CYBER LAWS

1. INFORMATION TECHNOLOGY AND LEGAL RESPONSE 1 Introduction

We begin by giving you a brief picture of the electronic world we all live in. It is apparent that geographical divide is no longer a limiting factor for doing business. Electronic commerce has literally shrunk the globe and has virtually made it a market without boundaries. 1.1 Objective At the end of this chapter you will be able to understand the relationship between electronic world and our lives. You will also be able to explain the nature of the net, the features of the net and the impact of information technology revolution on society.

1.2 We, Cyberspace and Our Lives The virtual world has taken over the real one. Our society is increasingly relying on new information technologies and the Internet to conduct business, manage industrial activities, engage in personal communications and perform scientific research. E-business and e-commerce are the new mantras and electronic transactions dominate the overall business paradigm. While these technologies facilitate enormous gains in efficiency, productivity and communications, they also create new vulnerabilities in terms of possibilities of misuse. The same interconnectivity that allows us to transmit information around the globe at the click of a mouse or push of a button also creates unprecedented opportunities for criminals, terrorists and hostile foreign nation - states, who might seek to steal money or proprietary data, invade private records, conduct industrial espionage, cause a vital infrastructure to cease operations, or engage in information warfare.

Digitalization has radically transformed the ways of accessing and using information. Technical convergence not only rendered fillip to this process, but also as a result, affected positive impact on economics of the nations. The influence of cyber is so striking in our day to day lives that one would discern not only in the realm of trade and commerce, but also in the ambit of personal communications, academic and scientific research, critical infrastructure and the like. But for the inherent lack of capacity in terms of PC penetration, basic telephony, speaking for Indian context, the obtaining cyber influence would have been far different from our own contemplation. In view of, two significant strengths of internet, namely, connectivity and the pace and accuracy with which the transmission of information takes place, online transactions, particularly that of commercial nature, secured tremendous social receptivity. The resultant outcome, as a natural corollary of the same, can be observed not only in terms of swelling numbers of online users but also creative and expansive nature of services t hat are rendered by the Internet providers. For instance, in the initial stages of cyber influence, broadly, if one may put it, the subject matter of substantial part of online transactions was merely focusing on tangible or physical property and service rendering. Now, with the convergence, digitalization of various products is taking place, as a result, transactions involving particular kind of subject matter are more effectively facilitated by the cyber medium. For instance, online music and software tools and techniques are some of the products falling under this category. This clearly indicates how the strides in information technology are changing the facets of cyberspace. Again, the advent of global computer networks has rendered geographical

boundaries increasingly porous and ephemeral. As Internet subscription increases, just as any sizeable number of human beings interact, disagreements may be expected to arise. As the community of Internet users grows increasingly diverse, and the range of online interaction expands, disputes of every kind may be expected to occur. Online contracts will be breached, online torts (any kind of civil wrong) will be committed and online crimes will be perpetrated. Although, many of these disputes will be settled informally, others may require formal mechanisms of dispute resolution and adjudication of liability.

1.3 The Nature of the Net The Internet has been called a network of networks - with local computer systems hooked to regional systems, and to national or international high capacity backbone systems. Each link, or node, in this web is a computer or computer site, all connected together by a variety of connections fiber optic cable, twisted - pair copper wire, micro wave transmission, or other communications media. Each computer in the network communicates with the others by employing machine language conventions known as the IP or Internet Protocols. It is these protocols that define a network. Those machines that talk to one another using IP are the Internet.

This medium defined by these shared protocols is distinctly unlike any other. First, the Internet is a packet switching network. Unlike communications media that tie up the entire channel in real time during transmission, the Internet breaks information into discreet packets of bits that can be transmitted as capacity allows. Packets are labeled with the addresses of their final destination, and may follow any of a number of different routes from computer to computer until finally their final destination, where they are re-assembled by the recipient machine. Thus, packets from a variety of sources may share the same channel as bandwidth allows, promoting more efficient use of available carrying capacity. (Dan L. Burk, 1999).

There is no centralized control of packet routing, or for that matter, of almost any other aspect of the Internet. From a technical standpoint, each computer acts autonomously, coordinating traffic with its nearest connected neighbors, and guided only by the 'invisible hand' that arises from the sum of millions of such independent actions. From a management standpoint, each node is similarly autonomous, answering only to its own systems administrator. This means that there is no central authority to govern the Internet usage, no one to ask for permission to join the network, and no one to complain to when things go wrong.

1.4 Features of the Net The IP provides for tele presence' or geographically extended sharing of shattered resources. An Internet user may employ her Internet link to access computers, retrieve information, or control various types of apparatus from around the world. These electronic connections are entirely transparent to the user. Access to Internet resources is provided via a system of request and reply; when an online user attempts to access information or services on the network, his/her local computer requests such access from the remote server computer where the addressee is housed. The remote machine may grant or deny the request, based on its programmed criteria, only if the request is granted does the server tender the information to the user's machine. These features make available a vast array of interconnected information, including computerized digitalized text and graphics and sound. A crop of private Internet access providers has developed to offer network access and facilities to such customers outside the research community. Consequently, although the academic and scientific research community remains an important part of the Internet community as a whole, private and commercial traffic is becoming a dominant force in the development and growth of the electronic frontiers'. In particular, the network offers novel opportunities for transactions involving information - based goods and services. 1.5 Geographical Indeterminacy The rules of the road for online commerce are different from business interactions in real space. Much of this difference stems from the Internet's telepresence features, which render the network technologically indifferent to physical location. So insensitive is the network to geography, that it is frequently impossible to determine the physical location of a resource or a user. In real space, a business can usually locate a person or entity with which it is interacting; this tends to facilitate identification of partners and validation of transactions. This process is far more difficult in cyberspace, when the parties in a transaction may be in adjoining rooms, or half the world away, and the network offers no way to tell the difference. In other words, there is no nexus between cyberspace and real space. Even in some instances an Internet address tells something about the location of a given machine; it tells nothing about the location of the user of that machine.

To fully appreciate the inchoate nature of Internet geography, it is important to consider the common Internet practice of caching' copies of frequently accessed resources. In order to better to manage packet traffic, some Internet servers will store partial or complete duplicates of the materials from frequently accessed sites; keeping copies on hand elevates the need to repeatedly request copies from the original server. An Internet user attempts to access the materials will never know the difference between the cached materials and the original. The materials displayed on the user's machine will appear to come from the original source, whether they are actually transmitted from there or fro m a nearly cache. Nearby' connotes logical proximity but not physical. The modern world relies on computerized systems for almost everything in life from air, train and bus traffic control to medical services and co-ordination of national security. Even a small glitch in the operation of these systems can jeopardize human lives. The society's dependence on computer systems, therefore, has a profound human dimension too. The rapid boundary-less expansion of large-scale computer networks and the ability to access systems through regular telephone lines increases the vulnerability of these systems. And it also increases the opportunity for perpetrating crimes. The consequences of computer crime may have serious economic implications, as well as invaluable loss in terms of human security. In this context, it is important to understand the motivation behind cyber crimes in terms of perceived value of information as a critical source in today's digital society. This value of information revolves around six factors: a) The person's concerns and commitments; b) The person's capabilities; c) Availability of information resource to the person; d) Availability of information resource to other persons affected; e) Resource integrity; f) Time. (Nina Godbole, 2000)

1.6 Information technological revolution and societal impact Many of us tend to simplistically dismiss the potential impact of information technology on our society. According to a recent treatise on Cyber Laws, while comparing with erstwhile technologies and their impact with that of information technology, the authors went on record by saying that; People often compare the growth of the internet to the historic growth of other technologies, sometimes to suggest that the internet is just the latest technological advance and may not signal a revolutionary advance. But there are differences between the birth of the Internet and technologies that preceded it. For example, electricity was first harnessed in 1831, but it was not until 1882 that the first power station was built, and it was another 50 years before electricity powered 80 per cent of the factories and households across the United States. Radio was in existence 38 years before 50 million people used it; TV took 13 years to reach the same benchmark. It was 16 years before 50 million people used a personal computer. Once the Internet was made available to the general public, it took only 4 years for 50 million people to go on -line.

1.7 Check your progress Questions: 1. E-Commerce is the new mantra of business -Explain 2. Describe the nature and features of the Internet 3. Discuss the impact of the information technology revolution on society 4. There is no nexus between cyber space and real space - Comment

2. Sources of the Law 2 Introduction

Despite divergent views and opinions about law, it is universally construed as an instrument of social change. In other words, law and legal regulation is expected to bring about desired social change and order which is quintessentially necessary to maintain societal peace and tranquility. Yet times, it is necessary to facilitate rule or norm compliance to ensure orderly human conduct in a particular activity like economic one. However, this is not to be understood that such desired rule compliance or social change is only possible because of law and legal system. Suffice it to say that law and legal system form part of series of measures which would influence such change like education, economic parity, ethics and the like. But definitely plays a decisive role in bringing about the required change subject to factors like, social receptivity and fair and non -discriminatory nature of legal enforcement. 2.1 Objective The objective of this unit is to give you a brief overview as to the evolution of law. You will be able to exp lain the sources of law and the different branches of law needed to cater to societal needs. 2.2 Sources of law Speaking for our own context, our legal system is based upon the foundations of common law conceived and shaped by British rulers and jurists. Common law connotes judicial practice of recognizing customary, traditional practices of the people in a formal sense of judgments. In this kind of system there are three main sources of the law, namely, legislation, case law and custom. "Legislation" is the formal enactment of law by the legislature created or authorized by the Constitution. Essentially, the process of codification or legislative enactment is the premise. It stands in contrast to judge made law; Legislation consists of leges scriptae (written laws), as contrasted with judge made law or common law (jus commune). Legislation also stands in contrast to customary law (consuetudines).

Common law' comp rises the body of principles, which derive their authority solely from the decisions of courts. It is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments. Its principles do not derive their validity from formal law making by anybody of persons, but from their enunciation through decisions of courts. Judicial decisions become a source of law by reason of the practice of courts (in common law jurisdictions), of accepting precedent" as a source of law, that is, the established judicial practice that a court must follow the law laid down by a decision of the higher judiciary in the country or State and the law laid down by itself in an earlier judgment, if it is itself an organ of the higher judiciary. Custom' (as a source of law) denotes a usage or practice of the people (including a particular social group or a group residing in a particular locality) which, by common adoption and acquiescence and by long and unvarying habit, has become compulsory and has acquired the force of law with respect to the place or subject matter to which it relates [Black, Law Dictionary, (1990), page 385]. Legislation and case law can (subject to constitutional limitations) operate in any sphere of human activity, while the operation of custom is generally restricted to a particular locality, group or family. (P.M. Bakshi, 1996)

2.3 The Significance of Legislation As a source of law, legislation assumes and is considered to be the foundation of democratic polity. The main points are: The legislature can legislate in advance. Judges cannot do so. The legislature can make a law on any subject within its competence. But Judges can deal with a subject, only when the point arises before them. They cannot spread their canvas beyond the point or points that have actually arisen before them.

