personation, shall be punished with imprisonment of either
description for a term which may extend to 3 (three) years and shall also be
liable to fine which may extend to Rs. 1,00,000 (Rupees one lac).
Obscenity:
Sections 67, 67A and 67B of the IT Act
prescribe punishment for publishing or transmitting, in electronic form:
(i) obscene material;
(ii) material containing sexually explicit act,
etc.; and
(iii) material depicting children in sexually
explicit act, etc. respectively.
• The punishment prescribed for an
offence under section 67 of the IT Act is, on the first conviction,
imprisonment of either description for a term which may extend to 3 (three)
years, to be accompanied by a fine which may extend to Rs. 5,00,000 (Rupees
five lac), and in the event of a second or subsequent conviction, imprisonment
of either description for a term which may extend to 5 (five) years, to be
accompanied by a fine which may extend to Rs. 10,00,000 (Rupees ten lac).
• The punishment prescribed for
offences under sections 67A and 67B of the IT Act is on first conviction,
imprisonment of either description for a term which may extend to 5 (five)
years, to be accompanied by a fine which may extend to Rs. 10,00,000 (Rupees
ten lac) and in the event of second or subsequent conviction, imprisonment of
either description for a term which may extend to 7 (seven) years and also with
fine which may extend to Rs. 10,00,000 (Rupees ten lac).
Violation of privacy:
• Section 66E of the IT Act prescribes
punishment for violation of privacy and provides that any person who
intentionally or knowingly captures, publishes or transmits the image of a
private area of any person without his or her consent, under circumstances
violating the privacy of that person, shall be punished with imprisonment which
may extend to 3 (three) years or with fine not exceeding Rs. 2,00,000 (Rupees
two lac) or with both.
'intermediary'
• Section 67C of the IT Act: Section 67C of the IT Act
requires 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.
• The section further provides that
any intermediary who intentionally or knowingly contravenes this requirement shall
be punished with imprisonment for a term which may extend to 3 (three) years
and also be liable to a fine.
• An 'intermediary' with respect to
any particular electronic record, has been defined in the IT Act to mean 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.
Cyber terrorism:
• Section 66F of the IT Act prescribes
punishment for cyber terrorism. Whoever, with intent to threaten the unity,
integrity, security or sovereignty of India or to strike terror in the people
or any section of the people, denies or causes the denial of access to any
person authorized to access a computer resource, or attempts to penetrate or
access a computer resource without authorisation or exceeding authorised
access, or introduces or causes the introduction of any computer contaminant,
and by means of such conduct causes or is likely to cause death or injuries to
persons or damage to or destruction of property or disrupts or knowing that it
is likely to cause damage or disruption of supplies or services essential to
the life of the community or adversely affect critical information infrastructure,
is guilty of 'cyber terrorism'.
• Whoever knowingly or intentionally
penetrates or accesses a computer resource without authorisation or exceeding
authorised access, and by means of such conduct obtains access to information,
data or computer database that is restricted for reasons for the security of
the State or foreign relations, or any restricted information, data or computer
database, with reasons to believe that such information, data or computer
database so obtained may be used to cause or likely to cause injury to the
interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality, or
in relation to contempt of court, defamation or incitement to an offence, or to
the advantage of any foreign nation, group of individuals or otherwise, is also
guilty of 'cyber terrorism'.
Whether Compoundable, Cognizable and Bailable
• Section 77A of the IT Act provides
that, subject to certain exceptions, all offences under the IT Act for which
the punishment is imprisonment for a term of 3 (three) years or less, are
compoundable. The provisions of sections 265B and 265C of the Code of Criminal
Procedure, 1973 ("CrPC") shall apply with respect to such
compounding.
• Section 77B of the IT Act provides
that notwithstanding anything contained in the CrPC, all offences punishable
with imprisonment of 3 (three) years and above under the IT Act shall be
cognizable and all offences punishable with imprisonment of 3 (three) years or
less shall be bailable.
Most of the cyber-crimes covered
under the IT Act are punishable with imprisonment of 3 (three) years or less.
The cyber-crimes which are punishable with imprisonment of more than 3 (three)
years are:
• publishing or transmitting obscene
material in electronic form under section 67 of the IT Act;
•
publishing
or transmitting of material containing sexually explicit act, etc., in
electronic form under section 67A of the IT Act;
•
publishing
or transmitting of material depicting children in sexually explicit act, etc.,
in electronic form under section 67B of the IT Act; and
•
cyber
terrorism under section 66F of the IT Act.
