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Page 1 Thursday, April 16, 2020

Printed For: ankita yadav, Dr. RML National Law University
SCC Online Web Edition: http://www.scconline.com
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24 ALJ (2016-17) 93
Cyber Crimes and Cyber Torts: A Comparative and Analytical Perspective
CYBER CRIMES AND CYBER TORTS: A COMPARATIVE AND ANALYTICAL PERSPECTIVE

by
Mohd. Akbar Khan*
INTRODUCTION
A cybercrime is defined as an offence where the Internet, computers and mobile
devices are used to commit criminal misconduct. Some examples of this may be cyber
-terrorism or online piracy. Unlike a cybercrime, a cyber-tort falls in the sphere of
using the Internet or computers to commit a negligent or intentional civil wrong
against others. The cardinal principles of the same are attributed to a tort that differs
from a crime both in principle and in procedure. A tort is an injury or a breach of duty
to an individual for which he is entitled to get reparation from the wrong doer, while a
crime is regarded as a breach of duty to the public as a whole for which the offender is
punished by the State in the interest of society. The remedy for the former is an action
for damages by the aggrieved party in a Civil Court, while the remedy for the latter is
a prosecution in a Criminal Court.
Instances of cyber torts could be a trespass to chattels or online defamation. It is
pertinent to delve deeper and calibrate the preemptive measures in order to thwart
the imminent threats of cybercrimes and cyber torts and enquire as to how both can
happen and impact within virtual worlds in order to unleash tangible and intangible
harm that affects the physical and real environment.1 Let us evaluate what
cybercrimes are.
Definition: Some of the common definitions of cyber-crime are2:
❖ A criminal activity that involves unlawful access to or utilization of computer
systems.
❖ Any illegal action in which a computer is used as a tool or object of the crime; in
other words any crime the means or purpose of which is to influence the
functions of a computer.
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❖ Any incident associated with computer technology in which a victim suffered or