The legislature (both of parliament, state or even local self Government) can (subject to constitutional limitations) override the law laid down by the courts, on a particular point (though, because of the doctrine of separation of powers, the legislature cannot reverse or modify the actual decision rendered by the court in a particular case). In contrast" courts cannot repeal or modify a legislature enactment (though they can declare it to be void, as unconstitutional). Legislation is the most fertile source of law. Subject to limitations flowing from the constitutional doctrine, that matters of policy cannot be delegated, the legislature can vest a subordinate authority with power to make ru les, orders, etc. But a court pronouncing a judgment cannot do so. A legislative enactment is not subject to appeal; and the law enacted by it cannot be reversed, as such, by a higher authority (though it can be declared to be void, if it is unconstitutional). In contrast, the law laid down in a judgment of a court laying down the law may be reversed on appeal by a higher judicial authority, which may take a different view of the law. (P.M. Bakshi, 1996)

2.4 The common law or uncodified law In earlier days, commands issued by the sovereign authority were considered as either laws or norms to be obeyed. Similarly, the process of dispute resolution or adjudication of liability by either village elders or people holding power through the process of issuing commands has also received social acceptance. Thus uncodified law or common law is the law flowing from judicial decisions. Fairly large segments of the legal regime are governed, in a substantial measure, by uncodified law. The judgment pronounced by an organ of the higher judiciary performs at least two important functions. (a) For the immediate parties, the judgment becomes a source of rights and duties; (b) For the world at large, it becomes a source of law, it happens to deal with a legal proposition - and to make a definite pronouncement on the subject.

There is a difference between the two aspects set out at (a) and (b) above. As regards (a), the, judgment can grant a concrete relief to the parties and that relief can (if necessary) be enforced through the machinery of "execution" (if it is a civil suit). If the judgment results in conviction and sentence (having been pronounced in a criminal prosecution), the punishment so imposed will be appropriately carried out.

Thus, under aspect (a) above, the focus is on the individual plaintiff, defendant or accused.

In contrast, when one comes to aspect (b) above, the judgment does not grant any relief to an individual. Its impact is on the society at large. Aspect (a) creates no ripples in the legal system (though it may seriously affect the fortunes of the individual litigants). But aspect (b) may affect the content of the law. (P.M. Bakshi, 1996)

2.5 Precedent as a Source of law In addition to what has been enumerated as sources of law, in common law system; precedent also plays a vital role. When a higher court pronounces a judgment deciding a question of law, it is reported in the law reports. A future judge, confronted with the same question of law, will have to cull out from the judgment the legal proposition flowing from the judgment. It is to be remembered that the earlier judgment may not necessarily have enunciated the legal proposition in so many words. The decision in the judgment may be found to be mixed up with the facts of the case. The law, then, has to be isolated from the facts. The complex and concrete factual matrix would have to be converted into an abstract proposition.

While one is so extracting the legal proposition, a problem may sometimes arise. One has to decide which of the facts in the earlier judgment materials were for the legal conclusion arrived at. One may have to formulate the "ratio decidendi", (means basis or grounds of a particular judgment) forming the basis of the earlier judgment. On

this point, differences of opinion can arise. Ascertaining the ratio decidendi of the earlier judgment is not only very important, but also a complex task. This is precisely because it is the basis or ground alone, which has the character of binding the subordinate courts and none other.

The situation becomes more complex, when, in the earlier judgment, there was a plurality of judgments. Different judges who took part in the earlier judgment might have expressed themselves in different manner (even if they have reached the same conclusion). The later judge must analyze them, dissect the reasoning and come to his own conclusion, as to what was the substantial conclusion arrived at, in the earlier judgment. (P.M. Bakshi, 1996)

2.6 Branches of law In the above backdrop of information, law within the realm of common law system, could be at a fundamental level classified as substantive law and procedural law. Substantive law is one, which basically recognizes, defines and confers rights on the parties. Whereas procedural law focuses on procedure to be followed to give effect to the predetermined rights, duties and obligations both outside and inside the courts of law.

Similarly, another categorization is civil and criminal laws. Another criterion for division could be connected with the impact and coverage of the particular rule of law. Does it relate to the public domain, or does it concern individuals, rather than the public, as such? The former categorizes "public law". For instance, laws like constitution law, administrative law and criminal law are construed as public laws as their impact can be discerned on the public at large. The latter concerning individual is labeled as "private law". The law of contracts as envisaged by the Indian Contract Act, 1872 is one example in this regard.

2.7. Check your progress Questions: 1. Explain the different sources of law. 2. Discuss the significance of legislation 3. Distinguish between the different branches of law 4. What is common law? How does it differ from codified law? 5. Exp lain how custom' is a source of law.

Unit 3 The Judicial System 3 Introduction Government under the Constitution consists of three independent units, namely, the Legislature, the Executive and the Judiciary. Laws enacted by the Legislature lay down the rights and obligations of citizens in different situations. Law is not selfexecuting. They require enforcement machinery, which is provided by the executive government. Whenever the executive fails to implement the laws or implement them improperly, citizens can seek relief through the Judiciary. The Judiciary also oversees the working of the Constitution, thereby ensuring that the three wings of the government act within their respective jurisdiction as conceived by the Constitution. 3.1 Objective The object of this unit is to explain the hierarchy of the judicial administration in our country. By reading through this unit you will be able to exp lain the different layers that comprise the judicial set up. You will also be able to explain the jurisdiction of each of the courts at the different levels. 3.2 Institutions of the Judicial System The judicial system consists of a number of institutions such as Courts and Tribunals, a code of procedural rules for conducting the adjudicatory process in fair manner, and a set of personnel including lawyers and judges. 3.2.1 Courts The Supreme Court of India is the supreme judicial body. It has at present 25 Judges and a Chief Justice of India. The number can be increased by the Government if found necessary. The Judges of the Supreme Court are appointed by the President on the advice of the Union Council of Ministers and in consultation with such Judges as the President may think necessary. The Judges retire at the age of 65 years. They enjoy complete independence and cannot be removed except through an elaborate process of impeachment. The Supreme Court has four types of jurisdiction. Disputes between two States ~; or between a State and the Union of India are decided by the Supreme Court. This is called original jurisdiction. The Supreme Court also has concurrent jurisdiction with the High Courts to issue writ or direct ion to enforce fundamental rights. The third type of jurisdiction is to hear appeals fro m civil and criminal cases decided by the High Courts. The appellate jurisdiction is limited as defined by the provisions of the Constitution. Finally, the President can seek advisory opinion from the Supreme Court on any question of law of fact of public importance.

Being the highest court of the land, the law laid down by the Supreme Court in its judgments is binding on all the courts in India. Below the Supreme Court, in each State, is the High Court, which is the highest court of the respective States. The High Court Judges are also appointed by the President of India on the advice of the Chief Justice of India. Each High Court has several Judges and a Chief Justice. They ret ire at the age of 62 and they also enjoy the privileges and immunities guaranteeing independence essential for judicial function. The High Courts have supervisory jurisdiction over all the courts and tribunals within the State. It hears appeals fro m the superior courts and tribunals within the State. It hears appeals from the superior courts and tribunals within the State. Finally, it exercises writ jurisdiction along with the Supreme Court for enforcement of Fundamental Rights of citizens. The Courts and tribunals below the High Court in various States may be broadly indicated by the following chart. There can be variations in the type and nomenclature of these bodies in different States. (N.R. Madhava Menon, 1994)
Supreme Court

!
High Courts

Subordinate Courts -Special Courts/Tribunals

!
District and Sessions Court

Civil Courts (District Judge) Judge) !

Civil Judge

Criminal Courts (Sessions !

Assistant Sessions Judge

!
Munsiff

!
Chief Judicial Magistrate

!
Magistrate

The civil courts are empowered to hear and settle disputes of a civil nature i.e., infringement of legal rights. The jurisdictions of the various courts are determined by law (Code of Civil Procedure) on the basis of the nature of the claim, the value of the subject matter and the territorial limits where the dispute has arisen. The jurisdiction

of the Civil Courts can be ousted in specific type of cases by express provisions of law. There are numerous laws, like the Income Tax Act, which bar the jurisdiction of the ordinary civil court and provide that those disputes be decided by special tribunals (Inco me Tax Tribunals). On the criminal side, the jurisdiction of courts is determined on the basis of the authority to pass particular punishments (Death, imprisonment, fine etc.) and the territorial areas where the court is located. Sessions Judge can award any punishment though the award of death penalty has to be confirmed by the High Court. As the High Court exercises jurisdiction throughout the territory of the State, the District Court or the Civil-Judges Court or the Munsiff Court can exercise jurisdiction only in defined territories. Similarly, the values of the suit, as determined by the Suits Valuation Act, determine the pecuniary jurisdiction of the various civil courts. 3.2.2 Tribunals The Tribunals are set up to adjudicate not only tax cases (Income Tax Tribunal, Sales Tax Tribunal), but also labor disputes (Industrial Tribunal), disputes of civil servants (Administrative Tribunal) motor accident cases (Motor Accident Tribunal) etc. When the Tribunals are set up all cases pending in courts and relating to such matters are transferred to the respective tribunal. Tribunals are generally not bound a by technicalities of procedure as in regular courts. They have usually subject matter specialists sitting as Judges' along with professional judges. They also generally enjoy the same powers as courts in conduct of trials before them. Appeals from these tribunals generally lie to the High Court or the Supreme Court only. 3.3 Procedure in Civil Cases A civil case ordinarily starts with a 'suit' (a grievance of claim filed in court). The plaintiff (claimant) files a 'plaint' which carries the description of parties, the facts on which the claim arises, the law on which the claim is based and the nature of relief asked for. A civil suit has to be filed within the period of limitation prescribed under the Limitation Act. The Court Fees Act also prescribes small fees to be paid by the plaintiff at the time o f filing the plaint which is excused in the case of indigent persons. The suit must be filed in the court of competent jurisdiction as provided

under the Civil Procedure Code. If the plaintiff is a minor or a person of unsound mind, the suit can be filed only through the lawful guardian. If the court finds the suit properly filed, it issues a 'summons' to the opposite party called the defendant along with a copy of the plaint. If the defendant does not appear after receiving the summons, the court may proceed to decide the suit in his absence, in what is called 'exparte' proceedings. If the plaintiff absents himself, the suit can be dismissed. If the defendant appears and accepts the claim, the court may decree the suit. Otherwise, the defendant has to file a "written statement" containing facts he admits and facts he denies. He may also give additional facts in support of his side of the case. These documents filed by the plaintiff and defendant are ordinarily called "pleadings" of the parties. The court can seek clarifications on their pleadings wherever necessary. Thereafter the court frames "issues" which are the main points are perceived by the court for decision of the suit. Thereafter comes the crucial part of the proceeding called "trial" in which parties are expected to prove the facts alleged through "evidence" acceptable in legal proceedings. What facts can be proved, by whom and what facts the court can presume etc, are laid down by law in the Evidence Act. When is a fact proved or disproved or not proved depends on the satisfaction of the court arising out of evidence produced before it. The Evidence act declares that it is the burden of the party which allege certain facts to prove his part of the case to lead evidence on them. The party relying on a document has to file th at document. In fact, a list of documents each party wants to rely upon is invariably filed with the pleadings before the issues are framed. On the date of hearing of the suit, parties lead oral evidence through witnesses and experts. A witness is examined by the party who brings him (examination in chief). The opposite party will have a right to cross -examine him, which is intended to test the veracity of his statements. Witnesses are required to take oath before making

statements to ensure truthfulness. Sometimes, facts can be proved through 'affidavits' which are statements affirmed on oath. The proceedings of court are open to public unless declared otherwise in certain cases. The Judge is expected to record the evidence read over to the witness and get signed by him. Sometimes, when the witness is sick or lives far away and cannot appear in court, the Court may appoint a person to record the statement of such witness 'on Commission'. Such court-appointed persons called 'Commissioners' can also be directed to visit the area and hold local investigation, which is later submitted as a report to the court concerned. If any of the parties dies, the suit can be preceded by his legal heirs. Parties can always compromise the dispute with the approval of the court. They can take the matter to LokAdalats for informal negotiated settlement without adjudication. On conclusion of evidence, parties present arguments through their lawyers. At the end of the Court gives its Judgment in writing on the issues framed and decides on the relief to be allowed or disallowed. A 'decree' is then prepared on the basis of judgment, which contain briefly the relief allowed or disallowed. The court can award costs from either party to the other if justice so demands. On getting the Judgment and the decree, the party concerned (decree -holder) has to seek execution proceedings against the "Judgment debtor" (the party against whom judgment is given). An application for execution has to be made to the court, which decided the case in the first instance. The method of execution of a decree depends' on what is required to be done in the circumstances of the case. In this process, the court can attach and sell the property involved, eject the Judgment-debtor, arrest and detain him, appoint a receiver, auction the property etc. Finally in Civil Proceedings, the law allows parties dissatisfied with the Judgment to prefer an appeal to a higher court or seek a review on some new facts from the same court which passed the Judgment . In limited cases where no appeal lies, a superior court can allow a revision of Judgment of the lower court as well. (N.R. Madhava Menon, 1994) full-fledged

