Online Certificate Course on

Cyber Law
PAPER 1: INTRODUCTION TO THE CYBER WORLD AND CYBER LAW PART B: AN OVERVIEW OF CYBER LAW

Prepared by

Mr. Vakul Sharma

Advocate Supreme Court of India

FOR

THE INDIAN LAW INSTITUTE

(Deemed Universi !" B#$%&$nd$s R'$d Ne& De(#i ) 11***1

T$+(e ', C'n en s

An Overvie& ', C!+er L$& - The World Created by Technology * Cyberspace A Technology Driven World * Differentiating Between Cyberspace & Physical World * aws for Cyberspace * Cyber aws! A "ew Beginning - Defining Cyber aw - B#ilding Bloc$s of Cyber aw * "eti%ens * Cyberspace * Technology * &cope of Cyber aws 'a( )-co**erce aw 'b( +nline Contracts 'c( Copyright 'd( Trade*ar$ 'e( B#siness &oftware Patenting 'f( )-ta,ation 'g( )-governance 'h( Cyber Cri*es * Cyber aws & -ndia - Approach of the -nfor*ation Technology Act. /000 - A 1acilitating Act * Cyber Contraventions #nder the Act * Cyber +ffences #nder the Act - What Cyber aws 2ight Teach3 'a( &ense of &ec#rity 'b( 4lobal 5ecognition 'c( 6al#e Addition 7 7 7 8 8 9 9 : : ; <0 </ </ </ <7 <= <8 <8 <> <: <; /0 /< /7 /7 /= /= /= /8

An Overvie& ', C!+er L$&

T#e W'r(d Cre$ ed +! Te-#n'('%! We live in a technology driven world? The world that technology has created is a world of *achines - co*p#ters. co*p#ter syste*s and co*p#ter networ$s? This world is #ni@#e in the sense that it creates a bea#tif#l interface between hardware and software? -f hardware can be ter*ed as a tangible co*ponent then the software provides an intangible co*ponent? -t is this co*bination of hardware and software. which has created a world straight o#t of science fiction? This world is an open *elting pot of diverse c#lt#res and social practices? -t is forever evolving and wor$s /=,> witho#t even pa#sing for a second? -t is a *an *ade world witho#t geographical and *an*ade bo#ndaries? C!+ers.$-e / A Te-#n'('%! Driven W'r(d -n fact. technology has proved to be a great leveller? -t has helped in creating a dyna*ic world o#t of nowhereA -t has created B*achine-clonesC in the for* of co*p#ters a high-speed data processing device perfor*ing arith*etic. logical and *e*ory f#nctions by *anip#lating optical. *agnetic or electrical i*p#lses? The power of one B*achine-cloneC is power of all connected B*achine clonesC. which *ay be ter*ed as Bnetwor$-of-networ$sC or -nternet? This dyna*ic virt#al space created by the networ$s of B*achine clonesC has been ter*ed as cyberspace? Therefore. while -nternet is a fact. cyberspace is a fiction? -t is an intangible space created by the *edi#* of -nternet<? -t has no physical attrib#tes yet one can see it. hear it and interact with it? The word BCyberspaceC was first #sed by Willia* 4ibson in his science fiction boo$ Neuromancer. p#blished in <;:=? -t depicted the story of a hac$er
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The New Oxford Dictionary of Eng i!h define! Internet a! an internationa computer networ" providing e ectronic mai and information from computer! in educationa in!titution!# government agencie!# and indu!try# acce!!i$ e to the genera pu$ ic via modem in"!%

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'of databases(. na*ed Case whose Dob was to steal databases for a fee? 4ibson portrayed cyberspace as a three-di*ensional virt#al landscape created by networ$ of co*p#ters? Cyberspace according to hi* loo$ed li$e a physical space b#t act#ally was a co*p#ter-generated constr#ction representing abstract data? Neuromancer. tho#gh a diffic#lt boo$ to read and co*prehend. nevertheless ca#ght the i*agination of p#blic and with the res#lt it was in <;:9. )nglish Dictionaries introd#ced the new word BcyberspaceC? The "ew +,ford Dictionary of )nglish defines BCyberspaceC as the notional environ*ent in which co**#nication over co*p#ter networ$s occ#rs? -t also introd#ced another )nglish word Cyberp#n$s a person who accesses co*p#ter networ$s illegally. especially with *alicio#s intent? -nterestingly. the word BcyberC as a prefi, was first #sed in the )nglish word BCyberneticsC. which is ta$en fro* a 4ree$ word Kubernetes *eaning Bsteers*anC? Cybernetics is the science of co**#nications and a#to*atic control syste*s in both *achines and living things? This ter* was introd#ced and pop#lari%ed by the E?&? *athe*atician "orbert Wiener in a boo$ with that title p#blished in <;=:? Cybernetics is an interdisciplinary s#bDect and incl#des ne#rophysiologists. psychologists. and co*p#ter engineers? Cyberspace is a virt#al *edi#*? -t has no bo#ndaries. no geographical *ass. or gravity? "o laws of "ewton or )instein are applicable hereA Cyberspace represents an interconnected space created by co*p#ters. co*p#ter syste*s or co*p#ter networ$s? -t e,ists in a for* of bits and bytes 0Cs and <Cs? -n fact the entire cyberspace is a co*bination of 0Cs and <Cs and this co*bination is constantly changing? )very second there is a new co*bination of 0Cs and <Cs? -t is nothing b#t a set of electronic i*p#lses? -t is a co*p#ter-generated constr#ction representing abstract data? -t is infor*ation driven world? -n a way. cyberspace can be i*agined as a h#ge repository of infor*ation in the for* of co*p#ter databases. wherein new databases are being for*ed. accessed. retrieved and deleted by every passing second?