could have suffered loss and a perpetrator, by intention made or could have
made a gain.
❖ Any violation of the law in which a computer is the target of or the means for
committing crime.
❖ Any activity which involves the unauthorized and unlawful access to or utilization
of computer systems or networks in order to tamper with the data, or to
intentionally transact anything illegal with the help of computers and the
Internet, can broadly be called as cybercrime.
All the above definitions are suggestive of the involvement of either computer or
internet. Cybercrimes are the products of the Internet. A definition of cybercrime is
incomplete without reference to the Net. In India, the recent amendment in the IT
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Act, 2008 has used the term computer related offences whereby a good number of
cybercrimes have been added to the list of crimes already existing.
Cyber-crime is a kind of crime in which generally offenders of crimes are generally
hidden. Tracking cyber criminals requires a proper law enforcing agency through cyber
border co-operation of governments, businesses and institutions of other countries.
Basic liability in cybercrime is established through the principle of neighbourhood
established from the case of Donoghue v. Stevenson.3 The major liability in cyber tort
in India is through Information Technology Act, 2008 (as amended). The different
types of cybercrimes are as follow:
I. CYBER CRIMES AGAINST PERSONS
The following are the offences which affect the personality of individuals4 :
a) Harassment through E-Mails:
It is very common type of harassment through sending letters, attachments of files
& folders i.e. via e-mails. At present harassment is common as usage of social sites
i.e. Face book, Twitter etc. increasing day by day.
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b) Cyber-Stalking:
It means expressed or implied a physical threat that creates fear through the use of
computer technology such as internet, e-mail, phones, text messages, webcam,
websites or videos.
In general terms, stalking can be termed as the repeated acts of harassment
targeting the victim such as following the victim, making harassing phone calls, killing
the victims pet, vandalizing victims property, leaving written messages or objects.
Stalking may be followed by serious violent acts such as physical harm to the victim.
Cyber Stalking means repeated acts of harassment or threatening behavior of the
cybercriminal towards the victim by using internet services. Both kind of Stalkers i.e.,
Online & Offline have desire to control the victims life.
c) Dissemination of Obscene Material:
It includes Indecent exposure/Pornography (basically child pornography), hosting of
web site containing these prohibited materials. These obscene matters may cause
harm to the mind of the adolescent and tend to deprave or corrupt their mind.
d) Defamation:
It is an act of imputing any person with intent to lower down the dignity of the
person by hacking his mail account and sending some mails with using vulgar
language to unknown persons mail account.
When a person publishes defamatory matter about someone on a website or sends
e-mails containing defamatory information to all of that persons friends, it is termed
as cyber defamation.
e) Hacking:
It means unauthorized control/access over computer system and act of hacking
completely destroys the whole data as well as computer programmes. Hackers usually
hacks telecommunication and mobile network.
Unauthorized access means any kind of access without the permission of either of
the rightful or person in charge of the computer, computer system or computer
network. Hacking means an illegal intrusion into a computer system and/or network.
Every act committed towards breaking into a computer and/or network is hacking.
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Hackers write or use ready-made computer programs to attack the target computer.
They have the urge to destroy and destruct that provides them the element of
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contentment out of such destruction. Some hackers hack for personal monetary gains,
such as stealing the credit card information, transferring money from various bank
accounts to their own account followed by withdrawal of money. Government websites
are the most targeted sites for the hackers.
f) Cracking:
It is amongst the gravest cybercrimes known till date. It is a dreadful feeling to
know that a stranger has broken into your computer systems without your knowledge
and consent and has tampered with precious confidential data and information.
g) E-Mail Spoofing:
A spoofed e-mail may be said to be one, which misrepresents its origin. It shows its
origin to be different from which actually it originates.
h) SMS Spoofing:
Spoofing is a blocking through spam which means the unwanted uninvited
messages. Here an offender steals identity of another in the form of mobile phone
number and sending SMS via internet and receiver gets the SMS from the mobile
phone number of the victim. It is very serious cybercrime against any individual.
Section 66C Punishment of IT Act5 deals with identity theft.
Whoever, fraudulently or dishonestly make use of the electronic signature,
password or anyother unique identification feature of any other person, shall be
punished with imprisonment of either description for a term which may extend to
three years and shall also be liable to fine which mayextend to rupees one lakh.
i) Carding:
It means false ATM cards i.e. Debit and Credit cards used by criminals for their
monetary benefits through withdrawing money from the victim's bank account mala-
fide. There is always unauthorized use of ATM cards in this type of cybercrimes.
j) Cheating & Fraud:
It means the person who is doing the act of cybercrime i.e. stealing password and
data storage has done it with having guilty mind which leads to fraud and cheating.
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k) Pornography:
Pornography means showing sexual acts in order to cause sexual excitement. The
definition of pornography also includes pornographic websites, pornographic
magazines produced using computer and the internet pornography delivered over
mobile phones.
l) Child Pornography:
It involves the use of computer networks to create, distribute, or access materials
that sexually exploit underage children. Child Pornography is banned in India by the
present Union Government led by Shri Narendra Modi, Prime Minister of India.
The Internet is being highly used as a medium to sexually abuse children. The
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children are vulnerable victim to the cybercrime. Computers and internet having
become a necessity of every household, the children have got an easy access to the
internet. There is an easy access to the pornographic contents on the internet.
Pedophiles lure the children by distributing pornographic material and then they try to
meet them for sex or to take their nude photographs including their engagement in
sexual positions.
Sometimes Pedophiles contact children in the chat rooms posing as teenagers or a
child of similar age and then they start getting friendlier with them and try to win their
confidence. Then slowly pedophiles start sexual chat to help children shed their
inhibitions about sex and then call them out for personal interaction and starts actual
exploitation of the children by offering them some money or falsely promising them
good opportunities in life. The pedophiles then sexually exploit the children either by
using them as sexual objects or by taking their pornographic pictures in order to sell
the same over the internet.
Indian Law6
Section 67B of Information Technology Act,7 deals with the punishment for
publishing or transmitting of material depicting children in sexuallyexplicit act, etc. in
electronic form.
Whoever,—
a) publishes or transmits or causes to be published or transmitted material in
anyelectronic form which depicts children engaged in sexually explicit act
orconduct or
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b) creates text or digital images, collects, seeks, browses, downloads, advertises,