3.4 Procedure in Criminal Cases The Criminal Procedure Code not only lays down the jurisdiction and powers of th e criminal courts but also the procedure to be followed in investigation of crimes and trial of persons accused of crimes. What acts and omissions constitute crimes and what punishments are provided therefore are contained in the Indian Penal code and in some special and local laws. How is crime to be proved and by whom are laid down in the Evidence Act. A criminal proceeding starts with a First Information Report (FIR) which is information of the occurrence of a crime received by the police. This information is reduced into writing at the police station and a copy of it is given to the informant. Recently, Supreme Court held that filing or registration of FIR need necessarily take place in a police station having territorial jurisdiction. Territorial jurisdiction means the identified geographical territory will be ascribed to a given police station. If the alleged offence takes place in a particular territory, police station located in such territory will have jurisdiction for the purposes of inquiry and investigation. In view of Supreme Court ruling, the informants will not be constrained by the technical requirement of territorial jurisdiction of police stations. In cases of non-cognizable offences, the police cannot investigate the crime on their own and, as such, directs the informant to the concerned Magistrate. In cases of cognizable offences (serious crimes punishable with death or imprisonment) the police proceeds with investigation which consists of proceeding to the spot, interrogating witnesses, apprehending suspects, conducting search and seizure and other steps directed towards collection of evidence in the case. Police can summon any person for interrogation and persons are expected to answer truthfully. In the case of women and children, statements are to be recorded in their houses rather than at police stations. Statements made to police, if recorded in writing, need not be signed by the witnesses. Police can make witnesses give statements to Magistrates during investigations. If they are in the nature of a confession (admission of guilt) the Magistrate has a duty to warn the accused that he is not bound to make it and that if recorded it may be used against him. It is the duty of the Magistrate to satisfy himself that confession is being made voluntarily and not out of coercion or inducement. During investigation of a cognizable offence, police can arrest persons suspected of involvement in the offence. Arrest is a denial o f freedom of movement and force is not necessarily an element of arrest. But if force becomes necessary the minimum

required force can be used. Ordinarily, arrest is made on the basis of a warrant (order) issued by the Magistrate and persons to be arrested are served the warrant. Arrest is a powerful weapon, which has to be exercised only when absolutely necessary. To ensure that persons are not deprived of their freedom beyond what is necessary to answer the charged, Criminal Procedure Code provides for liberal granting of bail. In the case of bailable offences the arrested person has a right to be released on bail if he furnishes bonds with or without sureties as demanded. Similarly, a person arrested without a warrant has to be produced before a Magistrate within 24 hours, excluding the time taken for journey. The Magistrate may remand him to custody of the police or of jail authorities up to a period of 15 days. The total period of detention before trial cannot exceed 90 days (60 days in less serious offences). On the expiry of that period he has to be released on bail. In recent times, while taking note of gross and blatant abuse of human rights in the context of arrest, the Supreme Court in a substantive sense supplemented various mandated procedures to be followed by the arresting officer. (N.R. Madhava Menon, 1994) An investigating police officer can also search a place with or without warrant (in cases where he thinks that he may not recover in case he spends time in securing a warrant). A search has to be witnessed by two persons of the locality a memorandum m of search and a list of articles found have to be prepared and a copy of it is to be given to the occupier of the place. When the police submits a report on completion of investigation to the Magistrate competent to hear the case, a charge sheet is framed. Criminal proceedings can also be initiated otherwise than a police report, through private complaints made to a Magistrate. On receiving a complaint, the Magistrate records the statement of the complainant and witnesses present, if any, and then cause an enquiry himself or through the police or any other person. If on enquiry he does not find sufficient ground for proceedings, he dismisses the complaint, recording reasons for doing so. Otherwise he issues summons to the accused. The trial in Criminal cases can follow one of the three procedures depending on the nature of the crime. They are Warrant trial, Summons trial and Summary trial. In Summary trial, the Magistrate hears the case summarily, recording only the

substance of evidence. The maximum punishment that can be given in these cases is a fine only or imprisonment of three months. In Summons trial, it is not necessary to frame a formal charge. The accused is told about the particulars of the offence and, if he pleads guilty the plea is recorded and he is convicted. If he does not, the evidence of prosecution, the statement of the accused and any other evidence he may give are recorded and, depending on the evidence, he is convicted or acquitted by the Magistrate. In Summons cases, the complainant can withdraw or compromise the case also. In warrant cases (cases for which death, life imprisonment or imprisonment exceeding 2 years) the trial can proceed either on police report or on a complaint. There are minor differences of warrant trial on these two types of cases. When an accused appears before a Court of Sessions, the prosecutor describes the charge against him and informs the evidence he proposes to advance. After hearing the parties and examining the materials if the judge finds no sufficient ground to proceed, he discharges the accused. Otherwise, the judge frames a Charge and tries it himself or sends to the appropriate judge. If the accused pleads guilty he may be convicted. Otherwise, a date is fixed for prosecution evidence. (In criminal cases the burden of proving the case against the accused is entirely about the prosecution side. In cases of doubt on the prosecution case, the benefit is given to the accused and he is acquitted). After prosecution evidence is over, the accused is given an opportunity to explain the evidence against him. The accused may also lead evidence in his defense. After evidence and arguments, judgment is pronounced in open court. If the accused is found guilty, he is heard again on the question of sentence (punishment). The Public Prosecutor can withdraw a prosecution with the permission of the Court. Some criminal cases of a minor nature can be compounded which in effect would mean acquittal. Giving false evidence in court is an offence liable to punishment. In criminal proceedings, right to legal aid in case of indigent accused is guaranteed under the Constitution of India. Constitution also provides that a person tried and convicted or acquitted of an offence cannot be tried again for that offence.

3.5 Officers of Court Lawyers (advocates) who assist the judges on behalf of the parties are often referred to as officers of court. It is the Constitutional right of everyone to be represented in legal proceedings through a lawyer of his choice. And if the person is unable to afford one because of his socio-economic position, legal aid is provided by the State in certain circumstances.

Advocates have an exclusive monopoly in practicing law. They are people trained in law and court procedures that give advice to parties and plead their cases before courts and tribunals. They belong to an independent professions governed by a code of ethics and managed by a representative body of lawyers called the Bar Council. In case a litigant has a complaint against any individual member of the legal profession, a complaint can be preferred to the Bar Council o f the State concerned. The Council has power to investigate the complaint with same status as that of a Court and award punishments or direct compensation to the aggrieved litigant. (N.R. Madhav a Menon, 1994) Check your progress Questions: 1. Discuss the hierarchy of the judicial administration system in India 2. Exp lain the jurisdiction of the courts at different levels 3. Distinguish between the procedures in a civil case with that of a criminal case.

Unit 4 Structure of Government 4 Introduction

The adoption of the Constitution and India becoming a Republic in 1950 was a culmination of events that took place ever since the British landed in India. The legacy of British rule left an indelible mark in the framing of the Constitution of India. The Constitution has always been a Live' document. The fact that the Constitution has been amended time and again shows that the Constitution has been responsive to the changing aspirations and needs of the people. 4.1 Objective By reading through this unit you will be able to explain in brief the history behind the framing of the Constitution of India. You will also be able to explain which functions of the government are the exclusive privileges of the Central Government and the functions that are shared between the Central government and the state. 4.2 Framing of the Constitution After the British rule in India which lasted for about 350 years. India gained independence from the British on August 15, 1947. The series of charters issued by the Crown in England from time to time, since 1600, the East India Company's rule, the first war o f Indian independence, the establishment of Indian National Congress, the role played by great heroes like Gandhiji, Nehru, Tilak, etc. in the freedom struggle, the two world wars were the few land marks in the development of constitutional history of India prior to independence. Shri Rajagopalachari became the first and the last Governor-General o f free India. To draft a Constitution for India defining the structure of the Government, the powers and functions of different authorities under the Constitution and the Fundamental Rights of citizens was the first major task for the free India. For this a constituent Assembly, consisting of eminent persons like M r. B.N .Rau, Dr .B.R.A mbedkar, Babu Rajendra Prasad, Pandit Govind Vallabh Pant, Dr. S. Radhakrishnan and Maulana Abdul Kalam A zad was appointed to draft a Constitution for the free India. Dr. B R. Ambedkar was the Chairman of the Drafting Committee of the Constituent Assembly. It took almost two years to complete the task, which was debated at length by the members. Finally,

the draft of the Constitution of India was adopted on November 26, 1949. Some of the provisions of the Constitution came into effect with immediate effect. The full text of the Constitution came in to force on January 26, 1950, the day India became a "Republic". The Constitution of India, which is the fundamental law o f land, consists of a preamble, 395 Articles, divided into 22 parts and 10 Schedules. According to the Preamble of the Constitution, the sovereign power is vested in the hands of the people. The organization, power and functions of the three different branches of Government both at the Center as well as States are provided under the Constitution. Accordingly, the executive power of the union is vested in the hands of the President, the legislative power in the Parliament and the judicial power in the Supreme Court. While the legislature/Parliament has the power to enact laws, the president executes them and the judiciary interprets the law. A system of checks on these organs of the state is also provided in the Constitution.