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Di,,eren i$ in% Be &een C!+ers.$-e 0 P#!si-$( W'r(d Cyberspace is a digital *edi#* and not a physical world? -t is li*itless. constantly changing its shape. attrib#tes and characteristics? -t is an interactive world and cannot be referred to as a ,ero, version of the geographical space? &#ch a version e,ists only in the fil*s li$e 2atri,A -f physical world is static. well defined and incre*ental. then cyberspace is dyna*ic. #ndefined and e,ponential? The conto#rs of physical world are fi,ed. b#t that of cyberspace is as vast as h#*an i*agination and th#s cannot be given a fi,ed shape? As *illions of ne#rons e,ist in h#*an brain creating a spectre of life. si*ilarly cyberspace represents networ$ of *illions of co*p#ters creating a spectre of digital lifeA Th#s. cyberspace can be treated as a nat#ral e,tension of physical world into an infinite world? L$&s ,'r C!+ers.$-e Tho#gh cyberspace is an e,tension of a physical world. a world that is governed by a body of laws. r#les and reg#lations? The first and the fore*ost @#estion is sho#ld it be reg#lated or not3 The answer is yes. as cyberspace does not e,ist in isolation and is intricately connected to the physical world. which is being a reg#lated and hence s#ch a space by this logic sho#ld also be reg#lated? This raises another @#estion how to reg#late this *edi#*. which is dyna*ic. infinite and intangible3 5eg#lating cyberspace *eans reg#lating both *an and the *achine? -t is interesting to note that in cyberspace not only *an b#t also the *achine co#ld be both victi*s as well as perpetrators of cyber cri*es? 1or e,a*ple. a co*p#ter co#ld be seen both as a victi* as well as a victi*i%er? That is. a co*p#ter can be hac$ed into and at the sa*e ti*e. the sa*e co*p#ter can act as a reso#rce of hac$ing? Wo#ld one say the si*ilar things for a $nife or a pistol3 Both $nife and pistol can be considered as a victi*i%er. b#t never a victi*A This *a$es cyberspace a very interesting *edi#* in the eyes of law? The law for cyberspace is to reg#late the *an and the *achine? &ince. one can reg#late *an. b#t not the *achineA The @#estion (

is how to reg#late the *achine3 Fere. the law wor$s on a pre*ise that if *an co#ld be reg#lated. then the *achine can also be reg#lated? C!+er L$&s: A Ne& Be%innin% As disc#ssed above. cyberspace is an e*erging digital *edi#* and re@#ires a set of laws to reg#late h#*an behavio#r in the cyberspace? The body of s#ch laws can be referred to as cyber laws? -t is obligatory to note that the basic obDective of cyber laws is to reg#late h#*an behavio#r and not technology? Cyber laws are technology intensive laws. advocating the #se b#t not the *is#se of technology? The idea is to artic#late that the r#le of law e,ists in cyberspace? Cyberspace re@#ires cyber law? -t wo#ld be a *isno*er to s#ggest that cyber laws are *eant to chec$ the h#*an behavio#r in cyberspace only? Any physical act. which gets translated into violation of any right of a person in digital *edi#* 'cyberspace(. wo#ld be treated as cyberspace violations? et #s not forget that it is the technology platfor* and its application. which separates cyberspace fro* physical world? 1or e,a*ple. A. a person with a cri*inal intent #ses co*p#ter or co*p#ter networ$ to defra#d another person. B then in s#ch a case A co#ld be p#nished #nder cyber law provisions? -t was his actions in the physical world. which got *anifested in the cyberspace? De,inin% C!+er L$& The word Gcyber lawH enco*passes all the cases. stat#tes and constit#tional provisions that affect persons and instit#tions who control the entry to cyberspace. provide access to cyberspace. create the hardware and software which enable people to access cyberspace or #se their own devices to go BonlineC and enter cyberspace? -f one e,a*ines the aforesaid definition. basic concept of cyber laws evolves aro#nd the phrase! Baccess to cyberspaceC? Fow one can access cyberspace3 The re@#ire*ent fro* the point of #ser is! )

'a( a co*p#ter syste* with a *ode* facility. a telephone line and an -nternet ho#rs #sage pac$ fro* a networ$ service providerI or 'b( a co*p#ter syste* with a *ode* facility and a broadband connection fro* a networ$ service provider? Witho#t s#ch basic hardware and software tools. one cannot access cyberspace? P#blic and private instit#tions in the for* of 4overn*ent's(. hardware *an#fact#rers and software application providers act as a gate$eepers of cyberspace? Access is granted to those. who have got the necessary tools to access cyberspace? With a clic$ of a *o#se or p#nching $eystro$es. gates of cyberspace are opened for the #sersC? -t is D#st a Bclic$-ofa-*o#seC that separates an individ#al fro* physical space to cyberspace? Any illegal. wrongf#l or dishonest act co**itted in cyberspace wo#ld be covered #nder the cyber law provisions? et #s ta$e an e,a*ple of a person. J? By clic$ of a *o#se. he *oves to a website based in "ew Kor$ and p#rchases goodsI again by a clic$ of a *o#se. he *oves to a website based in Fong Long and p#rchases goodsI and once again by a clic$ of a *o#se. he *oves to a website based in Paris? &#ppose J has #sed a forged global credit card to *a$e p#rchases in "ew Kor$. Fong Long and Paris? Did J co**it an offence3 Kes. he did. b#t this wo#ld fall #nder the category of Bcyber fra#dC. rather than a case of a physical fra#d and J wo#ld be tried #nder the cyber cri*inal provisions? -n other words. the effectiveness of cyber law co*es fro* the fact that it legally binds actions of any individ#al #sing co*p#ter. co*p#ter syste* or co*p#ter networ$s? -n the above e,a*ple. it was actions 'of J(. which were in the for* of set of co**ands given to co*p#ter by *eans of a clic$ of a *o#se or a $eystro$e? Co*p#ter e,ec#ted the co**and as given by J? 1ro* the legal perspective. it was a cyber fra#d perpet#ated by the J? The co*p#ter acted as it was #nder the control of J? "evertheless. cyber law wo#ld e,tend its D#risdiction over both *an and *achine 'co*p#ter( and th#s by

i*plications it legally binds all individ#als and *achines accessing cyberspace?