Information Technology (Intermediaries’
Guidelines) Rules, 2011
•
Rule
2 of the Intermediary Guidelines imports definitions for key terms from the IT
Act. Notably, this includes an importation of Section 2 (w) by Rule 2
(i), which defines “intermediary” broadly in the following terms:
•
“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;”
•
Rule
3 whose margin note indicates that it is limited to due diligence measures to
be adhered to by intermediaries nevertheless also raises other liabilities by
creating a regime to censor content, pre-publication as well as once content
has been made publically available online.
Sub-rule (2) of Rule 3
•
Sub-rule (2) of Rule 3 inventories the classes of content which are deemed actionable,
with only clause (i), clause (c), clause (e) and, arguably clause (h), of that
rule addressing the national interest, public order and security restrictions
cognizable under Article 19(2) of the Constitution.
•
The
remainder of grounds includes private claims such as content which “belongs to
another person”, or otherwise infringes proprietary rights, or is “defamatory”.
•
Still others are terminologically
indeterminate and purely subjective, with the terms “grossly harmful”,
“harassing” and “disparaging” being examples.
•
This
sub-rule also includes a number of redundancies. While there is reference to
libelous as well as defamatory content in clause (b), it is well established
that Indian law does not admit of the former concept, instead dissolving the
common law distinction between the two to treat them alike.
•
There
is also clause (e), which prohibits content which is all ready illegal for
violating the provisions of an existing statute and the residuary phrasing of
the clause (b)’s reference to content which is “otherwise unlawful in any
manner whatever”.
•
The
sub-rules immediately following the list in Rule 3(2) address the consequences
of users publishing content listed in that rule:
•
Sub-rule (3) of rule 3 provides that intermediaries will not knowingly deal in any manner
whatsoever, whether by hosting, publication, transmission or otherwise, with
any content of the types that are listed in the previous clause.
•
Sub-rule (4) of rule 3 creates a complaints mechanism in respect of content incompatible
with Rule 3 (2) by requiring intermediaries to disable access to offending
content within 36 hours of obtaining knowledge themselves or on being brought
to “actual knowledge” by an “affected person”.
•
The
Intermediaries Guidelines do nothing to clarify what would amount to “actual
knowledge”, to indicate in unambiguous terms, which parties would have
sufficient locus to bring complaints in order to be deemed an
“affected person” for the purposes of these provisions or to suggest that there
is a procedure or timeline for action by the intermediary, such that
requirements such notice to the author of the content and time for the
preparation of a defence by the author and/or the intermediary are accounted
for.
•
Rule
3 (4) also requires that all information which is taken down be preserved,
along with “associated records” for a duration of atleast ninety days for
investigative purposes.
•
Sub-rule (5) of rule 3 mandates that intermediaries inform users that
non-compliance with the Intermediary Guidelines, inter alia, is a
ground for the exercise of their right to terminate access or usage rights and
remove non-compliant content.
•
Finally, sub-rule
(11) of rule 3 requires intermediaries to name Grievance Officers to
receive complaints on any matters relating to the computer resources made
available by the intermediary, including for non-compliance or harm in terms of
Rule 3 (2). This officer is bound to respond to the complaint within one month
from the date of receipt of the complaint.
•
In
the result, the Intermediary Guidelines create a two-track system by which
private censorship is legitimized online. In the first place, intermediaries can
take down content on their own motion where they are of the opinion that the
content falls under any of the grounds enumerated in Rule 3 (2) or,
alternatively, do so in response to a complaint, in terms of Rule 3 (4).
•
In
addition to the provisions relating to censorship, the Intermediary Guidelines
also provide for information to be given over to government agencies making a
request with lawful authority and in writing under sub-rule (7) of rule
3, for data protection measures in accordance with the Information
Technology (Reasonable Security Practices and Procedures and Sensitive Personal
Information) Rules, 2011 notified under Section 43A of the IT Act to be adhered
to (sub-rule (8) of rule 3) and for intermediaries to report and share
information realting to cyber security with CERT-In (sub-rule (9) of rule 3).
Copyright Act and Rules
•
Copyright
is a legal term describing rights given to creators for their literary and
artistic works.