Although India is a Republic, it has adopted the parliamentary form of government and made the executive power a nominal authority. The Preamble to the Constitution describes India as a Sovereign, Socialist, Secular, and Democratic Republic. Along with this, the object of securing the social, economic and political justice, liberty of thought and expression and equality of status and opportunity to all citizens is also provided. Moreover, the states are guided by the Directive Principles of the State Policy. Both the Union and State governments have an obligation under Part IV of the Constitution to formulate policies in the implementation of the Directive Principles of State policy. Although the Directive Principles are not justifiable in the Courts of Law, they provide the general guidelines for the realization of these goals. The judiciary has interpreted the Directive Principles in such a way to make them enforceable in the day to day administration. Some of the important Directive Principles of State policies are a) to secure social, economic and political justice; b) to minimize inequalities in income; c) to provide free legal aid to economically backward classes; d) Workers participation in management of industries; e) Free and compulsory education for children;

f) to secure a uniform Civil Code and g) protection and improvement of forest and wild life and to protect the monuments and places of national importance. In the conflicts arising between the fundamental rights and directive principles, the judiciary exercises the power to review such laws. 4.3 Government Functions The governmental functions under the Constitution have been divided and given predominantly to the different levels of government. At the apex is the national or central government and followed by twenty -five state governments. The State governments have absolute powers over the organization of the local selfgovernments within the State. The powers of the national and state governments have been provided under the Constitution whereas that of the local self-government does not find a place in the constitutional order. These three levels of government jointly discharge different functions to keep the administration moving. In the division of powers between the national and state governments the Center has a dominating role both under the Constitution as well as in practice. The nature and extent of such powers can well be understood with the help of the fo llo wing chart: Distribution of power -VII Schedule to the Constitution Government List No Total of Entries 97 Defense, foreign affairs, States cant make to banking laws with currency these powers. Only the reference currency etc. center can do so. Police, health, agriculture etc. local govt, public The states as well as the center can legislate upon these powers. The center powers Concurrent iii 4 Criminal laws, criminal can gets the under article sanitation, no Total No of Examples Remarks

Center/nati onal state

ii

66

249,250,252 and 253. Both states and center

powers

procedure trust/trustees.

insolvency,

can legislate on these powers. event only law. of But any in law the can conflict

central

prevail over the state Residuary Powers ---

Vested in the Central government only under the Entry 97 of List I read with Art. 248 of the Constitution.

Thus all the subjects of national importance are vested in the hands of the Central Government. Although the State governments have 66 subjects, the national government can also legislate upon any of the powers of the state under Articles 249, 250, 252 and 253. Accordingly, the Center can legislate on the State subjects in the "national interest" (Art.249), during proclamation of emergency (Art.250) with the consent of the States (Art.252) and for giving effect to treaties and international agreements. The powers or subjects not mentioned in any of these three1ists are known as 'Residuary power'. All the residuary powers are the Central Government enjoys majority of the powers including those powers given to the states.

4.4 Processing of Bills When a bill gets the assent from the executive (the President or the Governor as the case may be), it becomes a law, till then it is referred to only as a bill. The President has no power to Veto (reject) a bill passed by both the Houses of Parliament. He may refer the bill back to the House for reconsideration. If the bill is p assed as it is for the second time after the reconsideration, the President has to give his assent. So far this has been use only, once by the former President Mr. GianiZail Singh with regard to the Postal Bill. Each of the Houses of the legislature has different committees nominated and elected to consider the bills in detail. These committees have an important role to play by checking the powers of the legislature from time to time. To quote few examples of such Committees, mention must be made to the Committee on Subordinate Legislation, Committee on the privileges of the House etc. If there is

any difference between the two Houses of Parliament over a particular Bill, which is not a financial or money Bill, a deadlock emerges and the procedure comes to a standstill. To resolve the deadlock between the two Houses of Parliament, the President can summon a joint sitting of both the Houses, where the Bill will be debated and votes by the members in that joint sitting. Bill

Lok Sabha or Rajya Sabha

First Reading

Second Reading

Committee Stage

Report Stage

Third Reading

Bill goes to next House which also follows all these steps.

Presidential assent.

4.5 Legislation: Subject to judicial review The validity of the laws passed by the legislature can be called in question in any Court of Law. The Constitution of India has established Courts at two levels. There is a Supreme Court at Delhi consisting of a Chief Justice and twenty five other judges. There are about 18 High Courts with a Chief Justice and other judges depending upon their sanctioned strength. The validity of a law can be questioned in either of these two courts whenever the law has violated any of the provisions of the Constitution or the fundamental rights of the Citizens. The courts can declare such laws are unconstitutional. This power is known as judicial review, which is one among the basic procedures have been prescribed under the Constitution itself and by the rules made by the respective Courts.

4.6 Public interest litigation During the last 20 years, (i.e. from 1976), the courts have become active in rendering Social justice. As such it has waived all procedural requirements in few cases where the aggrieved persons have sent letters, post cards and telegrams to the Supreme Court. The Court considered these as Writ petitions and granted remedies. The other important development is the liberalization of the concept of "Locus Standi" by the Courts which has le d to numerous public interest Litigation. It is also known as the Social Action Litigation in India. Under this any person having concern about a particular issue can move the Court to protect the interest of the general public or a group of people. Various Social activists are involved in this process. Prof. Upendra Baxi and Ms.Sheela Barse have made full use of the activist role of the courts. These social activists made a sincere attempt to reduce the gap between the theoretical existences of law and are practice. Thus, with the help of both judicial activism, and public interest litigation, we have entered into the last decade of 20th Century to make laws instruments of social justice. Whenever the rights and liberties of the Citizens are violated by any state actions, the aggrieved person has the right to seek remedy from the administrative machinery itself. Appeal provisions have been provided in the set up to facilitate this. When all these remedies are exhausted, the citizens can move the High Court or the Supreme Court to protect their interest. As the population along with mass illiteracy is increasing alarmingly it becomes the function of the 'social activists' to educate the masses about their rights and obligations to make the social justice a reality. When the government has failed in its endeavor the responsibility to create the awareness among the people must be shared by the people themselves with the assistance of the social activists. (N.R. Madhava Menon, 1994)

4.7 Check your progress Questions: 1. Discuss the distribution of powers between the central government and the state government 2. Exp lain briefly what you understand by the term public interest litigation'

Unit 5 Information Technology and the Attempted Legal Response 5 Introduction Law always finds it very difficult to respond effectively to a technological process. Obviously, technological pace is something insurmountable for the law to keep abreast. In addition, the process of 'law making' itself has a definite contribution towards this. A look into the assumptions upon would give an idea on the factors involved in law making. 5.1 Objective After going through this unit will be able to explain the primary assumptions which any legal system is based upon. You will be able to understand the relationship between national law, sovereignty and world commerce especially in the age where world commerce is blurring geographical boundaries. 5.2 Primary assumptions of a legal system Any legal system is premised upon the following primary assumptions as a foundation. They are: a) Sovereignty b) Territorial Enforcement c) Notion of property d) Paper based transactions and e) Real relationships 5.2.1 Sovereignty Law making power is a matter of sovereign prerogative. As a result, the writ of so vereign authority runs throughout wherever sovereign power exercises authority. Beyond its authority, which is always attributed to determinate geographical boundaries, the sovereign cannot regulate a subject matter through legal intervention. However, in the cyber context, geography is a matter o f history, in the sense that barriers in terms of distance and geographical boundaries do not make much sense. 5.2.2 Territorial Enforcement Any law in real world context can only be subjected to predetermined territorial enforcement. In other words, the territory over which the sovereign authority

exercises power without any qualification or impediment will be able to enforce the law. However, this proposition carries some exceptions. It is a normal practice in the case of criminal law, the sovereign authority enjoins extra -territorial jurisdiction as well. It is to indicate that even if the crime is committed beyond the limits of territory, still the sovereign authority will be able to initiate prosecution, provided if the custody of the person is fetched. Towards this end, it is a normal practice to invoke extradition proceedings (which reflect mutual understanding and undertaking to Co -operate with each other nation in cases of crime commission). However, serious impediment in this respect is, the proceedings must comply with the principle of 'double criminality'. It means that, in both the countries, the alleged act of commission must have been criminalized. In the context of cyber law, there are only twelve countries in the g lobe, where relevant laws have been enacted. But when it comes to Civil law, say in the case of international contracts, pertinent principles of Private International Law are invoked to address these issues. When it comes to cyber context, territory does not hold any meaning. Connectivity without any constraint is the strength of cyber world. 5.2.3 Notion of Property The obtaining premise (though of late subjected to marginal change) of the legal response considers 'property' as tangible and physical. With the advent of intellectual property, undoubtedly, this concept or understanding of 'property' has undergone change. In the cyber context, 'property' in the form of digitized services or goods pose serious challenges to this legal understanding. Similarly, 'do main names' raise fundamental questions vis--vis the legal understanding of what constitutes 'property'. 5.2.4 Real Relationships Quite often, legal response considers relationships, which are real world oriented. In view of connectivity, pace and accuracy as to transmission, in the cyber context, these relationships acquire unique distinction of virtual character. In the broad ambit of trade and commerce, it is the commercial transaction in the form of contracts, which constitutes the foundation of legal relationship. Hence, if the relationships are virtual, what should be the premise of contract law, which is basically facilitating in nature? Even with regard to other activities, which are potentially vulnerable to proscription, what kind of legal regulation is required to be structured?

5.2.5 Paper Based Transactions Obtaining legal response considers and encourages people to create and constitute legally binding relationships on the basis of paper-based transactions. No doubt, the definition of 'document' as is obtaining under Section 3 of Indian Evidence Act, 1872 takes within its fold material other than paper also; still popularly the practice covers only paper based transactions. But in the cyber context, it is the digital or electronic records, which form the basis of electronic transactions. As a result of which transactions will be on the basis of electronic records. In the light of these seemingly non-applicable foundations, the legal system originating from a particular sovereign country has to face complex challenges in formalizing the structure of legal response. However, the inherent complexity did not deter select countries in making an attempt in this regard. From the obtaining patterns it can be understood that, substantial numbers of these countries have apparently considered the following benchmarks in structuring the relevant legal response.

Application of the existing laws duly modified to suit the medium of cyber context with an appropriate regulatory authority monitoring the process and adjudicating the rights and liabilities of respective stakeholders; Respective legislations enacted by the concerned sovereign states with a deliberate attempt to encourage and facilitate international co-operation to enforce these laws.

5.3 Role of the Judiciary in the evolving legal frame work Apart from these, while interpreting the pertinent laws, judiciary has also played an active role in evolving and conceptualizing various legal issues and responses.

The rapid development of information technology presents challenges for the law. Challenges which are not confined to any single one of the traditional legal categories but which arise in, for example, criminal law, intellectual property law, contract law and tort law. For instance, presently, the following issues are being addressed by law.

How does the law deal with computer hackers or those who introduce viruses? Should a contract for the acquisition of software be categorized as one dealing with goods? Similarly, should software be regarded as a product? Can copyright subsist in a computer program? Would patent protection be more appropriate? Does the widespread dissemination of text on networks herald the death of copyright? Should the content of the material on the Internet be regulated and, if so, by whom? What about freedom of information and expression? How is the privacy of the individual to be protected amid the increasing capacity for storing, gathering and collating information?

An overview of these concerns will enable us to broadly identify the applicab le parameters for better comprehension and understanding: Cyber crimes; Cyber contracts; Cyber privacy; Cyber intellectual property rights.

5.4 Check your progress Questions: 1. State and discuss the primary assumptions of a legal system

Unit 6 CYBER CRIMES 6 Introduction

At the outset, terminological clarification about usage of this phrase namely, cyber crimes is warranted. Many a time, cyber crimes' is used synonymously to indicate computer crimes also. However, technically speaking, the phrase cyber crime entails a different and unique understanding. No doubt, computer, in whatever sense we use the term, basically is required to undertake any activity in the cyber context. In other words, possible crime can be perpetrated with the help of a computer devoid of cyber context. But as matters stand now, without the help of a computer network it is not possible to involve in any kind of activity in the cyber context.

6.1 Objective The objective of this unit is to define what constitutes Cyber Crime. You will be able to identify the offences that constitute Cyber Crime under the I.T. Act 2000.