B1i(din% B('-2s ', C!+er L$& Cyber law is a new branch of law and is growing very fast? -t is i*perative that one sho#ld $now the three basic b#ilding bloc$s of cyber laws. na*ely! 'a( "eti%ens. 'b( Cyberspace. and 'c( Technology Netizens Cyber law has introd#ced a very i*portant concept of neti%ens? Who are they3 Which co#ntry. they belong to3 Are they recogni%ed as citi%ens #nder the Constit#tion of their co#ntry3 Do they have f#nda*ental rights3 Do they have f#nda*ental d#ties. as well3 A "eti%en is an inhabitant of the worldwide world '-nternet(? Fe is the one. who inhabits the "et and #ses it as an e,tension of his day-to-day physical world? Fe replicates his physical world actions. li$e sociali%ing. b#ying. selling etc? in an online *edi#*? Fe transcends geographical space and ti*e by a clic$ of a *o#se? Fe recogni%es no *an-*ade or geographical bo#ndaries? There is no end to what a neti%en can do? The *ost interesting facet of being neti%en is that he co#ld be anony*o#s. na*eless and faceless person. if he wants to and yet can ind#lge in all $ind of activities? A neti%en differs fro* a citi%en in the sense that a neti%en #nli$e a citi%en has no constit#tional g#arantees? "o Constit#tion recogni%es neti%ens as citi%ens and grant the* constit#tional rights and d#ties? Constit#tion of a co#ntry is *eant for a specific geographical area? -t is *eant for the people that reside within that geographical area? "eti%ens being the traveler of digital highways are basically na*eless. faceless no*ads crisscrossing the worldwide for convenience? B#t one sho#ld not forget that in cyberspace. +

neti%ens e,ist. citi%ens donCtA -t is for these neti%ens. cyber laws have co*e into e,istence? Believe it or not. over a period of ti*e *any virt#al co#ntries have co*e #p on the "et? They are no longer fig*ent of i*agination? Best-$nown is the Lingdo* of Talossa? -t was fo#nded by a schoolboy. 5obert Ben 2adison. in <;>;? Lingdo* of Talossa has its own lang#age. govern*ent. written history. laws. constit#tion and citi%ens? T#e 3in%d'm ', T$('ss$ is an independent. sovereign nation in "orth A*erica. which seceded peacef#lly fro* the Enited &tates in <;>; 'b#t weMre not s#re the Enited &tates noticed(? +#r Lingdo* is located on the western shore of a 2Nr TalossNn ' a$e 2ichigan(. s#rro#nded by the E?&? city of 2ilwa#$ee. Wisconsin. b#t today *ost of o#r active citi%ens live in other parts of the Enited &tates and Canada. )#rope. &o#th A*erica. Asia. and Africa/? -nterestingly. li$e. Lingdo* of Talossa there are other virt#al nation states '*icronations(. li$e Astr#*ia. Thrace. yonesse and A*o$olia? Cyberspace Cyber law is for cyberspace? This does not *ean that cyber laws wo#ld only reg#late whatever being done in the cyberspace only? &ince. it is diffic#lt to separate o#t between the physical space and the cyberspace. it is only logical that cyberspace to incl#de the activities. which have happened in the physical space just prior to entry into cyberspace? Cyberspace is a $ey b#ilding bloc$ of cyber law? -n fact. one of the *ost i*portant facets of cyber law is to act as a bridge between the physical space and the cyberspace. in order to reg#late interface between *an and *achine? Cyberspace in that way is a B*an *ade *achine worldC reshaping itself periodically? The @#estion is sho#ld it be reg#lated by physical set of
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See# www%"ingdomofta o!!a%net

laws already in e,istence or sho#ld be reg#lated by new set of laws3 -t is i*portant to note that the present of cyber laws are an e,tension of physical laws in cyberspace? These are Banalogy-see$ingC laws? 1or e,a*ple. if law of contract e,ists between a b#yer and seller in the physical world. then the sa*e law of contract to be ta$en into acco#nt. if there is e-co**erce involving a b#yer and a seller in electronic *ar$et place? -nterestingly. neti%ens are even p#rchasing virt#al properties on the worldwide web? 1or e,a*ple. &econd ife7 is a 7 D virt#al world entirely created by its residents? Believe it or not. it is inhabited by *illions of residents fro* aro#nd the globeA )ven ebay?co* cond#cts land a#ctions of parcels of land available on &econd ife on reg#lar basis? Technology Cyber laws are technology intensive laws? They revolve aro#nd technology and its applications? Cyber laws establish nor*s of accepted h#*an behavio#r in cyberspace? Presently. there e,ists two-technology school of laws! one is called. Technology &pecific &chool and the other one. Technology "e#tral &chool? The debate is what sort of laws sho#ld be adopted and why3 Technology &pecific &chool arg#es that the law sho#ld recogni%e only one given set of technology or technology standard? That is. law treats other standards as illegal. non-binding and th#s not per*issible? The *ain advantage of this &chool is that it creates a single technology platfor* for the entire co**#nity? The *ain disadvantage of this &chool is that it $ills technological innovations and helps in creating *onopolistic b#siness. which is bad for the co**#nity?

