Cyber torts are the latest and perhaps the most complicated problem in the cyber world.

The Internet is a shopping mall, community center, bank, insurance broker, grocery store,
news source, and a way to handle myriad day-to-day chores such as renewing your
driver’s license. Although the Internet is an exciting new forum for informational and
commercial exchange, it is also an instrument of many civil wrongs, appropriately termed
“cyber-torts.” Cybertort harm includes financial injuries, reputational damage, theft of
trade secrets, and invasions of privacy.

Cyber Torts can simply be described as torts or violations of a right done over
cyberspace.1 A cyber tort falls in the realm of using the Internet or computers to commit a
negligent or intentional civil wrong against others. 2 However, most cyber torts are also
criminal offences. Cyber torts are rapidly increasing and the ramifications of such torts
can have serious effects, not only on the individual but on society as a whole.
Distinction Between Conventional And Cyber Tort
There is apparently no distinction between cyber and conventional tort. However on a
deep introspection we may say that there exists a fine line of demarcation between the
conventional and cyber tort, which is appreciable. The demarcation lies in the
involvement of the medium in cases of cyber tort. The sine qua non for cyber tort is that
there should be an involvement, at any stage, of the virtual cyber medium i,e. Cyber
space.
Distinction Between Cyber Crime And Cyber Tort
There are specific distinctionS between cyber crime and cyber torts which has to be
cleared when we are discussing cyber torts.

The cyber crime includes hacking/cracking, Possession of unauthorised information ,

cyber terrorism against government organisations ,distribution of pirated software ,
harassment through emails , cyber stalking , dissemination of obscene material on the
internet , defamation , hacking/cracking , indecent exposure , computer vandalism ,

1
“About Identity Theft - Deter. Detect. Defend. Avoid ID Theft." Federal Trade Commission. Web.
<http://www.ftc.gov/bcp/edu/microsites/idtheft/consumers/about-identity-theft.html>.
2
Ibid
transmitting virus , internet intrusion , unauthorised control over computer systems ,
pornography , exposing the youth to indecent material , Trafficking.
1.
Cyber torts include cyber stalking, breach of privacy , cyber obscenity and cyber
defamation.
So there may be some elements which may be common in both but there are
several differences between the two.

Reasons For Occurrence Of Cyber Tort

Hart in his work “The Concept of Law” has said ‘human beings are vulnerable so
rule of law is required to protect them’. 3 Applying this to the cyberspace we may
say that computers are vulnerable so rule of law is required to protect and
safeguard them against cyber tort. The reasons for the vulnerability of computers
may be said to be:

1. Capacity to store data in comparatively small space- The computer has unique
characteristic of storing data in a very small space. This affords to remove or
derive information either through physical or virtual medium makes it much more
easier.

2. Easy to access-The problem encountered in guarding a computer system from

unauthorised access is that there is every possibility of breach not due to human
error but due to the complex technology. By secretly implanted logic bomb, key
loggers that can steal access codes, advanced voice recorders; retina imagers etc.
that can fool biometric systems and bypass firewalls can be utilized to get past
many a security system.

3. Complexity of systems-The computers work on operating systems and these

operating systems in turn are composed of millions of codes. Human mind is
fallible and it is not possible that there might not be a lapse at any stage. These

3
H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994), p. 64
 lacunas can be taken advantage of and computer security systems can be
penetrated into.

4. Negligence- Negligence is very closely connected with human conduct. It is

therefore very probable that while protecting the computer system there might be
any negligence, which in turn provides a loop hole to gain access and control and
in turn misuse the computer system.

5. Loss of evidence- Loss of evidence is a very common & obvious problem as all
the data are routinely destroyed as they are updated every next moment. Further
collection of data outside the territorial extent also paralyses this system of
investigation.