6.2 Cyber Crime - A perspective In an influential research work, Pro f. Ulrich Sieber observed that; the vulnerability of today's information society in view of computer crimes is still not sufficiently realized: Businesses, administrations and society depend to a high degree on the efficiency and security of modern information technology. In the business Communities, for example, most of the monetary transactions are administered by computers in form of deposit money. Electronic commerce depends on safe systems for money transactions in computer networks. A Company's entire production frequently depends on the functioning of its data-processing system. Many businesses store their most valuable company secrets electronically. Marine, air, and space control systems, as well as medical supervision rely to a great extent on modern computer systems. Computers and the Internet also play an increasing role in the education and leisure of minors. International computer networks are the

nerves of the economy, the public sector and society. The security of these computer and communication systems and their protection against computer crime is therefore of essential importance.

In the course of this development computer crime has developed into a major threat of today's information society. The spreading of computer technology into almost all areas of life as well as the interconnection of computers by international computer networks has made computer crime more diverse, mo re dangerous, and internationally present. An analysis of relevant criminogenic factors shows that modern computer and communication networks have specific characteristics which are highly useful for perpetrators but which imply difficulties for potential victims and for law enforcement (such as complex security questions, multiple hardware and software systems, inexperience of many users, anonymity, encryption and international mobility). Groups active in organized crime, professional business espionage and secret services around the world are already exploiting these new features of computer crime. However, many governments, businesses and private users are not aware of the attacks that happen or could happen to them in the data processing area. Thus, governmental agencies, the industry and private users should be made aware that protection against computer attacks is of great significance. They should be informed about the main threats of computer crime and the responses thereto. (Prof. Ulrich Sieber, 1997)

6.3 The Problem: Current Forms of Computer Crime In most countries, the discussion about computer misuse began in the 1960s with the endangerment of privacy, which was discussed under the headword of "data protection" and was later integrated with in the concept of "computer crime". Since the 1970s, scientific research concentrated on computer-specific economic crimes, especially computer manipulations, computer sabotage, computer espionage and software piracy. The rap id growth of the telecommunications sector since the 1980s and especially the spread of the WWW since the 1990s then brought along the dissemination of illegal and harmful contents, such as pornography, hate speech and other communication offences in international computer networks. At the same time,

the use of computers and modern communication technology by perpetrators in new fields of crime, e.g. in organized crime, made it obvious that there were almost no boundaries for computer-related crime and that from a phenomenological point of view - homogeneous computer crime no longer existed. Since the respective Modioperandi no longer follow a continuous path, but constantly adapt to new technologies, the following analysis of these four main groups of computer crime will each start with a short description of the historical development and then give an analysis of the present main forms of crime.

6.3.1 Infringements of Privacy While computers began their triumph in the 1960s, it was realized in several western countries that the collection, storage, transmission and connection of personal data endangered the personal (ity) rights of citizens. Orwellian visions and the mistrust of the revolting youth of the late sixties inspired the discussion about the dangers of the "big brother". However, during the 1980s, the old pattern of the computer as an exotic instrument in the hands of the powerful became obsolete with the massive spreading of personal computers. It became clear that the protection of privacy within the data processing area also had to consider the multitude of private computer systems and to establish a difficult balance of interests between the privacy interests of data subjects concerned and the economic freedom of the holders of personal data. 6.3.2 Economic offences Since the 1970s, the discussion about computer misuse was not only marked by infringements of privacy but also by computer-related economic crimes, which today are regarded as the central area of computer crime and which were at first exclusively characterized by that term. During the 1970s, fraudulent computer Manipulations were the starting point of the discussion about computer-related economic offences and the core center of computer-related economic crime. However, today hacking has increasingly become a "basic offence" which is then used to commit acts of espionage, software piracy, and sabotage as well as computer fraud.

6.3.3 Computer Hacking The term "computer hacking" traditionally describes the penetration of sabotage or espionage but for the pleasure of overcoming the technical security measures. In practice, this kind of offence can be frequently found. As far as the damage of these cases is concerned, a differentiation is essential: In numerous cases, the penetrated computer user is not actually harmed, but only endangered. However, in these cases, too, the formal sphere of secrecy or the integrity of the concerned computer systems is violated. Contrary to this considerable damages occur in other cases especially when the perpetrators later use their knowledge for committing espionage, sabotage or fraud. Due to recent developments in the field of telephone and telecommunications technology (such as ISDN hacking does not only affect classic computer systems but also increasing telephone lines, answer phones and voice -mail- systems. "Telephone hackers" dial themselves in to the telephone companys local phone exchanges and are thus able to eavesdrop on the digitally led conversations in a respective part of town. In the US, besides other confidential information, especially the numbers of telephone access cards (so -called calling cards) are eavesdropped on, which are then resold.

6.3.4 Computer Espionage Computer espionage only rarely appearing in official statistics- constitutes a special danger compared with traditional economic espionage, because in computer s stems huge quantities of data are store in an extremely narrow space, and the data can be copied quickly and easily with the help of modern technology, also via data telecommunication. The objects of offence are especially computer programs, data of research and defense, data of commercial accounting as well as addresses of clients. As the modus operandi, the simple copying of data is predominant; the theft of data carriers the evaluation of "remaining data" or the absorbing of electromagnetic emissions are also affected. Besides young hackers and competing business enterprises, secret services increasingly appeared to be dealing with economic espionage in recent years. With the convergence of data processing and telecommunication as well as with the

digitalization of telecommunication, the line between traditional computer espionage and telephone fax and e-mail monitoring becomes increasingly blurred. In the case of telephone tapping, the criminals are able to penetrate the telephone exchanges of the telephone companies especially via normal data lines. Car phones, directional radio stations and satellite connections are particularly easy to attack in case of uncoded communication.

6.3.5 Software Piracy and other forms of Product Piracy The unauthorized copying and use of computer programs -often called theft of software or software piracy at first involved, in accordance with the historic development of computer technology, the copying of individual software which frequently contains important internal company know-how. Therefore software theft overlaps with computer espionage in many cases.

6.3.6 Computer Sabotage and Compute r Extortion The high concentration of data stored in the electronic devices mentioned above, along with the dependence of many companies and administrative authorities on data processing, make computer sabotage another particular danger for business and administration. The objects of computer sabotage are the tangible computer Facilities as well as the intangible data containing computer programs and other valuable information.

For the modi operandi, one can be differentiate between methods causing physical damage and those causing logical damage. During the 1970s, the most frequently practiced methods of causing physical damage were igniting or bombing a building. These techniques were typically applied by "outsiders" not employed or otherwise related with the owners of the facilities damaged.

6.3.7 Computer Fraud During the era of large mainframe computers, fraud committed by computer Manipulations constituted a uniform group of crimes. Due to the diversification of computer systems in the 1980s, nowadays the term computer fraud describes a spectrum of various cases within the field of economic crimes.

Among the "classic" large-scale computer fraud cases, invoice manipulations concerning the payment of bills and salaries of industrial companies as well as the manipulations of account balances and balance sheets at banks were and still are the predominant offences. In addition to this, an extension of manipulations to increase the inventory could be perceived due to the recession of the recent year.

6.3.8 Illegal and harmful contents In the late 1980s, first cases occurred in which information glorifying violence or information of racist content was distributed with the help of computers especially by political extremists. In the USA, the Ku Klux Klan, the White Aryan Resistance, skinheads, and other neoNazi organizations had already realized in the 19805 that it was much more effective to work with means of electronic communication than with traditional "newsletters". These groups used electronic communication systems mainly to distribute the names of Jewish "opponents" and to give advice for violent actions.

In Germany, right-wing and left-wing extremist organizations first used Bulletin Board Systems (BBS) and other electronic communication systems at the beginning of the 1995. Right-wing extremist organizations especially used the so called "ThuleNetwork", which consists of about 10 BBSs. In these BBSs, information about neo fascistic organizations and corresponding propaganda material was stored. The electronic means of communication were used for the communication within private groups of users as well as for informing the public. Left -wing radical groups

(particularly from the anarchistic autonomous scene and fro m the sphere of the so called Red Army Fraction) distribute their plans of action especially via the BBSnetwork "Spinnennetz (cobweb)", which is included in an international exchange of information via the "European Counter Net work (ECN)".

At the beginning of the 1990s, the triumphant rise of the Internet was accompanied by an exchange of illegal and harmful material which was intensively monitored by the press and public. Today the center of attention is focused especially on child pornography, hate speech and libel in international computer networks.

The distribution of child pornography and contents glorifying violence within the Internet and similar computer networks was illustrated in the famous "CompuServeCase": In 1997, Bavarian State prosecutors indicted the head of the German CompuServe GmbH subsidiary for not having filtered pornographic newsgroups and games glorifying violence within the proprietary service, both types of data stored on servers of CompuServe Inc. in the USA.

In 1996 the Spanish public was stunned by a case of distribution of child pornography. Two students had a collection of over 150 floppy disks with child pornography all collected over the Internet. Both had to be released from prison after 3 days because of a legal gap in the new Spanish Criminal Code of 1996.

Increasingly video games with a racial background in which the user could discriminate against foreigners and ethnic minorities served as propaganda material for young people. E.g., in the video game "Concentration Camp - Manager" distributed mostly via BBS -the player must decide whether a foreign worker is first to be sent to work in a mine or whether he is to be gassed immediately.

An example for libel was dealt with by court in the United States in 1991. In this case, CompuServe contracted with a third party for that user to conduct a special-

interest forum (called "Rumorville") on CompuServe. The plaintiff claimed that defamatory material about its business was posted by a user in that forum, and sued both the forum host and CompuServe. CompuServe moved for, and received, summary judgments in its favor. The prosecution of perpetrators disseminating illegal contents in the Internet is not only made d ifficu lt by the fact that these perpetrators are acting from abroad and that the international mechanisms of co -operation are often weak and slow. Prosecution is often impossible since perpetrators can hide behind the anonymity which today is granted by anonymous re-mailers and by the abuse of free access software.

6.4 Other offences Along with the advance of information technology to new areas of live computers can be (ab)used for almost all offences. This includes, e.g., threats to human life, various activities of organized crime as well as electronic warfare.

6.4.1 Attacks on Life Computer manipulations described above did not only serve the purpose of gaining pecuniary benefits, but were also used for attacks on life -as in the case of the manipulation of a flight control system or of a hospital computer. An example for the spreading of computer crime in traditional fields of offences is the manipulation of a British hacker, who accessed the information system of a Liverpool hospital in 1994 because he simply wanted to see "what kind of chaos could be caused by penetrating the hospital computer". Among other things, he changed the medical prescriptions for the patients: A nine-year-old patient who was "prescribed" a highly toxic mixture survived only because a nurse re-checked his prescription.

6.4.2 Organized Crime

It is obvious that the powerful tools of modern computer and communication systems to store, administer and transfer data are also used by organized crime groups in many areas. Organized crime is especially involved in the above described acts of sophisticated computer fraud, credit card fraud, and telephone fraud as well as software and product piracy. Computer data stored and transmitted in encrypted form is also used e.g. by drug and arms dealers to administer their activities. In the future, electronic money transactions and "cyber money" will be increasingly used for illegal gambling and for money laundering on the Internet.

The involvement of organized crime groups in the field of computer fraud was illustrated when a Russian group attacked one of the best known US banks in New Yo rk via data networks in 1994. Operating from St. Petersburg, the group succeeded in causing the American bank to transfer over US$ 10 million to foreign accounts. Monitoring and following the "money trail" of the manipulations, some of the perpetrators finally could be arrested. The responsible security officer of the bank told the author that the arrested perpetrators possessed false Greek and Israeli passports which were forged in a quality which could be produced in Russia only by members of the former Russian secret service KGB. 6.4.3 Electronic Warfare In the meantime, the possibilities of computer manipulations have also been recognized in the military sector. "Strategic Information Warfare" has become a form of potential warfare of its own. This type of warfare is primarily directed to paralyze or manipulate the adversary's computer systems. The dependency of military systems on modern information systems became evident in 1995 when a "tiger-team" of the US Air Force succeeded in sending seven ships of the US Navy to a wrong destination due to manipulations via computer networks.