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See# www%!econd ife%com

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Technology "e#tral &chool arg#es that the law sho#ld re*ain ne#tral when it co*es to giving d#e recognition to any technology or technology standards? -t treats all technologies or technology standards at par? aw does not discri*inate between the technologies? The *ain advantage of this &chool is that helps in providing efficient and #sef#l technologies for the co**#nity? The *ain disadvantage of this &chool is that it creates a *#ltiple technology platfor*s and *ay increase the cost of assi*ilation of technology for the entire co**#nity? -t is i*portant to note that both technology specific law and technology ne#tral laws *ay co-e,ist at any given point of ti*e? +ften it is seen that the developed co#ntries with a wider technology #sersC base have *#ltiplicity of technology platfor*s. whereas the developing co#ntries with a narrow technology #sersC base have one co**on technology platfor* to begin with? The reason is that in a developing co#ntry. technology is at a pre*i#* and hence the #sers are few. whereas in a developed co#ntry there are large n#*ber of #sers and there is technology *at#rity and hence are *#ltiplicity of technology platfor*s? 1or e,a*ple. technology specific law grants legal validity to digital signat#re created #sing a specific technology only? Digital signat#res created #sing any other technology not prescribed #nder law wo#ld be considered as invalid? A technology ne#tral law regi*e wo#ld not i*pose any s#ch restrictions? Digital signat#res 'or )lectronic &ignat#res( created by any technology wo#ld welco*e? -n -ndia. we follow a technology specific regi*e? Ender the law 'The -nfor*ation Technology Act. /000(. digital signat#res #sing prescribed asy**etric cryptosyste* standard is considered legally valid? Ese of any other standards wo#ld render the said digital signat#re invalid? When this Act ca*e into e,istence. the technology #sage was @#ite low. b#t with the passage of ti*e in -ndia technology *at#rity has increased and thatCs why in the new -nfor*ation Technology 'A*end*ent( Bill. /009 advocates *igration

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towards the technology ne#tral regi*e? The tr#th is. co#ntries li$e. &o#th Lorea. 2alaysia and 4er*any also had technology specific legislation. b#t in /00= & /008. they all have *igrated to technology ne#tral legislation? S-'.e ', C!+er L$&s Tho#gh st#dy of cyber laws is a new branch of law. b#t it is to#ching all other areas of law having a technology co*ponent? aws related to eco**erce. online contracts. copyright. trade*ar$. b#siness software patenting. e-ta,ation. e-governance and cyber cri*es fall within the *eaning and scope of cyber laws?

($" E)-'mmer-e L$& )-co**erce defined si*ply. is the co**ercial transaction of services in an electronic for*at? -t is also referred to as Gany transaction cond#cted over the -nternet or thro#gh -nternet access. co*prising the sale. lease. license. offer or delivery of property. goods. services or infor*ation. whether or not for consideration. and incl#des the provision of -nternet accessH=? The E& Cens#s B#rea# *eas#res e-co**erce by loo$ing at Gthe val#e of goods and services sold online whether over open networ$s s#ch as the -nternet. or over proprietary networ$s r#nning syste*s s#ch as )D-?8 Any disp#te involving any e-co**erce activity. whether at b#yer or sellerCs end. wo#ld *ean disp#te happening in the cyberspace?

(+"

On(ine C'n r$- s The -ndian Contract Act. <:>/ lays down that for a contract to happen

there has to be proposal. assent to the proposal. which transfor*s into a pro*ise? A pro*ise s#pported by consideration beco*es an agree*ent and an agree*ent enforceable by law is contract? +nline contracts represent the
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The Internet Tax .reedom Act /IT.A0# 1,,+% 1S Department of Commerce# 1S Cen!u! 2ureau# E3Stat# at 1 /4arch# 1+# 2--20%

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for*ation of series of contract#al obligations in an online environ*ent? 1ro* a legal perspective. an online contract follows the sa*e pre-re@#isite as being followed in offline 'physical( contract? At a basic level. online contract for*ation re@#ires online offerOproposal by one party and its online acceptance by the other party? )lectronic contracts. by their very nat#re. are dyna*ic and often *#lti layered transactions? With a layered contract. agree*ent to a contract *ay not occ#r at a single point in ti*e? There e,ist a chain of s#ccessive events e-offer. e-acceptance. consideration etc?. co*bination of which *ay lead to electronic contract for*ation? The legality of electronic co**#nication process c#l*inating into electronic contracts is also based on co**on law of contract? -n online contracting process. technology is an added di*ension and hence. it is i*portant that the contracting parties sho#ld be pr#dent and aware of their obligations and liabilities before they clic$ on on-screen G- AgreeH te,t or icon? (-" C'.!ri%# Copyright is abo#t protecting original e,pression? Copyright protects

Goriginal wor$s of a#thorshipH that are fi,ed in any tangible *edi#* of e,pression fro* which they can be perceived. reprod#ced. or otherwise co**#nicated either directly or with the aid of a *achine or devicei? Copyright arises as soon as a Bwor$C is created 'or fi,ed(? -t does not e,tend to any idea. proced#re. process. syste*. *ethod of operation. concept. principle or discovery. #nless fi,ed in a tangible for*? -n the digital *edi#*. every web page accessible or p#blished in the World Wide Web is to be ta$en as a literary BcopyrightableC wor$? -t protects all written te,t *aterials. graphic i*agesO designs. drawings. any lin$ed so#nd. video files or fil*s. whether part of a web page or a website? That is. copyright protects the Gloo$ and feelH of a website? A copyright owner has five e,cl#sive stat#tory rights s#ch as! 'a( to fi, 'store( the infor*ation in a tangible for*? 'b( to reprod#ce the copyrighted wor$? 1&

