Cyber Jurisprudence; Evolution of Cyber Laws

By

Shahid Jamal Tubrazy

Techopedia Define Cyber Law

Cyber law is the area of law that deals with the Internet's relationship to technological and electronic
elements, including computers, software, hardware and information systems.

Wikipedia Defines

Cyber law or Internet law is a term that encapsulates the legal issues related to use of the Internet. It is
less a distinct field of law than intellectual property or contract law, as it is a domain covering many
areas of law and regulation. Some leading topics include internet access and usage, privacy, freedom of
expression, and jurisdiction.

S J Tubrazy Defines

Cyberlaw is the field of law defining and covering all legal issue of computer and internet.

Almost, immediately later, the emergence of the internet, a new phenomenon of cyber law has
materialized; internet grew completely in unfettered and unplanned manner. The cyberspace is growing
continuously every day with the rate resembling matrix multiplication. A new environment is being
accustomed by this world. In retort to the extremely complex and newly emerging legal ticklish issues
relating to cyberspace, cyber law or the law of Internet come about. The growth of cyberspace has
resulted in the development of a new and highly specialized branch of law called cyber law - laws of the
internet and the World Wide Web. Cyber law principally deals with the following areas amongst the
others;

i. Data protection, processing and privacy

Data protection law provides a remedy for a breach of the data protection principles 10 and cause of
action for a breach of the duties imposed by data protection laws. It creates a set of scales between the
rights of individuals to privacy and the ability of organizations to use data for the purposes of their
business. The Data Protection laws introduced basic rules of registration for users of data and rights of
access to that data for the individuals to which it related.

The Data Protection Directive (officially Directive 95/46/EC ) is a European Union directive which
regulates the processing of personal data within the European Union. It is an important component of
EU privacy and human rights law. On 25 January 2012, the European Commission unveiled a draft
European General Data Protection Regulation that will supersede the Data Protection Directive.
Information privacy, or data privacy (or data protection), is the relationship between collection and
dissemination of data, technology, the public expectation of privacy, and the legal and political issues
surrounding them. Privacy encompasses the rights and obligations of individuals and organizations with
respect to the collection, use, retention, disclosure, and disposal of personal information.

ii. E- commerce

E-commerce refers to the buy and sale of goods or services via electronic routes, such as the Internet.
Online retail is convenient due to its 24-hour availability, global reach and relieve of customer service. It
is currently one of the most important aspects of the Internet to materialize.

E-commerce allows customers to electronically trade goods and services with no impediment of time or
distance. Electronic commerce has expanded rapidly over the past ten years and is predicted to continue
at this rate, or even speed up. In the near future e-commerce will become increasingly imprecise as
more and more businesses move sections of their operations onto the Internet.

Main four categories are, B2B, B2C, C2B, and C2C. Business to Business or B2B refers to electronic
commerce between businesses and often deal with hundreds or even thousands of other businesses,
either as customers or suppliers. Carrying out these transactions electronically bestows vast competitive
advantages over traditional methods. E-commerce is often faster, cheaper and more convenient than
the traditional methods of bartering goods and services.

iii- E- Transactions and E-contracts in cyberspace

Traditional concept of contract provides the foundations to all types of valid and enforceable contract,
keeping in view the meanings of definition of contract as, ‘all agreements are contracts if they are made
by the free assent of parties competent to contract, for a lawful consideration and with a lawful object
and are not thereby expressly declared to be void' the term contract would include invitation to tender
and instruction to renderers, ‘tender, and acceptance thereof.

An electronic contract is an agreement created and "signed" in electronic form -- in other words, no
paper or other hard copies are used. For example, you write a contract on your computer and email it to
a business associate, and the business associate emails it back with an electronic signature indicating
acceptance. An e-contract can also be in the form of a "Click to Agree" contract, commonly used with
downloaded software. The user clicks an "I Agree" button on a page containing the terms of the
software license before the transaction can be completed.

The United Nations General Assembly Resolution No. A/ RES/51/ 162, dated 30th January 1997, Chapter
III and specifically Article 11 sets about the formation and validity of E-contract.Article 11 states that in
the context of the contract formation unless otherwise agreed by the parties, on offer and the
acceptance of an offer may be expressed by means of data message. Where data message is used in the
formation of a contract that contact shall not be denied validity or enforceability on the sole ground that
a data message was used for that purpose.Simultaneously, Article 12 states that as between the
originator and the addressee of a data message, a declaration of will or other statement shall not be
denied legal effect, validity or enforceability solely on the ground that it is in form of a data message.