There is no need to point out the possible danger originating from a manipulated nuclear power station in order to stress that meanwhile, computer misuse has become a global threat and the security of modern computer systems has gained central significance for the information society of our days.(Prof.Ulrich Sieber, 1999)

Thus broadly speaking, the following specified natures of offences are recognized by respective nation -states in their legislations. The list by no means is to be construed as exhaustive but only illustrative. As the technological potential misuse unfolds, we need to expand the scope of criminalization. The possibility of marginal differences as to the scope and ambit of respective cyber crimes cannot be ruled out. In addition, strides in information technology further blurred the legislative understanding of what constitutes cyber crime.

Computer Fraud: The input, alteration, erasure, or suppression of computer data or computer programs or other interference with the course of data processing that influences the result of the data processing, thereby causing economic or possessory loss of property of another person with the intent of procuring an unlawful economic gain for himself or any other person; Computer Forgery: The input, alteration, erasure, or suppression of computer data or computer programs or other interference with the course of data processing in a manner as prescribed by the law; Damage to computer Data or computer Programs: The erasure, damaging, deterioration, or suppression of computer data or computer programs without right; Computer Sabotage: The input, alteration, erasure, or suppression of computer data or computer programs or other interference with computer systems, with an intent to hinder the functioning of a computer or a telecommunication system; Unauthorized Access: The access without right to a computer system or network by infringing security measures; Unauthorized Interception: The interception made without right and by technical means, of communications to, from and within a computer system or network; Unauthorized Reproduction of a Protected Computer Program: The reproduction, distribution, or communication to the public without right; Pornographic content on the net. 6.5 Classification of Cyber Crimes in I.T. Act, 2000. While considering the general terrain of cyber law, as of now, the following acts are construed as cyber crimes in the I.T. Act, 2000. Without permission of the authorized user Accessing or securing access to such computer, computer system or computer network Downloading , coping or extracting any data or information for such computer,

computer system or computer network including information or data held or stored on any removable storage medium Introducing any computer virus or contaminant in the computer, computer system or network Damaging the computer, computer system or network Disrupting the working of the computer, computer system or network. Disrupting the access of the computer, computer system or network of an authorized user. Providing assistance to ensure unauthorized access to the computer, computer system or network. Tampering with computer source documents Hacking with computer system Publishing of information which is obscene in electronic form Carrying on activities that are not in compliance with the provisions of the Act. Failure to extend all facilities and technical assistance to the Controller to decrypt any information necessary for the security of the nation. Unauthorized access or attempt to secure unauthorized access to a system that by official notification is declared a protected system. Misrepresenting or suppressing any material fact from the Controller or Certifying Authority for obtaining any license or Digital Signature Certificate. Breach of confidentiality and privacy. Publishing Digital Certificate false in certain particulars Failure to furnish any document, report, information, maintain book of account as required by the Controller or Certifying authorities.

6.6 Check your progress Questions: 1. Discuss the current forms of computer crime 2. Discuss the classification of crimes under the IT Act, 2000.

Unit 7

CYBER CONTRACTS

Introduction

The Indian Contract Act, 1872 has been the basis for the enforcement of Contracts. The Act specifies the conditions that are necessary for a contract to be a valid contract and to be enforceable by law. The Information Technology Act, 2000 (I.T. Act, 2000) contains provisions on how a contract can be formed electronically. The Act acts in conjunction with the Indian contract Act, 1872.

7.1 Objective The objective in this unit is to give you a concise picture regarding the format ion of a contract, the validity of a contract and statutory provisions governing the format ion of a contract. After reading through this u nit you will be able to explain the essential features of contract formation and the specific requirements for electronic contracts.

7.2 Cybe r Contract The format ion of a valid contract is governed by the Indian Contract Act, 1872. A contract could be made in any form to show an agreement between two parties which takes into account all the essentials of a contract. Writing is not essential for the validity of a contract except where a specific statutory provision requires writing. An arbitration clause may be in writing. However the traditional method of recording a contract and signing a contract by all the parties continues to be the prevalent mode of executing a contract. A written document with the signature is associated with validity and as a useful evidence of a transaction. An offer and acceptance are two main ingredients of a valid contract. New avenues to conclude and validate a contract executed by people separated geographically have emerged. In the age of the

internet where distances are no barriers to business, the primacy of paper documentation had given way to contracts by electronic means. As far as there is a valid offer and acceptance, the means of communication has ceased to be a factor. The I.T. act 2000 being a commercial code of e -business transaction contains provisions with means to conclude a contract electronically and also to provide a legal validity to such a transaction.

The I.T. act states that where any law provides that information shall be in writing or in printed form, the requirement is deemed to be satisfied if such information is in an electronic form and is accessible for subsequent reference. The key ingredients of the formation of electronic contracts comprise communication of offer and acceptance by electronic means, verification of the source of the communication, authentication of the time and place of dispatch and finally the verifiability of the receipt of the data communication. If the key ingredients are satisfied the legal enforceability of an electronic contract is at par with the paper contract. The provisions of the act are not applicable to the following Negotiable instruments such as cheque, Bill o f Exchange and Promissory note as defined in the Negotiable instruments Act, 1881. Power o f attorney instruments as defined in the Power of Attorney Act, 1882 Trust as defined under the Indian Trusts Act, 1882 Will as defined in the Indian Succession Act 1925 Any contract for the sale or conveyance of immovable property Any such class of documents or transactions as may be notified by the central Government in the official Gazette. their scope based on whether a purchase is a good or a service.

7.3 Essentials of a contract In India, the general law of contracts is contained in the Indian Contract Act 1872. The Act defines "contract' as an Agreement enforceable by law. The essentials of a (valid) contract are: Intention to create a contract. Offer and acceptance.

Consideration Capacity to enter into contract. Free consent of the parties. Lawful object of the agreement.

Writing is not essential for the validity of a contract, except where a specific statutory provision requires writing. An arbitration clause must be in writing.

7.3.1 Intention to be bound A definite intention to be bound is highlighted by Gibson v. Manchester City Council (1979) 1 A ll E.R. 192. In 1970, M adopted a policy of selling council houses to tenants. In February, 1971 the City Treasurer wrote to G, stating that council "may be prepared to sell the house to you at 2,180 (freehold)". The letter asked G to make a formal application. This he did, and the council took the house off the list of council-maintained properties. Before the completion of the normal process of preparation and exchange of contracts when property is sold, control of the council changed hands and the policy of selling council houses was reversed. The new council decided only to complete those transactions where exchange of contracts had already taken place.

In the Court of Appeal, it was held (by a majority) that a contract had been made between G and M. Lord Denning suggested that "there is no need to look for a strict offer and acceptance" in every case; a price had been agreed and the parties intended to carry through the sale. However, the House of Lords held that the February letter was (at the most) an invitation to treat and therefore G's application was an offer and not an acceptance. (Informal agreements for the sale of houses are not lightly to be held binding contracts, because, otherwise buyers may find themselves committed before securing mortgage finance.

7.3.2 Offer and Acceptance It is an essential ingredient of a contract that there must be an offer and its

acceptance. If there is no offer, there is no contract, because there is no meeting of minds. Again, if there is an offer by one party, but it is not accepted by the other party or if the ostensible acceptance of the offer is defective, then also, there is no agreement and therefore no "contract".

These propositions may appear to be elementary. A large bulk of commercial litigation, however, requires the parties to deal with the basic questions, which are: Has there been an offer at all in the particular case, or is there something less than an offer? Has there been an acceptance of the offer? If there is an acceptance, is it in the proper form? Has the acceptance been communicated to the offer or?

7.3.3 Concept of offer An offer (or its Indian counterpart, a "Proposal") is not defined by statute. It is generally understood as denoting the expression, by words or conduct, of a willingness to enter into a legally binding contract. By its terms, it expressly or impliedly indicates that it is to become binding on the offer or as soon as it has been accepted, usually by a return promise or an act on the part of the person (the offered) to who m it is so addressed.

An acceptance, in relation to an offer, is a final and unqualified expression of assent to the terms of the offer. Offer followed by acceptance is an agreement. If an agreement is enforceable by law, it is a 'Contract'.

7.3.4 Offer by and to whom An offer must be made by a person legally competent to contract on his behalf, by someone authorized by him to make the offer. It is usually made to a person or to a number of persons), but it can be made to the entire world, as happened in Carlill v.

Carbolic-Smoke Ball Co., (1893) 1 Q.B. 256: (1891-94) All E.R. Rep. 127. In that case, the defendants (manufacturers of medicinal smoke balls) promised to pay 100 to anyone who, after having bought and used their smoke balls, caught influenza. Plaintiff did so and caught influenza. Plaintiff was held entitled to re- cover. It was no defense that there was no particular individual to who m the announcement was address. Such contracts are sometime called "unilateral contracts", not a very happy term, because a contract can never be "unilateral". There must be two parties. It is really a case of innumerable offers, made to all potential readers of the announcement. 7.3.5 Statements which are not offers Every statement of intention is not an offer. A statement must be made with the intention that it will be accepted and will constitute a binding contract. Following are not offers: Statement made during negotiation, without indicating that the maker intends to be bound without further negotiation. A statement which invites the other party to make an offer (e.g. a notice inviting tenders). Statement of lowest price. Harvey v. Facey, (1893) A.C. 552; Macpherson v. Appana, A.I.R. 1951 S.C. 184. It is regarded as an invitation to make offers Re Webster (1975) 132 C.L.R. 270. A quotation. Mylappa Chettiar v. Aga Mirza, (1919) 37 M.L.J. 912. Display of goods in a shop with price tags is not an offer, but is merely an invitation to make an offer, so that the trader may not accept the offer if the price is incorrectly Bell (1960) 3 All E.R. 731. 7.4 Termination of offer Some parties clearly indicate that their statements or documents do not constitute offers, e.g. estate agents. "These particulars do not form, nor constitute any part of an offer, or a contract, for sale". Until an offer is accepted, it creates no legal rights and it may be terminated at any time in a variety of ways.

Principal modes of termination of offer are By the offer or revoking (or withdrawing) it before acceptance. In Great Northern Rly Co. Ltd v. Witham, (1873) L.R. 9 C.P. 16. GNR advertised

for tenders for the supply of such stores as they might require for one year. W submitted a tender to supply the stores in such quantities as GNR 'might order from time to time' and his tender was accepted. Order was given for some time, but eventually W was given an order which he refused to carry out. It was held that W was in breach. A tender of this kind was a standing offer which was converted into a series of contracts as GNR made their orders. W might revoke his offer for the reminder of the period covered, but must supply the goods already ordered. Revocation of an offer is effective only when communicated to the offered. By the offered rejecting the offer outright or by making a counter-offer. By lapse of time, if the offer is stated to be open only for a fixed time.

7.5 Quality of acceptance Acceptance of an offer must be absolute and must correspond with the terms of the offer. This rule, a key constituent of the basic premise, does not always accord with the realities of complex business contract negotiations today. Such negotiations may indeed proceed through a series of proposals, counter-proposals, withdrawals, variations and qualifications, before agreement (or otherwise) is reached. When parties carry on lengthy negotiations, it may be hard to say exactly when an offer has been made and accepted. Butler Machine Tool Co. Ltd. v. The Ex. Cello Corp. (Eng.) Ltd., (1979) I W.L.R. 401.