'c( to sell. rent. lease. or otherwise distrib#te copies of the copyright wor$ to the p#blic? 'd( to perfor* and display p#blicly the copyright wor$? 'e( to prepare derivative wor$s based on the copyright wor$? -t is significant to note that the activities li$e caching. *irroring. downloading. scanning. peer-to-peer file sharing etc? prima facie. infringe e,cl#sive stat#tory rights of a copyright owner? (d" Tr$dem$r2 -nternet and the worldwide web represent the online *edi#*? -t is

nat#ral that a b#siness entity clai*ing ownership of certain trade*ar$s wo#ld li$e to e,tend its *onopoly to this new *edi#* as well? B#t the *onopoly rights of trade*ar$ owners to own. license. sell. e,hibit. *ar$et or pro*ote are being threatened by web based technology tools. li$e search engines. *eta tags. and hyperlin$s? &i*ilarly. in the last <8 years. do*ain na*es have beco*e a $ind of Beco**erce *ar$sC in the online *edi#*? These are digital b#siness addresses a point of b#siness contact or transaction? 1#nctionally spea$ing. Do*ain na*es provide a syste* of easy-to-re*e*ber -nternet addresses. which can be translated by the Do*ain "a*e &yste* 'D"&( into the n#*eric addresses '-nternet Protocol '-P( n#*bers( #sed by the networ$? Cybers@#atters. Typos@#atters and other trade*ar$ infringers have *ade the web a legal *inefield? The @#estions that has fo,ed the co#rts for *any years now are -s do*ain na*e a property3 -f yes. to who* does s#ch property belong3 -s a do*ain na*e the property of the first person that registers it or is it the property of the trade*ar$ owner that has invested ti*e and *oney developing goodwill and rep#tation associated with the *ar$3

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(e"

B1siness S', &$re P$ en in% Patent protects a process. while copyright protects expression? Patents

confer stronger rights than copyrights? +ne co*p#ter progra**e consists of tho#sands of instr#ctions? )very progra**e is #ni@#e. as it is a co*bination of logically arranged algorith*s and techni@#es? Progra**es are covered #nder copyright law. whereas. algorith*s and techni@#es @#alify for patenting9? 1or *any years. it was held that since. software is strings of logical instr#ctions. G*ental processesH and hence co#ld not be patented? Also they had to be preserved in the p#blic do*ain as the Gbasic tools of scientific and technological wor$H? ater. software was granted patents for ind#strial processes? With the advent of worldwide web and e-co**erce co*ing of age. the debate of software patenting ac@#ired a new platfor* in the for* of Bb#siness software patentsC? Big e-co**erce etailers. li$e A*a%on. Priceline and )bay are going for patenting the bac$end software technologies of their front-end operations? Whether. it co#ld be A*a%onCs <Clic$ *odel. or PricelineCs reverse a#ction *echanis*? By patenting s#ch b#siness *ethods. co*panies are not only protecting their reven#e *odels b#t are also adding significant b#siness val#e to their sites? ),tending patents in e-b#siness environ*ent wo#ld *ean *onopolysing co**onplace Be-b#siness *ethodsC? (," E) $4$ i'n The advent of e-co**erce has opened #p a PandoraCs bo, how to ta,

e-co**erce3 -s it possible to ta, s#ch transactions in view of nat#re of -nternet3 &ho#ld e-co**erce be ta,ed on lines of physical co**ercial activities3 There are *ore @#estions than answers?

Sharma# 5a"u # 2--)6 7and$oo" of Cy$er 8aw!# 4acmi an /India0

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The broad consens#s that has e*erged is! 'i( that online transactions sho#ld not be i**#ne fro* ta,ation solely beca#se the sale is cond#cted thro#gh a *edi#* distinct fro* that of a traditional physical b#sinesses. and 'ii( that it is not pr#dent to ta, these online transactions p#rely on the basis of traditional ta,ation approach applicable to offline b#sinesses? As e-co**erce represent online transactions involving cons#*er's( and b#siness 'es( is occ#rring instantaneo#sly. which *a$es it diffic#lt to deter*ine who the b#yer and seller are and where they are respectively located3 Another @#estion is how to ta, s#ch online transactions3 1ro* a point of electronic ta,ation following iss#es *ay e*erge>! Who is the c#sto*er3 Where does the c#sto*er live3 Did the transaction constit#te sale of tangible property. the perfor*ance of a service. or the transfer of intangible property3 Which D#risdiction has the a#thority to ta, the sale3 What online activities constit#te sales for sales ta, p#rposes3 What constit#tes a b#siness connectionOs#bstantial ne,#s within a ta,ing D#risdiction3 Can Central andOor &tate 4overn*ent's( technologically capable to *onitor all online transactions3 What $ind of record retention re@#ire*ents is necessary for ta, p#rposes3 Answers to the aforesaid set of @#estions wo#ld lay down the gro#nd r#les of electronic ta,ation vis-P-vis e-co**erce? What sho#ld be done3 &ho#ld we wait and for*#late new r#les on e-ta,ation or #ntil then #tili%e the traditional ta, r#les available to #s to resolve these co*ple, iss#es? -t is not to be forgotten that cyber laws are still in nascent stage of develop*ent and are developing by see$ing analogies fro* the physical world?

4ichae 8% 9u!tad and Cyru! Daftary# 2--26 E3$u!ine!! 8ega 7and$oo"# A!pen 8aw : 2u!ine!!