According to UNCITRAL Model Law, Article 11 is not intended to interfere with the law on formation of
contracts but rather to promote international trade by providing augmented legal certainty as to the
conclusion of contracts by electronic means. In certain countries a provision along with the lines of
provision of Articles 11 might be regarded as merely stating the obvious, namely that an offer and an
acceptance, as any other expression of will, can be communicated by any means, including data
message. However the considerable number of countries as to whether contracts can validly be
concluded by electronic means. Such reservations may stem from the fact that, in certain cases, the data
message expressing offer and acceptance are generated by computer without instantaneous human
intervention, thus raising doubts as to be expression of intent by the parties. Another reason of such
uncertainties is inherent in the modes of communication and results from the absence of a paper
document.

Throughout the preparation of provisions of Article 11, it was felt that the provision might have the
harmful effect of overruling otherwise applicable provisions of national law, which might prescribe
specific formalities for the formation of certain contracts. Such forms include notarization and other
requirements for writings and might respond consideration of public policy, such as the need to protect
certain parties or to warn them against specific risks. For that reason Article 12 provides that an
enacting State can exclude the applicability of provisions of Article 11 in certain instances to be specified
in the regulation enacting the Model Law.

While much of the contract formation discussion revolves around the use of computer technology as a
means of communication by contracting parties, a far more difficult issue is beginning to emerge with
the automation of the contracting process itself. Traditional contract doctrine centers around the
requirement of a `meeting of the minds'. The involvement of two or more people, negotiating either
face-to-face or through some means of communication is an underlying assumption. However, modern
technology is evolving with a goal of eliminating human involvement in transactions. How traditional
contract doctrine will accommodate situations where the only `minds' that meet are programmed
computer systems is uncertain.

For transactions caught by the International Sale of Goods Act, the "mailbox rule" does not apply.
Instead, the Act sets out that the acceptance of an offer becomes effective at the moment the indication
of assent reaches the offeror.

To protect consumers from potential abuses, electronic versions of the following documents are invalid
and unenforceable:

1. wills, codicils, and testamentary trusts

2. documents relating to adoption, divorce etc,

3. court orders, notices, and other court documents such as pleadings or motions
4. notices of default, repossession, foreclosure, or eviction, etc

These documents must be provided in traditional paper and ink format.

Business-to-business contracts are an indispensable part of trading business relations since many
centuries. With the advent of information technology, companies started using information
technologies to support their trading relations. Consequently, in trading relations supported by modern
information technology, traditional paper contracts become an inefficient and ineffective instrument to
guarantee the rights and specify the obligations of the trading parties and electronic contracts become a
necessity. Electronic contracts are the instrument to govern electronic trading relationships between
business parties.

Traditional commercial transactions come to pass in physical world using paper based means while
electronic transaction are carried over electronic medium (eg the internet , cyberspace). The whole
world tends to maintain documentation electronically due to its involvement of low cost, less storage
space for storing and the availability of facilities to enter into contracts even without meeting or having
a conversation with each other from different parts of the world. Therefore, majority of business
transactions in the world have taken place under e-Commerce and consumers like better to enter into
online purchasing with the development of internet.

Since there should be a legal acceptability, adoption and recognition of electronic transactions, the
United Nations Commission on International Trade (UNCITRAL) made the General Assembly Resolution
51/162 of 16.12.1996 which guided to enact the Model Law on Electronic Commerce (1996).

iv. Cybercrimes

It refers to illegal internet-mediated activities that often take place by means of information and
communication technologiesin global electronic networks. It is principally expansion of traditional crime
with the support of modern technology. Cybercrime can be regional or international. Border between
countries in cyber space is obscure and unclear.

Cybercrime plentifully involve the character of International crime which often threat the competence
of domestic and international law and law enforcement. For the reason that on hand laws are not
adapted to deal with cybercrimes, criminals progressively carry out crimes on the Internet in order to
take advantages of impediments of being traced.There are so many types of cybercrimes, some high
profile offences faced by online world precisely enumerated as hacking, online identity theft, denial-of-
service attack, phishing, spamming, web jacking, data diddling, software piracy, etc.

v. Intellectual property

In common law intellectual properties is a form of legal right which allows its owner to have control the
use of his ideas and their expansion. Intellectual property depicts a wide variety of property created by
musicians, authors, artists, and inventors.
Intellectual Property connotes the legal rights which are resulted from intellectual endeavor in the
industrial scientific, literary and artistic fields. It is a faction of legal doctrines that regulate the uses of
different sorts of information, ideas and motif or distinguishing marks of honor and the person who is
owner originally creator of an 'Intellectual Property' has lone and exclusive entitlement to use it and to
draw all benefits from the profit inherent.

Customarily every country established and enforced its own intellectual property rights, beginning with
the Paris Convention for the protection of industrial property in year 1883, several treaties have
provided for cross border protection and multinational measures.