The court must look at the entire correspondence to decide whether an apparently unqualified acceptance did, in fact, conclude the agreement. A conditional offer, if accepted must be accepted along with the conditions. Shyam Sunder v. Mun. Chairman, A.I.R. 1984 Orissa III -113.

7.6 Consideration As a rule, an agreement without "consideration" is void. The Indian Contract Act defines "consideration" as follows: "When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains

from doing, or promises to do or abstains from doing something, such act, abstinence, or promise is called a consideration for the promise".

A mere promise to give a donation, either orally or in writing is not enforceable. Settlement bona fide but doubtful claims involves a bargain between the contracting parties and is, there- fore, based on consideration. Money is not the only form of consideration. A consideration may consist sometimes in the doing of a requested act, and sometimes in the making of a promise by the offeree. Forbearance of sue at the promisor's desire constitutes good consideration.

Consideration is not required for a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor or something which the promisor was legally compellable to do. It is also not required for a written and signed promise by the debtor (or his duly authorized agent) to pay a time barred debt to the creditor.

7.7 Capacity of the parties A person is competent to contract if, at the time of making it, he is of sound mind, major and not disqualified from contracting under law. Where he has not attained the age of 18 years (or being under a court of wards, has not attained the age of 21 years), he cannot contract. Agreements made by minors are void. Minors cannot, on attaining majority, ratify agreements entered into during their minority. But if a minor makes a fraudulent misrepresentation about his age and obtains a loan, he can be required (at the discretion of the court under section 33 of the Specific Relief Act 1963) to refund it or to make compensation for it. An unadjudged lunatic can enter into a valid contract during lucid intervals. A corporation can contract subject to certain limits. 7.8 Consent When consent to a transaction is procured by coercion, undue influence, fraud or misrepresentation, the agreement is voidable at the option of the party consent was so procured. Cases of undue influence arise where the transaction is ex facie unconscionable and one party was in a position to dominate the will of the other.

Where parties are bound by a fiduciary relationship, as in the case of father and son, doctor and patient, master and servant, advocate and client, the law protects the weaker party, throwing on the other party the burden of proving that no undue influence was exercised. Mutual mistake in respect of material facts in the formation of a contract renders the agreement void. A unilateral mistake, however, does not render an agreement void. Nor does a mistake of law affect its validity.

7.9 Unlawful agreements An agreement, whose consideration or object is unlawful, is void. The consideration or object of an agreement is unlawful, if it is forbidden by law or it would defeat the provisions of and law, is fraudulent, or involves or implies injury to the person or property of another or the court regards it as immoral or opposed to public policy. A party to an illegal agreement who has advanced money under it to the other party is entitled to recover it, if the illegal purpose has not been partly or wholly carried out.

The Monopolies and Restrictive Trade Practices Act, 1969 now deals with the law relating to trade combinations. Agreements in restraint of marriage, trade and legal proceedings are void. The seller of the good -will of a business may, however, validly agree with the buyer to restrain from carrying on a similar business within specified local limits, provides the limits are reasonable.

7.10 Persons bound by contract Promises bind the promisors and (in case of death of promisors before performance) their legal representatives, unless there is a contract to the contrary, or the nature of the contract is such that it depends upon the personal qualifications of any party.

7.11 Performance and frustration There are special provisions dealing with the case where time is the essence of

contract. In commercial contracts, it is better to provide specifically that time is of the essence. A contract is validly discharged by faithful performance, by release or remission by the promisee. By 'frustration" (under law) or by "Novation" (by agreement). Frustration occurs when unexpected developments subsequent to the making of the contract render performance impossible. Novation occurs when the old agreement is replaced by a new agreement. 7.12 Subsequent Events and Frustration If, subsequent to the making of the contract, some event happens, which the parties could not control so that the agreement cannot be performed, the contract is said to be "frustrated" because the contract then becomes impossible of performance. Frustration may occur by a change in the law, destruction of the subject matter, super venting incapacity of the contracting party to perform the contract or fundamental change in circumstances after the contract is made. Mere strike, lockout in the factory, rise in price of the contracted goods or other commercial difficulties does not, as such, render the contract "impossible" of performance.

Introduction of the permit system by statute does not absolve the promisor from supplying the goods. He must make reasonable efforts to procure the permit to fulfil his agreement. Change in market conditions also does not justify a supplier in demanding a price higher than that stipulated, unless there is an "escalation" clause.

Frustration leads to automatic termination of the contract, and exempts the parties from performance or further performance of the contract without rendering any of them liable for damages. Where, however, any party has received any benefit under the agreement, he must restore it or make compensation for it to the other party.

7.13 Remedies for Breach of Contract The principal remedies for the breach of contract are Damages, Specific performance of the contract Injunction.

7.13.1 Damages When a contract has been broken, the party who suffers by such breach is en titled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, being loss or damages which naturally arose in the usual course of things from such breach or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. The same principle applies for determining damages for breach of an obligation arising from quasi-contract. In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. 7.13.1.1 Penal Stipulations If a sum is name in the contract as the amount to be paid in case of breach of contract or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract, reasonable compensation not exceeding the amount so named or the penalty stipulated for. A stipulation for increased interest from the date of default may be regarded as a stipulation by way of penalty". The court is empowered to reduce it to an amount reasonable in the circumstances.

7.13.2 Specific performance In certain special cases dealt with in the Specific Relief Act, 1963 the court may direct against the party in default "specific performance" of the contract, that is to say, the party may be directed to perform the very obligation which he has undertaken by the contract. (P.M. Bakshi, 1994)

7.13.3 Injunctions An injunction is a preventive relief and is granted at the discretion of the court. The discretion of the court is not arbitrary but is guided by judicial principles. A further check on the discretion is the provision for correction through an appeal in a higher court. The different types of injunctions are a. Temporary injunction: A temporary injunction is granted to continue until a specified period of time or until the time the court orders its continuation. The injunction can be granted at any time of the suit and is governed by the Code of civil procedure. b. Permanent injunction: A permanent injunction is granted to prevent a breach of an obligation existing in favor of an applicant. A permanent in junction is granted by the court only after an hearing and on the merits of the case.

7.14 Check your progress Questions: 1. Discus the essentials of a valid contract 2. What are the remedies for the breach of a contract?

Unit 8

Cyber Privacy

Introduction

Privacy in cyber space has assumed great importance given the proliferation in electronic commerce. The privacy violation particularly in the western societies is viewed as an infringement of one's right, whether the violation concerns activity that is of a commercial or a private nature. In this unit you will find a detailed discussion regarding privacy issues confronting the cyber world

8.1 Objective This unit will discuss important issues that figure in cyber piracy. You will be able to exp lain the different aspects of cyber privacy and analyze the privacy issues that need to be addressed.

8.2 Cyber Privacy - A perspective Be that as it may, like the benefits we are also experiencing the risks and effects of vulnerabilities of the information technology in the same way. Among other concerns, privacy in cyber space has acquired center stage, of late, in view of more than one reason. As the number of online users increase, the information rendered by them multiplies. The concern about that information is, whether online users can exercise any kind of control over the information that has been passed on to the service provider in the cyber medium? The concern is quite legitimate, because, by and large such information is personal and private.

Depending upon the nature of transaction that is likely to be entered or created, the nature and extent of information will be provided by the users or rather demanded

by the service provider. The information includes, e-mail identity, address for communication, telephone numbers, employment, marital status, health status and financial information and the like. In other words, the growing influence of information technology is resulting in sharing and storing of wealth of personal information. Today enormous amounts of information are being collected by many thousands of web sites. As of now in the practice while an effective technology called SSL (Secure Sockets Layer), is used for protecting the privacy of the transaction between a browser and a web server, the protection ceases once the information is on the server and in the hands of the entity.

In the area of data-gathering and use by on-line businesses, the new technology has made it possible not only to store personal information provided by consumers but also to track consumers" decisions as they move through on line sites - whether or not they complete transactions. Should this sort of transactional data be used differently than the personal information affirmatively provided by consumers? The personal and transactional information that can be captured on-line differs both qualitatively and quantitatively from the information a merchant obtains when an in person transaction is completed. Should the nature of the information gathered limit the uses to which such information may be put by business? Are there, for example, types of information that should not be used for target marketing purposes? Should information gathered for the purpose of consummating a transaction be used for market research? What are the limits on a business' ability to resell/rent personal consumer information to other businesses? Is it appropriate to think of a consumer's interest in his or her personal or transactional information as a "right"? If so, what is the responsibility of business with regard to that right? If not, to what extent should the consumer have control over personal and transactional information? How should the consumer's control be exercised? What constitutes voluntary consent to the use of personal or transactional information that has been gathered on -line? How much is the consumer entitled to know about the uses to which personal or transactional information will be put? At what stage in a business relationship should the consumer be asked for consent? Should that be informed consent? If so, what kind of information is to be furnished by the service provider? To what extent should consumers have access to the information about and the ability to correct or modify information that is being collected from them and gathered about them?

(http://www.ftc.gov/speeches/varney/varnprvy.htm) the service provider.

These

are

well

founded

concerns of online users who part with the information, as and when demanded by

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi etarmis. ( See, Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, Harvard Law Review, Vo l.15, 1890,at p.192)

However, the passage of time revealed that only a part of the pain, pleasure, and profit of life lay in physical things, and the remaining in the personhood, in the sense of, thoughts, emotions and sensations and the like. The unique feature of common law enabled the judges to afford the requisite protection, without the interposition of the legislature, in this area of intangible nature, i.e., privacy. (Id) Judge Cooley pronounced this as right to be left alone. (See Cooley on Torts, 2d ed., p.29)

In this process, over a period of time, the nature of legal response in the form of common law based tort law, has evolved towards privacy concerns. This development had profound impact particularly on constitutional law. In so far as Indian context is concerned, by and large, evolution of privacy related law had undergone similar experience. One unique development in this respect is, judiciary's painstaking efforts to recognize right to privacy involving gender dimension which can be acquired by virtue of a local custom or a grant or special permission. (See Ratanlal and Dhirajlal, Law of torts at pp382-383). In recent times, the Supreme Court's pronouncements (Particularly focusing on surveillance and telephone tapping situations. Gobind v. State of M.P. (1975) 2 SCC 148 per Hon'ble K.K. Mathew, V.R. Krishna Iyer and P.K. Goswamy JJ. Also see Kharak Singh v. State of U.P. AIR 1963 SC 1295 per Hon'ble B.P. Sinha, Syed Jafer Imam, K. Subba Rao, J.C. Shah, N. Rajagopala Iyengar, J.R.

Mudholkar JJ.) On this matter from the perspective of Constitutional law are quite enlightening. Justice K.K. Mathew, in one such case, observed that, privacy -dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible State interest, the characterization of a claimed right as a fundamental privacy right would be of far less significancePrivacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values. Any right to privacy must compass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give an analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right imp licit in the concept of ordered liberty. The right to privacy in any event will necessarily have to go through a process of case -by-case development'. In an attempt to legitimately justify this kind of interpretation of bringing right to privacy under Article 21 of our Constitution, Justice Kuldip Singh (People's Union for Civil Liberties (PUCL) v. Un ion of India (1997) 1 SCC 301 per Hon'ble Kuldip Singh, S. Saghir Ahmed JJ.) affirmed that, India is a signatory to the International Covenant on Civil and Political Rights, 1966. Article 17 thereof provides for right of privacy. Article 12 of the Universal Declaration of Human Rights, 1948 is almost in similar terms. Article 17 of the International Covenant does not go contrary to any part of our municipal law. Article 21 of the Constitution has, therefore, to be interpreted in conformity with the international law. The right to privacy, the Supreme Court continued, by itself, has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as

right to privacy. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. Right of privacy would certainly include telephone conversation in the privacy y of one's home or office. Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law'.