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E)%'vern$n-e The World Ban$ defines e-governance as the #se of infor*ation and

co**#nication technologies by govern*ent agencies to transfor* relations with citi%ens. b#siness and other ar*s of the govern*ent? -t involves infor*ation technology enabled initiatives that are #sed for i*proving 'i( the interaction between govern*ent and citi%ens or govern*ent and b#sinesses e-services 'ii( the internal govern*ent operations - e-administration and 'iii( e,ternal interactions e-society? )-governance is a $ind of Bwindow of opport#nityC facilitating a *#ch faster. convenient. transparent and dyna*ic interaction between the govern*ent and its people? -t has also been referred to as Bi-governanceCintegrated governance< as it integrates people. processes. infor*ation and technology in the service of achieving governance obDectives? -t sho#ld not be forgotten that there e,ists an inherent dichoto*y between the syste* of governance and technology 'web(? +ne on hand the govern*ent syste* is reg#lated. hierarchical and static. whereas on the other technology is creative. non-hierarchical and dyna*ic:? The @#estion is how to collate the syste* of governance with technology? )-governance practices need legal sanctity? -t is th#s i*perative that basic govern*ental f#nctions and practices fro* p#blication of an )lectronic 4a%ette to acceptance. iss#ance. creation. retention or preservation of any doc#*entI and participation in any *onetary transaction in the electronic for* sho#ld have a force of law behind the*? Cyber laws facilitate e-governance practices by pro*oting vario#s egovernance initiatives. li$e electronic filing of doc#*ents with the 4overn*ent agencies. #se of electronic records and digital signat#res in 4overn*ent and its agencies. retention or preservation of electronic records

Sharma# 5a"u # 2--*6 Information Techno ogy ; 8aw : <ractice# 1niver!a 8aw <u$%

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in electronic for* and p#blication of r#le. reg#lation. etc?. in )lectronic 4a%ette?

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C!+er Crimes Cyber cri*e is a collective ter* enco*passing both Bcyber

contraventionsC and Bcyber offencesC? The word BcyberC is synony*o#s with co*p#ter. co*p#ter syste* or co*p#ter networ$? Th#s. cyber cri*e *ay be defined as any illegal act that involves a co*p#ter. co*p#ter syste* or co*p#ter networ$. i?e? any illegal act for which $nowledge of co*p#ter technology is essential for its perpetration. investigation. or prosec#tion? The mens rea9 in case of Bcyber cri*eC co*prises of two ele*ents? 1irst. there *#st be Bintent to sec#re access to any progra* or data held in any co*p#ter. co*p#ter syste* or co*p#ter networ$? &econdly. the person *#st $now at the ti*e that he co**its the actus reus that the access he intends to sec#re is #na#thori%ed? The intent does not have to be directed at any partic#lar progra* or data or at progra*s or data held in any co*p#ter. co*p#ter syste* or co*p#ter networ$? The difference between Bcyber contraventionC and Bcyber offenceC is *ore abo#t the degree and e,tent of cri*inal activity rather than anything else? 1or e,a*ple. a *ere #na#thori%ed access to a co*p#ter. co*p#ter syste* or co*p#ter networ$ *ay a*o#nt to Bcyber contraventionC b#t for a Bcyber offenceC it is the specific cri*inal violation that res#lted fro* the #na#thori%ed access to a co*p#ter. co*p#ter syste* or co*p#ter networ$ that has to be ta$en into consideration? Cyber laws provide the basic *echanis* to prosec#te any person. who is reasonably s#spected of having co**itted or of co**itting or of being
,

4en! rea= i! a !tate of mind% 1nder crimina aw# mens rea i! con!idered a! the >gui ty intention= and un e!! it i! found that the ?accu!ed@ had the gui ty intention to commit the ?crime@ he cannot $e he d ?gui ty@ of committing the crime% ADirector of Enforcement v M.C.T.M. Corpn. (P) Ltd%# /1,,)0 2 SCC '*1B

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abo#t to co**it any offence #sing any co*p#ter. co*p#ter syste* or co*p#ter networ$? Cyber laws co*bating cyber cri*es have an overriding effect on any other laws for the ti*e being in force? C!+er L$&s 0 Indi$ -n -ndia the cyber laws are synony*o#s with the -nfor*ation Technology Act. /000? The -T revol#tion. in -ndia started in *id <;:0s and since then it has been *oving li$e a D#ggerna#t? While -ndia was riding the infor*ation s#perhighway witho#t any traffic r#les. other co#ntries in the world were fra*ing r#les and reg#lations to control access to -nternet and also for b#siness over the worldwide web? &ince -nternet is not confined within the geographical li*its of a co#ntry. one of the Enited "ations agencies BEnited "ations Co**ission on -nternational Trade awC 'E"C-T5A ( proposed a certain level of #nifor*ity of laws in all *e*ber co#ntries? To this effect. the 2odel aw on )lectronic Co**erce was adopted by the Enited "ations Co**ission on -nternational Trade aw 'E"C-T5A (<0 in its twenty-ninth session? ater a resol#tion<< of the 4eneral Asse*bly reco**ended that all &tates give favo#rable consideration to the 2odel aw on )lectronic Co**erce when they enact or revise their laws. in view of the need for #nifor*ity of the law applicable to alternatives to paper-based *ethods of co**#nication and storage of infor*ation? -n -ndia. the then Depart*ent of )lectronics 'Do)( was given the *andate to have an enact*ent in place. on the lines of the E"C-T5A Cs 2odel aw on )lectronic Co**erce soon after its adoption by the E" 4eneral Asse*bly? -t was a foresight on the part of the 4overn*ent of -ndia to initiate the entire process of enacting -ndiaCs first ever infor*ation
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The 1N Cenera A!!em$ y $y it! re!o ution 22-( /DDI0 of Decem$er 1*# 1,)) created 1nited Nation! Commi!!ion on Internationa Trade 8aw /1NCIT9A80 with a mandate to further the progre!!ive harmoniEation and unification of the aw of internationa trade% 11 9e!o ution AF9ESF(1F1)2 adopted $y the Cenera A!!em$ y of the 1nited Nation! on Ganuary &-# 1,,*%