Examples of Cyber Torts include;

Email and/ or Text Harassment

This is the abusive use of the Internet to send unwanted, excessive and inordinate
amounts of emails, texts, whatsapps etc to another. This type of online activity can be
compared to harassment through letters.
Cyber-Stalking
This tort involves following an individual’s movements across the Internet by posting
messages usually directed to the individual (particularly threatening or obscene) on
websites frequented by the individual, intentionally entering and posting on the chat-
rooms or internet forums frequented by the individual and constantly overwhelming the
individual with emails, texts, whatsapp etc.4
Dissemination through the internet of obscene, offensive or prohibited materials
inclusive of indecent exposure and pornography

4
Spitzberg, Brian H.; Hoobler, Gregory (February 2002). "Cyberstalking and the technologies of
interpersonal terrorism". https://web.archive.org/web/20120114131647/http://www-rohan.sdsu.edu/
~bsavatar/articles/Cyberstalking-NM%26S02.pdf
This tort can take several forms. This includes hosting a web site containing these
obscene materials, using computers for producing these obscene materials, downloading
these obscene materials via the Internet.
Defamation
This is the intentional false communication of information that injures the individual’s
reputation or good name, exposing the individual to contempt, hatred, ridicule or scorn.
Defamation through the internet or cyber defamation is simply the digital counterpart to
typical defamation.5
Online Impersonation
This tort occurs when an individual, without consent, uses the name or persona of another
individual online with the intent to threaten, harm, intimidate or defraud any person.
Hacking.
Hacking is an attempt to exploit a computer system or a private network inside a
computer. Simply put, it is the unauthorised access to or control over computer network
security systems for some illicit purpose

Cyber Piracy
This tort consists of any activity by which the owner is deprived completely or partially
of his rights through the forms such as software piracy, copyright infringement,
trademark and service mark violation, theft of computer source code, etc.

To date most cyber torts remain elusive from legal sanctions because unlike conventional
torts there is no violation committed face to face against another. There is no literal
damage to physical property nor is there physical bodily harm. Cyber security case law
and regulations are still in the fledgling stage of development. Due to the fact that it is
quite a challenge for persons to obtain any form of criminal conviction against another
for a cyber tort, persons who have been victims of a cyber tort should seek redress in the
form of a civil suit.
5
. Cyber Defamation is not a specific criminal offense, misdemeanour or tort, but rather defamation or
slander conducted via digital media, usually through the Internet. Penalties for "cyber defamation" vary
from country to country, but the fundamental rights covered in the UN Declaration of Human Rights and
European Union Fundamental Human Rights.
In Kenya, the Computer and Cybercrimes Act which seeks to provide for offences
relating to computer systems; to enable timely and effective collection of forensic
material for use as evidence, and facilitate international co-operation in dealing with
cybercrime matters; and for connected purposes. 6 The Act criminalises cyber offenses
such as computer fraud, cyber-stalking, child pornography and unauthorized access to
computerized systems. Based on the mentioned vices, the government and relevant
enforcers aim to protect citizens from instances of online crime that range from cyber
bullying, fraud, among other social ills. The law is set to protect Kenyans from fraud that
is rampant among mobile money transactions such as M-Pesa, Airtel Money, to mention
a few. Inclusive in the law protection of the banking services against intruders who steal
banking and client information.

Moreover, the law will bump legislation and investigation of cyber crimes with
technological and law tools for tangible evidence for prosecution. Culprits who will
knowingly access computer systems without authorization will face stringent penalties,
including a fine of up to KES 5 million or imprisonment of up to 3 years or both
depending on the magnitude of the crime. Upon establishing whether a culprit intended to
perform criminal activities by infiltrating security systems, the penalty shoots up to a fine
of KES 10 million or a 10-year jail time, or both.

The penalties for child pornography and performing cyber crimes that threaten cyber
security will attract fines of up to KES 20 million

The first judicial opinion to mention the Internet was United States v. Morris. The
defendant in Morris was a graduate student who had released an Internet worm that
paralyzed thousands of university and military computers throughout the United States.
In the same year, Robert Riggs was prosecuted for gaining unauthorized access to a Bell
South computer and misappropriating proprietary information about the telephone
company’s 911 system. He subsequently published this confidential data in a hacker
newsletter.

6
Conclusion:
Capacity of the human mind is unfathomable. It is not possible to eliminate cyber-crime
or either cyber torts from the cyber space. It is quite possible to check them. History is
the witness that no legislation has succeeded in totally eliminating crime from the globe.
The only possible step is to make people aware of their rights and duties to report crime
as a collective duty towards the society and further making the application of the laws
more stringent to keep a check. We would conclude with a word of caution for the pro-
legislation school that it should be kept in mind that the provisions of the cyber law are
not made so stringent that it may retard the growth of the industry and prove to be
counter-productive and at the same time a vigil check should be kept on its
misappropriation and further consequences.