Grey Areas of IT

Act, 2000
z Submitted by-

Information Gunjan Garg

BCOM LLB SEM 10

Technology laws SEC F, UILS

312/19
 INTRODUCTION

Information Technology act, 2000 has played commendable

role in creating order in E-society in India. It helped in:

1. Facilitating E-commerce, E-governance and E-contract.

2. Establishing supervisory body (CCAs) to supervise

certifying authorities.
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3. Issuing licences to CAs so that they can issue DSC and
ESCs to subscriber.

4. Making consequential amendments in other existing laws

so as to facilitate Ecommerce and E-governance.

Despite the various advantages, Information Technology Act

has certain gray areas which are as follows:
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Main Grey Areas of Information Technology Act, 2000:

No parameter for implementation

In India government and police officials are

computer and technology experts even the
judges are not fully sensitized to the
technology. Therefore, the question of
implementation of Information Technology Act, 2000
does not arise.
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Infringement of IPR

The IT act does not deal with any issues

concerning the protection of Intellectual
Property Rights in the context of online
environment. Though proviso to Section 81 which
was incorporated by the Information Technology
(Amendment) Act, 2008 provides that this act shall
not restrict any person from exercising any right
conferred under the Copyright Act, 1957 or the
Patent Act, 1970, but does not contain special
provisions for protection of IPR such as copyrights,
trademarks or patents etc. in digital medium. The
issues of these IPR in digital medium remains
completely untouched by this act.
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No definition of Cyber crimes

There is no exhaustive definition of cybercrimes

under IT Act.

Jurisdiction

IT Act, 2000 is likely to cause a conflict of

jurisdiction. Cyber jurisdiction or jurisdiction in
cyber space refers to a real-world government
power and a normally existing courts authority of
internet users and their activities in the cyber world.
However, the IT Act does not cover the important
issue of jurisdiction which is needed in deciding
the place of filing the case.
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Domain Name Infringement

E-commerce is based on the system of domain

names. But this act is silent about domain
names and the issues related to it even domain
names are not being defined and the rights and
liabilities of domain name users do not find any
mention in this act. Further this act does not provide
any remedies to keep a check on domain name
infringement.
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Cross Border Tax

In the era of globalisation, international trade and

international taxation policies are very important.
However, the IT Act does not talk about cross
border taxation policies at international level
when the International Contract is signed online
thereby making no room for any remedies in case of
any default.
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Only Broad kinds of Cybercrimes are
covered

IT Act, 2000 covered only 10 offences however with the increased

use of technology by the criminals a number of cyber offences were
added under this act. By the IT (Amendment) Act, 2008 new cyber
offences were inserted whereas 7 existing offences were substituted.
Various crimes like cyber stalking, violating privacy of a person, cyber
terrorism, receiving and retaining stolen computer resource and offences
against computer are made punishable by the Information Technology
(Amendment) Act, 2008. Further, using communication device for
committing any offence is also punishable however following loopholes
regarding cyber offences are still prevalent;

• The term cyber crime and cyber offence is not defined under IT Act,
2000.

• Offences mentioned under Chapter 13 are not exhaustive.

• Various kinds of cyber crimes and internet related crimes are not covered
by the IT Act such as theft of internet hours, cyber theft, chatroom
abuse, cyber defamation, misuse of credit card numbers, etc.

• No illustrations or examples of any such offences are given.

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Important documents not covered

IT Act is not applicable to various documents

covered Schedule 1, important documents such
as power of attorney, will, trust, contract for sale
of immovable property and a negotiable
instrument are mentioned under Schedule 1
hence, not covered under IT Act, 2000. Therefore,
where e-contract relating to immovable property is
formed or will is made in electronic form then
Information Technology Act shall not be applicable.
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Privacy and anti-trust issues

The IT Act, 2000 has not tackled several vital

issues pertaining to e-commerce sphere like
privacy and content regulation to name a few.
Privacy issues have not been touched at all.
Another grey area of the IT Act is that the same
does not touch upon any anti- trust issues.
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No definite procedure for Adjudication

The IT Act talks of Adjudicating Officers who shall adjudicate

whether any person has committed a contravention of any
provisions of this Act of any rules, regulations, directions or
order made there under. How these Adjudicating Officers will
adjudicate the contravention of the Act has not been made
clear or well defined. Further, it has also not been specified
as to how the said Adjudicating Officers shall determine
whether any contravention of the Act or any offence has
been committed by any person outside India. Further,
what authority would these Adjudicating Officers have
viz-a-viz persons outside India who have committed any
cyber crime have not been defined. No definitive procedure
for adjudication by Adjudicating Officers has been
exhaustively spelt out by the IT Act. Further the territorial
jurisdiction of the said Adjudicating Officers and also the
Appellate Tribunal has not been defined
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Section 55 is violative of Chapter
III of the Constitution of India
Section 55 of the IT Act states that no order of the Central
Government appointing any person as the Presiding Officer of a
Cyber Appellate Tribunal shall be called in question in any manner
and no Act or proceeding before a Cyber Appellate Tribunal shall be
called in question in any manner on the ground merely of any defect in
the constitution of a Cyber Appellate Tribunal. The said provisions is
violative of the Fundamental Rights of the citizens as are enshrined
in Chapter III of the Constitution of India and the said provision is not
expedient and is likely to be struck down by the courts. The Central
Government cannot claim immunity in appointments to Cyber Appellate
Tribunal, as the same is contrary to the spirit of the Constitution of India.
Further, it may be submitted that if there is a defect in the constitution of
a Cyber Appellate Tribunal, that goes to the root of the matter and
renders all proceedings and acts of the said Cyber Appellate Tribunal
null & void ab initio
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Less penalties than GDPR

The penalties levied by the IT Act are minimal

compared to GDPR, and the manner of
implementation is even more dismal. For instance,
the IT Act has provided for damages of up to INR 5
crore, under section-43 of the IT Act. However,
there hasn't been a single case when the penalty
levied has exceeded INR 12-13 lakh.
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Safe harbour clause should have some limits

WhatsApp and Facebook are covered by the ‘safe harbour’

provision under Sec-79 of the IT Act, 2000, which exempts
intermediaries from liability in certain instances.

The law states that intermediaries will not be liable for any
third party information, data or communication link made
available by them. Furthermore, the guidelines do not specify
any penalty or damage to be borne by a company if the
rules are not followed. But now penalty is there in the
guidelines 2021

In addition, the Computer Emergency Response Team (CERT)

does not penalize intermediaries to report a breach or
unauthorized access on their own accord.
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Conclusion:

▪ Many of the changes proposed might not be acceptable

to the legal feternity. But I feel that these changes will be
strongly felt near future. I feel that this legislation overall
is a masterpiece. The lacuna it has is only due to the
lack of technical skill while drafting. I would again insist
on these proposed changes to realize in toto the
purpose for enactment of this statute.
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REFRENCES

• Information Technology Act 2000

• India’s IT Act 2000 a toothless tiger? | CSO Online

▪ An analysis of loopholes under Cyber Law

THANKYOU!.