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technology legislation soon after its adoption by the E" 4eneral Asse*bly? There were two reasons! 'a( to facilitate to the develop*ent of a sec#re reg#latory environ*ent for electronic co**erce by providing a legal infrastr#ct#re to govern electronic contracts. a#thenticity and integrity of electronic transactions. the #se of digital signat#res and other iss#es related to electronic co**erceI and 'b( to showcase -ndiaCs growing -T $nowledgebase and the role of 4overn*ent in safeg#arding and pro*oting -T sector? -ndia enacted the -nfor*ation Technology Act. /000 based on the E"C-T5A Cs 2odel aw on )lectronic Co**erce? -t received the assent of the President on the Q#ne ;. /000 and ca*e into force on +ctober <>. /000? -t is i*portant to #nderstand that while enacting the -nfor*ation Technology Act. /000. the legislative intent has been not to ignore the national perspective of infor*ation technology and also to ens#re that it sho#ld have an international perspective as advocated by the said 2odel aw? A..r'$-# ', #e In,'rm$ i'n Te-#n'('%! A- 5 6*** &ince the -nfor*ation Technology Act. /000 is based on the E"C-T5A Cs 2odel aw on )lectronic Co**erce. which provides for Gf#nctional e@#ivalent approachH? -t is based on an analysis of the p#rposes and f#nctions of the traditional paper-based re@#ire*ent with a view to deter*ining how those p#rposes or f#nctions co#ld be f#lfilled thro#gh electronic-co**erce techni@#es? The idea is that the adoption of the f#nctional-e@#ivalent approach sho#ld not res#lt in i*posing on #sers of electronic co**erce *ore stringent standards of sec#rity 'and the related costs( than in a paper-based environ*ent? 1or e,a*ple. it treats paper doc#*ent and its electronic e@#ivalent 'electronic record( at par? That is. if a paper doc#*ent is ad*issible in a co#rt

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of law. then its f#nctional e@#ivalent in the Belectronic for*C. i?e?. the electronic record sho#ld also be ad*issible in the co#rt of law?

Aims $nd O+7e- ives ', #e In,'rm$ i'n Te-#n'('%! A- 5 6*** The prea*ble of the -nfor*ation Technology Act. /000 reads G An Act to provide legal recognition for transactions carried o#t by *eans of electronic co**#nication. co**only referred to as Gelectronic co**erceHC which involve the #se of alternatives to paper-based *ethods of co**#nication and storage of infor*ation. to facilitate electronic filing of doc#*ents with the 4overn*ent agenciesH? The ai*s and obDectives of the Act *a$e it! 'a( a facilitating Act. 'b( an enabling Act. and 'c( a reg#lating Act ($" A F$-i(i $ in% AThe -nfor*ation Technology Act. /000 is a facilitating Act as it facilitates both e-co**erce and e-governance? -nterestingly. the E"C-T5A 2odel aw of )-co**erce on which this Act is based has *ade no reference to e-governance? B#t it was the collective wisdo* of the legislat#re. which saw the necessity of introd#cing concepts li$e e-governance in this Act? -n fact. the entire BChapter ---C of the Act is devoted to e-governance and egovernance practices? There are > sections in the aforesaid Chapter --- of the Act. fro* section = to section <0. which deal with e-governance iss#es? These sections for* the basic law related to electronic governance rights. which have been conferred to the persons and the 4overn*ent's( both Central and &tate 4overn*ents? -t is applicable to the whole of -ndia. incl#ding the &tate of Qa**# and Lash*ir? -t is i*portant to #nderstand that the -nfor*ation Technology Act. /000 is the first enact*ent of its $ind in -ndia. which grants Be-governance rightsC to the citi%ens of -ndia? 21

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An Enabling Act The -nfor*ation Technology Act. /000 is an enabling Act as it enables a

legal regi*e of electronic records and digital signat#res? That is. in order to be called legally binding all electronic records. co**#nications or transactions *#st *eet the f#nda*ental re@#ire*ents. one a#thenticity of the sender to enable the recipient 'or relying party( to deter*ine who really sent the *essage. two *essageCs integrity. the recipient *#st be able to deter*ine whether or not the *essage received has been *odified en ro#te or is inco*plete and third. non-rep#diation. the ability to ens#re that the sender cannot falsely deny sending the *essage. nor falsely deny the contents of the *essage? The Act provides for Digital signat#res</. which *ay be considered f#nctional e@#ivalent to physical world signat#res capable of *eeting all the f#nda*ental re@#ire*ents. li$e a#thenticity of the sender. *essage integrity and non-rep#diation? Digital signat#re is a *isno*er? -t does not *ean scanning the handwritten signat#res electronically? -n fact by applying digital signat#res one *ay act#ally transfor* an electronic *essage into an alphan#*eric code? -t re@#ires a $ey pair 'private $ey for encryption and p#blic $ey for decryption( and a hash f#nction 'algorith*(?