Though it is claimed that the constitutionally interpreted right to privacy under Article 21 can be enforced against private persons as well, many others strongly feel that the right to privacy against private persons can only be enforced by invoking the principle of privacy as an actionable tort per se. (See R.Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632 per Hon'ble B.P Jeevan Reddy and Suhas C. Sen JJ Also see, Soli Sorabjee, Privacy and Defamat ion : Supreme Court defines parameters, Indian Express dated 12th November, at p.9.)

Similarly, any act or behavior threatening or disturbing privacy per se has not been subjected to criminalization, in the initial phase. One plausible reason could be, like criminal law, for long has not recognized any kind of injury or interference caused to either intangible or incorporeal property. That's the reason why, till suitable and subject specific statutory codifications have been made, in English Criminal law, theft of information was not construed as a criminal offence. (See Chris Reed and John Angel, Computer Law at pp.270-71. For similar developments in Scotts Law and Canadian Law, see ibid. at pp.271-76.) More or less similar developments have taken place in Indian context as well.

The concern has acquired a new dimension in the electronic era. Unlike the legal rules concerning corporeal objects, information law does not only consider the economic interests of the proprietor or holder but also takes into account the interests of persons concerned with the content of information. Before the invention of computers, the legal protection of persons in regard to the content of information was limited. Few provisions existed in the criminal law other than those in relation to libel. Since the 1970s, however, new technologies have expanded the possibilities of collecting, storing, accessing, comparing, selecting, linking and transmitting data,

thereby causing new threats to privacy. This has prompted many countries to enact new elements of administrative, civil and penal regulations. Various international measures support this evolution by developing a common approach to privacy protection. (1 http://www.ifs.univie.ac.at/~pr2gq1/rev4344.html )

In response to the challenges posed by the cyber context, different legal measures have been initiated in diverse jurisdictions, particularly envisaging remedial measures for privacy violations. (For instance see Data Protection Act, 1998. For a comprehensive source of primary and secondary legislation in this regard, see Encyclopedia of Data Protection, S.Chalton, S.Gaskill,H. Grant and I Walden (eds), London:Sweet & Maxwell (looseleaf) Section 72 of The Information Technology Act, 2000 states that any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made there under has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees or with both.)

At the outset, it is necessary to understand and realize that any attempt to address the concerns pertaining to consumer privacy should not ignore or overlook the concerns of all those who possess an interest in the continued growth of e-commerce and trade. There appears to be a kind of consensus which is largely driven by the thinking of National Information Infrastructure Task Force (NIIF) (Constituted by Clinton administration, based in USA.) to the effect that electronic medium must shape development of a workable privacy policy which could be pragmatically subjected to realistic enforcement without compromising the interests of either the industry or the consumers. In this regard, fundamentally envisaged principles include: (a) everyone associated particularly, consumers, government and business have a shared responsibility towards fair and proper use of personal information; (b) the technology must be consumer friendly, in the sense that it would empower individuals to take steps to protect that information themselves; (c) transparency about and accountability for the process of collecting and using personal information;

(d) dissemination of information about the ways in which the personal information is used or misused in cyberspace. (This is with a view to create public awareness, so that the public will be able to initiate appropriate preventive measures.)

The NIIF privacy principles broadly identify three fundamental concerns that must govern the way in which personal information is acquired, disclosed and used on the net - information privacy, information integrity and information quality. First an assurance as to the collected personal information regarding its proper usage. Second, unfair or improper alteration of personal information. And, third, personal information should be accurate, timely, complete and relevant for the purposes for which it is provided and used.

In addition, those who gather and use personal information should recognize and respect the privacy interests that individuals have in personal information by (a) assessing the impact on privacy in deciding whether to obtain or use personal information, and (b) obtaining and keeping only information that could be reasonably expected to support current or planned activities and use the information only for those or compatible principles and none else. As the individual consumers must be enabled to take informed decision about providing personal information, the service providers or entities that collect information must be obligated to comply with the following by disclosing: (a) why they are collecting the information; (b) what is the apparent purpose of collecting such information; (c) what measures will be employed to protect its confidentiality, quality and integrity of information collected ; (d) reasonable consequences in the form of substantive remedies for providing or withholding information. (http://www.ftc.gov/speeches/varney/varnprvy.htm For detailed insights into obtaining market practices, browse, http://www.paytrust.com/htmlu/privacy.htm http://www.charlestonwv.net/Internet_Services/termsandconditions.html http://www.eroute.com/English/EBPPFQA.html http://www.knowledgestor.com/faqs/privacypolicy.shtml http://www.transpoint.com/privacy_ .asp )

8.3 Policy approaches to privacy concerns According to the current thinking the policy regime pertaining to protection of privacy concerns may be premised upon markets, human rights three approaches, and contracts. namely, based on

(http://www.osu.edu/units/law/swire1/cyber.html ) 8.3.1 Market approach Fundamentally, the market oriented approach rejects extrinsic legal enforcement and takes within its fold self- regulatory mechanisms which would enable the market p layers to employ or adopt. Any failure on the part of the market player will get disciplined or rectified by the market place. However, this approach of market discipline does not talk tangible consumer remedies.

8.3.2 Human rights approach The human rights approach recognizes right to information and the related attribute of privacy as a human right. Naturally, surveillance becomes operational strategy to protect the interests of the members.

8.3.3 Contract approach The third approach recognizes contract model. Prima facie this model premises on the ground that in a given context the privacy concerns are better protected if the concern is treated as terms and conditions of the contract. As a result, the contract imposes an obligation on the parties to protect the privacy concerns, if not or in the event of breach the contract itself provides for contractual remedies.

Almost in every case of cyber service providing, policy pertaining to protection of the privacy interests of the consumer is normally announced. Normally this forms part of the envisaged terms and conditions of the contractual relationship. For instance,

Transpoint's privacy policy runs as respecting customer privacy is of utmost importance to transpoint. To assure you of transpoint's commitment to privacy, transpoint publishes and complies with this privacy policy in its delivery of the transpoint service to you, the end user.Transpoint minimizes the collection of information that personally identifies you or allows you to be contacted. Transpoint and its necessary service providers use your personal information to operate the transpoint service, which includes providing customer service to end users, billers, and financial institutions, to keep you informed of transpoint services, and to fulfill legal and regulatory obligations. In order to protect your privacy, transpoint does not share your personal information with any third party except as necessary to operate the transpoint system and to fulfill legal and regulatory obligations.' (http://www.transpoint.com/privacy_policy.asp )

Similarly, pay trust privacy pledge reads as the privacy and security of your personal information is the foremost consideration of the pay trust service. Pay trust will never sell any of your personal information - contact, financial, bill history - to any other company, period. Unlike many billers who routinely sell their customers to direct marketing organizations, pay trust keeps all subscriber lists confidential. And, unlike many other web sites, pay trust does not depend on advertising for revenue. Pay trust is completely committed to safeguarding your personal information and protecting your privacy'. (http://www.paytrust.com/htmlu/privacy.ht m ) Despite the business practice of treating privacy concerns as part of overall contractual terms and conditions, the current experiences have clearly revealed that, they have little to offer in terms of providing equitable remedy to the online consumers. And also the different ways in which such personal information is misused in the cyber context has unfolded down sliding nature of public faith in cyber systems. Naturally, it is necessary to preempt the possible onslaught on the technological innovation by strategizing newer ways of protecting and promoting the privacy concerns. In response to this, Privacy Preferences Project (P3P) agreements have come to be viewed as an important process.

8.4 Platform for Privacy Preferences Project (P3P): The Platform for Privacy Preferences Project (P3P) developed by the World Wide Web Consortium (W3C), aims at providing a simple, automated way for users to gain more control over the use of personal information on web sites they browse. To put it simply, P3P is a standardized set of multiple choice questions, covering all the major aspects of a web site's privacy policies. In other words, this information enables the online consumer to select the ways in which his or her personal information will be handled by the service provider. P3P enabled browsers can read this snapshot automatically and compare it to the consumer's own set of privacy preferences. P3P enhances user control by putting privacy policies where users can find them, in a form users can understand, and, most importantly, enables users to act on what they see. (For details browse, http://www.w3.org/p3p)

Professor Lawrence Lessing opines that, in the context of proper legislation, P3P is the most promising solution to cyberspace privacy. It will make it easy for companies to exp lain their practices in a form that computers can read, and make it easy for consumers to express their preferences in a way that computers will automatically respect. (file://A:\p3p%20public%20Overv iew.htm )

P3P, on one hand, while providing facilitating environment for the consumer to decide, negotiate and firm up the contractual relationship, on the other recognizes nine aspects of online privacy. The first five aspects deal with (a) who is collecting this data? (b) Exactly what information is being collected? (c) For what purposes? (d) Which information is being shared with others? (e) And who are these data recipients? The remaining four aspects focus on the site's internal privacy policies. They include (a) can users make changes in how their data is used? (b) How are disputes resolved? (c) What is the policy for retaining data? (d) And where can the detailed policies are found in human readable form? (Id)

Essentially P3P will help responsible online businesses empower users to choose the privacy relationship best for them. As of now, key international market players of diverse business practices are adopting this approach. They include, Microsoft, Nokia,

IBM, Netscape etc. (Supra. N. 21)

If we look into the way in which P3P agreements are invoked, there seems to be adequate material to structure our critical response. P3P is nothing but software to negotiate privacy agreements between web sites and online visitors. It is a kind of social technology which involves not merely technology but also active participation of human beings. Software generated information enabling browsers to decide about the effective ways of protecting their privacy interests, (in the form of P3P) as a process presupposes prior knowledge on the part of the consumers. Mere computer literacy in the sense of operating a system is not adequate. What is required is technical knowhow in understanding and appreciating the technical language that is employed in structuring the agreements. Particularly the kind of vocabulary that is used. Secondly, the entire framework of P3P lacks transparent negotiability factors, as a result of which the online consumer has to depend on what is given as a possible option or choice. In a sense, the agreement reflects more of unitary approach with standardized set of terms and conditions. Another significant part is that, before the consumer finalizes the deal, he or she must be categorically and unequivocally informed as to what the entity is going to do with the information to be provided by the consumer. Under no circumstances, this option can be given to the party after finalization of the contract, in such a case; it would not serve any purpose. How do we ensure this? Unless it is ensured, it is difficult to say that P3P agreements empower netizens to exercise control over the information given by them.

Though P3P agreements apparently claim protection or control over the information, however, do not provide a technical mechanism for making sure service providers act according to their agreements. Therefore, there is a need for parallel laws and systemic and processes including method self-regulatory of protecting programmes privacy which can provide (http:// Also see enforcement mechanisms. If not, P3P may not be construed by public as an effective alternative interests. www.webtechniques.com/archives/1999/09/ackerman/sidebars/1.shtml) .edu/p3crit ique)

Robert Thibadeau, A Critique of P3P: Privacy on the Web (http://dollar.eco m.cmu

8.5 Check your progress Questions: 1. Discuss the policy approaches to privacy issues 2. Exp lain the essentials of Privacy Preferences Project (P3P) platform