•
The
kinds of works covered by copyright include: literary works such as novels,
poems, plays, reference works, newspapers and computer programs; databases;
films, musical compositions, and choreography; artistic works such as
paintings, drawings, photographs and sculpture; architecture; and
advertisements, maps and technical drawings.
•
Copyright
subsists in a work by virtue of creation; hence it‟s not mandatory to register.
•
However,
registering a copyright provides evidence that copyright subsists in the work
and creator is the owner of the work. Creators often sell the rights to their
works to individuals or companies best able to market the works in return for
payment.
•
These
payments are often made dependent on the actual use of the work, and are then
referred to as royalties. These economic rights have a time limit, (other than
photographs) is for life of author plus sixty years after creator‟s death.
Online Copyright violation-
•
Caching
•
One
of the basic copyright issues in the internet is determining the border between
private and public use.
•
The
Indian Copyright Act, 1957 makes a distinction between reproduction for public
use and can be done only with the right holder’s permission.
•
The
right of reproduction presents certain fundamental problems over the internet.
•
This
is because of the basic nature of internet transmission. Reproduction takes
place at every stage of transmission.
•
Temporary
copying (known as caching) is an essential part of the transmission process
through internet without which messages cannot travel through the networks and
reach their destinations.
•
In
the Indian Law, reproduction has to be in a material form but includes “storing
of it in any medium by electronic means” making caching also violative of
copyright.
Plagiarism
•
Technological
progress has made copying of copyright material easy and simple.
•
Consequently,
the control of copyright infringement has very difficult and often impossible.
•
Books,
videos, films, music can be copied without any difficulty and thousands of
copies can made from it and distributed.
•
Taking
content from one site, modifying it or just reproducing has been made possible
by digital technology.
•
This
has posed new challenges for the traditional interpretation of individual
rights and protection under the Copyright Act.
Protection of Database
•
The
Indian Copyright Act 1957 protects “Databases” as “Literary Works” under
Section 13(1) a. Of the Act which says that copyright shall subsist throughout
India in original literary, dramatic, musical and artistic works.
•
The
term computer Database has been defined in the Information Technology Act 2000
for the first time.
•
Section
43 of the I.T. Act 2000 provides for compensation to the aggrieved party up to
one Crore rupees from a person who violates the copyright and cyberspace norms.
•
Also
Section 66 of I.T. Act 2000 provides for penal liabilities in such a case.
Protection of computer software
•
According
to section 2(ffc) of the Copyright Act, a computer programme is a "set of
instructions expressed in words, codes, schemes or in any other form, including
a machine readable medium, capable of causing a computer to perform a
particular task or achieve a particular results".
•
Computer
software is "computer programme" within the meaning of the Copyright
Act. Under the T.R.I.P.S (Trade Related aspects of Intellectual Property
Rights) agreement, computer programs now qualify for copyright protection just
as any other literary work as well as other forms of Intellectual Property
Rights protection
•
These
computer software are also subject matter of copyright protection under the
Copyright Act. Computer programmes are included in the definition of literary
work under the Copyright Act.
•
Owner
of the computer software possesses with various right including the right to
grant software licenses.
•
Software
licenses can be of various types such as freeware license, open source license,
demoware etc.
•
Software
copyright owner has the right to reproduce and make any number of copies of his
work as he likes. Secondly, he may display his software on the internet which
would amount to display to the public. He is also vested with the rights of
selling, renting, transferring, updating, modifying his software copyrighted
work. No person can use such copyrighted work for his own benefit without prior
permission of the owner. Nevertheless if any person exploits the copyrighted
work for any commercial purpose or to cause any monetary loss to the owner,
then it will amount to infringement of copyright.
•
Even
though the software copyright owner enjoys many exclusive rights yet they are
not absolute and are subject to certain limitations and exceptions in order to
protect and safeguard the public interest particularly of the users of the
software. In certain circumstances, the use of the copyrighted work is allowed
even without the permission of its author in some socially desirable
circumstances such as literary, dramatic, musical or artistic work for the
purpose of private use, including research, criticism or review, in order to
utilize the computer program for the purpose for which was supplied or to make
back-up copies purely as a temporary protection against loss, destruction or
damage in order only to utilize the computer program for the purpose for which
it was supplied
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