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A Regulating Act The -nfor*ation Technology Act. /000 is a reg#lating Act as it

reg#lates cyber cri*es? As stated above. cyber cri*e is a collective ter* enco*passing both Bcyber contraventionsC and Bcyber offencesC? The Act not only de*arcates contraventions fro* offences. b#t also provides a separate

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It i! $a!ed on a!ymmetric cryptography# wherein two different "ey! are u!ed to encrypt and decrypt the e ectronic record!% A private "ey i! u!ed to encrypt an e ectronic record and a pu$ ic "ey i! u!ed to decrypt the !aid record% <rivate "ey i! "ept confidentia and i! to $e u!ed $y the !igner /!u$!cri$er0 to create the digita !ignature# wherea! the pu$ ic "ey i! more wide y "nown and i! u!ed $y a re ying party to verify the digita !ignature and i! i!ted in the digita !ignature certificate%

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redressal *echanis* for both? The classification of cyber contraventions and cyber offences is as follows!

C!+er C'n r$ven i'ns 1nder #e AC!+er O,,en-es 1nder #e ADeals pri*arily with #na#thori%ed Deals with co*p#ter. co*p#ter access to co*p#ter. co*p#ter syste* syste* or co*p#ter networ$ related or co*p#ter networ$ &ection =7 'a( to 'h( 2ay res#lt in civil prosec#tion Q#dicial proceedings before AdD#dicating +fficer serio#s offences &ections 98->= 2ay res#lt in cri*inal prosec#tion the Q#dicial proceedings to be held before the appropriate BCo#rtC as per the nat#re of offence. whether cogni%able Provision of appeal? Power to investigate contravention lies with or non-cogni%able Provision of appeal? any Power to investigate any offence lies the with the police officer not below the

AdD#dicating +fficer. Controller or ran$ of Dep#ty &#perintendent of any officer a#thori%ed by hi* Police +ffender liable to pay da*ages by +ffender one crore r#pees to the person so both affected? Table: C!+er C'n r$ven i'ns $nd C!+er O,,en-es 1nder #e AWith the enact*ent of the -nfor*ation Technology Act. /000. in -ndia. the law has ta$en a @#ant#* D#*p to incl#de even the intangibles #nder its p#rview? This Act is a proactive piece of legislation and is not only in t#ne with the E"C-T5A Cs 2odel aw on )lectronic Co**erce b#t it also #nfolds vario#s aspects of infor*ation technology to pro*ote efficient delivery of 4overn*ent services by *eans of reliable electronic records? Cyber laws are new legal reso#rces to chec$ violations in cyberspace? -t wo#ld be wrong to treat the* differently fro* the other widely prevalent physical laws? All laws flow fro* the Constit#tion of a co#ntry and cyber 2& p#nishable with

way of co*pensation not e,ceeding i*prison*ent ter* or fine or with

laws 'of a co#ntry( are no differentA The ai*s & obDectives. scope. approach. criteria of cyber law *ay be different b#t that does not *ean that they are s#perior to the laws applicable previo#sly? The legal constr#ction of cyber law provisions is no different fro* other stat#tes. codes and enact*ents? The idea is to *aintain #nifor*ity with other stat#tory provisions? Cyber laws *ay have been given a special stat#s by the law*a$ers b#t that does not *ean its s#periority in a legal syste*? W#$ C!+er L$&s 8i%# Te$-#9 The p#rpose of st#dying cyber laws is cr#cial fro* todayCs perspective. as technology has beco*e part of o#r everyday e,istence? &t#dy of cyber laws wo#ld provide!

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Sense ', Se-1ri ! The st#dy of cyber law provides a sense of sec#rity to the learner? -t

brings in a level of confidence in the sense that it wo#ld *a$e the learner $nowledgeable abo#t what are his rights in cyberspace and wo#ld beco*e aware of what constit#tes a wrongf#l behavio#r? 1#rther. he wo#ld beco*e aware of the legal re*edies available to hi* in case of violation of his rights in cyberspace? -t wo#ld help the learner to appreciate technology as a law abiding citi%en? (+" :('+$( Re-'%ni i'n Cyber law is a co**on #sage ter* in the legal parlance? -t incl#des legislations s#ch as! -nfor*ation Technology law. Co*p#ter law. -nternet law. )-co**erce law. )-transactions law. Digital signat#re law. )lectronic &ignat#re law etc? -rrespective of the nationality of cyber law legislation's( presently available in the world. the fact is that all s#ch legislations are based on *other law. i?e?. The Enited "ations Co**ission on -nternational Trade 'E"C-T5A ( 2odel aw aw on )-co**erce. <;;9? -t *a$es Cyber law 2'

ed#cation scalable. globally? -n other words. $nowledge of cyber laws of one co#ntry wo#ld help in #nderstanding si*ilar laws elsewhere?

V$(1e Addi i'n To a learner. $nowledge of cyber laws wo#ld be a val#e addition. irrespective of his professional @#alifications and wo#ld certainly help the learner to *ove #p on the val#e chain? Cyber law ed#cation does not call for any speciali%ed $nowledge either in law or technology? -t is a val#able reso#rce to *eet challenges and e,plore opport#nities in the global village? earning abo#t cyber laws is an opport#nity to be in sync with the present day world? 2any believe that cyberspace si*ply cannot be reg#lated? They arg#e that behavio#r in cyberspace. is beyond govern*entCs reach? The anony*ity and *#lti-D#risdictionality of cyberspace *a$es control by govern*ent in cyberspace i*possible? This belief abo#t cyberspace is wrong<7? -t is wrong to ass#*e that its architect#re cannot be changed or that govern*ent cannot ta$e steps to change this architect#re?

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8e!!ig# 8awrence# 1,,,6 The 8aw of the 7or!e# 11& 7arv% 8% 9ev% (-1

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