World Intellectual Property Organization (WIPO) was established in 1967 based at Geneva has become
the world's central organization for the promotion of internationalism in intellectual property.

The term 'intellectual property' has been in use in the United States since at least the mid Nineteenth
Century, a U.S. Circuit Court defined intellectual property as:-

"The labours of mind, productions and interests as much a man's own as the wheat he cultivates."

Copyright laws have roots in eighteenth-century English Law. Wide-ranging patent laws can be traced to
seventeenth-century England, and they have been a part of U.S. law since the colonial period. Intangible
rights protecting the products of human intelligence and creation, such as copyrightable works,
patented inventions, Trademarks, and trade secrets. Although largely governed by federal law, state law
also governs some aspects of intellectual property.

References

1. Cyber law S J Tubrazy Defines at http://dictionary.reverso.net/english-definition/Cyberlaw

2. Cyberlaw at http://www.techopedia.com/definition/25600/cyberlaw

3. Legal aspects of computing http://en.wikipedia.org/wiki/Legal_aspects_of_computing

4. Cyber Crimes, Space and so Forth -a Concept of Cyber Laws at http://aspireip.com/cyber-crimes-

space-and-so-forth-a-concept-of-cyber-laws/

5. Multiplication of Matrices at http://www.intmath.com/matrices-determinants/4-multiplying-

matrices.php

6. The Science of Cyberspace – Laying the Foundation by Carl W. Hunt and Craig Harm, Last Reviewed on
3 June 2010

7. Cyber Laws & Cyber Crime - Dispute Resolution attribution http://www.citehr.com/14279-cyber-laws-

cyber-crime-dispute-resolution.html#ixzz2uYFz0M3D

8. Cyber Law Law& Legal Definition at http://definitions.uslegal.com/c/cyber-law/

9. Data Protection Act is a very detailed piece of legislation which attempts to deal with a number of
particular situations and that processing of personal data "fairly" has a meaning specific to the Act,
Lyons v Stephen House, QPM &Anor [2013] ScotCS CSIH_46 (05 June 2013)

10. Cole v Jersey Post and States Police [2003] JRC 152 (4 September 2003) URL:
http://www.bailii.org/je/cases/JRC/2003/152.html Cite as: [2003] JRC 152;

11. http://www.bailii.org/je/cases/UR/2000/90.html Cite as: [2000] UR 90.

12. The DataProtection Directive (95 /46/ EC )

13. http://www.mlawgroup.de/news/publications/detail.php?we_objectID=227;
http://en.wikipedia.org/wiki/Data_Protection_Directive

14. The Leander v Sweden judgment of 26 March 1987, Series A no. 116, p.22, § 48).

15. Metropolitan International Schools Ltd. (t/a Skillstrain and/or Train2game) v Designtechnica Corp
(t/a Digital Trends) &Ors [2009] EWHC 1765 (QB) (16 July 2009)

URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/1765.html

Cite as: [2011] 1 WLR 1743, [2009] EMLR 27, [2009] EWHC 1765 (QB), [2011] WLR 1743

16. a person has a “legitimate expectation ” of protection and respect for his or her private life.
Accordingly, it has held in a case concerning the interception of telephone calls on business premises
that the applicant “would have had a reasonable expectation of privacy for such calls” (see Halford
v. the United Kingdom, judgment of 25 June 1997, Reports 1997-III, p.1016, § 45

17. See COM (2003) 702 final: Report from the Commission to the European Parliament, the Council and
the European Economic and Social Committee: First Report on the application of Directive 2000/31/EC
of the European Parliament

18. Shopping Online: Convenience, Bargains And A Few Scams ByChizobaMorah at

http://www.investopedia.com/articles/pf/08/buy-sell-online.asp

19. Electronic Commerce Tutorial ByHTMLGoodies Staff by

http://www.htmlgoodies.com/beyond/webmaster/projects/electronic-commerce-tutorial.html

20. E-Commerce Is the Next Frontier in Global Expansion - See more at:
http://www.atkearney.com/paper/-/asset_publisher/dVxv4Hz2h8bS/content/e-commerce-is-the-next-
frontier-in-global-expansion/10192#sthash.pcDJ5uzN.dpuf

21. What is Ecommerce ? http://www.microsatit.com/default.asp?parid=11&ID=42

22. Ecommerce definition and types of ecommerce at http://www.digitsmith.com/ecommerce-

definition.html
23. What is e-Commerce http://www.webility.net/index.php/e-commerce/what-is-e-commerce.

24. Uniform Electronic Transactions Act Law & Legal Definition at

http://definitions.uslegal.com/u/uniform-electronic-transactions-act/ ;

25. E-contracts in cyber space by S J Tubrazy at http://www.articlesbase.com/cyber-law-

articles/econtracts-in-cyber-space-502731.html;