promotes, exchanges or distributes material in any electronic form
depictingchildren in obscene or indecent or sexually explicit manner or
c) cultivates, entices or induces children to online relationship with one or
morechildren for and on sexually explicit act or in a manner that may offend
areasonable adult on the computer resource or
d) facilitates abusing children online or
e) records in any electronic form own abuse or that of others pertaining tosexually
explicit act with children, shall be punished on first conviction with imprisonment
of either description for a term whichmay extend to five years and with a fine
which may extend to ten lakh rupees and in the event ofsecond or subsequent
conviction with imprisonment of either description for a term which may
extendto seven years and also with fine which may extend to ten lakh rupees:
Section 67-B is applicable and Sections 292/293/294, 500, 506&509 of Penal Code,
1860 are also applicable and the victim can file a criminal complaint in the nearest
Police Station where the said crime has been perpetrated or where he or she comes to
know about the perpetration. The accused shall be punished for first conviction with
imprisonment for aterm that may extend to five years and with fine which may be
extend to ten lakh rupees and in second conviction with imprisonment for a term that
may extend to seven years and with fine whichmay extend to ten lakh rupees.
US Federal Law8
Section 2256 of Title 18, United States Code, defines child pornography as any
visual depiction of sexually explicit conduct involving a minor (someone under 18
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years of age). Visual depictions include photographs, videos, digital or computer
generated images indistinguishable from an actual minor, and images created,
adapted, or modified, but appear to depict an identifiable, actual minor. Undeveloped
film, undeveloped videotape, and electronically stored data that can be converted into
a visual image of child pornography are also deemed illegal visual depictions under
federal law.
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Any violation of federal child pornography law is a serious crime, and convicted
offenders face severe statutory penalties. For example, a first time offender convicted
of producing child pornography under 18 U.S.C. § 2251, face fines and a statutory
minimum of 15 years to 30 years maximum in prison. A first time offender convicted
of transporting child pornography in interstate or foreign commerce under 18 U.S.C. §
2252, faces fines and a statutory minimum of 5 years to 20 years maximum in prison.
Convicted offenders may face harsher penalties if the offender has prior convictions or
if the child pornography offense occurred in aggravated situations defined as (i) the
images are violent, sadistic, or masochistic in nature, (ii) the minor was sexually
abused, or (iii) the offender has prior convictions for child sexual exploitation. In these
circumstances, a convicted offender may face up to life imprisonment.
It is important to note that an offender can be prosecuted under state child
pornography laws in addition to, or instead of, federal law.
Assault by Threat:
It refers to threatening a person with fear for their lives or lives of their families
through the use of a computer network i.e. E-mail, videos or phones.
II. CRIMES AGAINST PERSON'S PROPERTY
The second category of Cyber-crimes9 is that of Cybercrimes against all forms of
property. These crimes include computer vandalism (destruction of others’ property)
and transmission of harmful programmes.
A Mumbai-based upstart engineering company lost a say and much money in the
business when the rival company, an industry major, stole the technical database from
their computers with the help of a corporate cyber spy.
As there is rapid growth in the international trade where businesses and consumers
are increasingly using computers to create, transmit and to store information in the
electronic form instead of traditional paper documents. There are certain offences
which affects person's properties which are as follows10 :
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Intellectual Property Crimes:

Intellectual property consists of a bundle of rights. An unlawful act by which the
owner is deprived completely of or partially of his rights is an offence. The common
form of IPR violation may be said to be software piracy, infringement of copyright,
trademark, patents, designs and service mark violation, theft of computer source code,
etc.
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Cyber Squatting:
It means where two persons claim for the same Domain Name either by claiming that
they had registered the name first on by right of using it before the other or using
something similar to that previously.
Cyber Vandalism:
Vandalism means deliberately destroying or damaging property of another. Thus
cyber vandalism means destroying or damaging the data when a network service is
stopped or disrupted. It may include within its purview any kind of physical harm done
to the computer of any person. These acts may take the form of the theft of a
computer, some part of a computer or a peripheral attached to the computer.
Hacking Computer System:
Hacktivism attacks those included Famous Twitter, blogging platform by
unauthorized access/control over the computer. Due to the hacking activity there will
be loss of data as well as computer. Also research especially indicates that those
attacks were not mainly intended for financial gain too and to diminish the reputation
of particular person or company.
Transmitting Virus:
Viruses are programs that attach themselves to a computer or to a file and then
circulate themselves to other files and to other computers on a network. They usually
affect the data on a computer, either by altering or deleting it. Worm attacks plays
major role in affecting the computerize system of the individuals.
Cyber Trespass:
It means to access someone's computer without the right authorization of the
owner and does not disturb, alter, misuse, or damage data or system by using wireless
internet connection.
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Internet Time Thefts:

Basically, Internet time theft comes under hacking. It is the use by an unauthorized
person, of the Internet hours paid for by another person. The person who gets access
to someone else's ISP user ID and password, either by hacking or by gaining access to
it by illegal means, uses it to access the Internet without the other person's
knowledge. You can identify time theft if your Internet time has to be recharged often,
despite infrequent usage.
Indian Law:
Section 43 of the IT Act,11 relates to Penalty and Compensation for damage to
computer, computer system, etc
If any person without permission of the owner or any other person who is incharge
of acomputer, computer system or computer network12 —
a) accesses or secures access to such computer, computer system or computer
network orcomputer resource (ITAA2008)
b) downloads, copies or extracts any data, computer data base or information from
suchcomputer, computer system or computer network including information or
data held or stored in anyremovable storage medium;
c) introduces or causes to be introduced any computer contaminant or computer
virus intoany computer, computer system or computer network;
d) damages or causes to be damaged any computer, computer system or computer
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network, data, computer data base or any other programmes residing in such
computer, computer system orcomputer network;
e) disrupts or causes disruption of any computer, computer system or computer
network;
f) denies or causes the denial of access to any person authorised to access any
computer, computer system or computer network by any means;
g) provides any assistance to any person to facilitate access to a computer,
computer systemor computer network in
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contravention of the provisions of this Act, rules or regulations madethereunder,
h) charges the services availed of by a person to the account of another person by

tamperingwith or manipulating any computer, computer system, or computer
network,
i) destroys, deletes or alters any information residing in a computer resource or
diminishes itsvalue or utility or affects it injuriously by any means (Inserted vide
ITAA-2008)
j) Steals, conceals, destroys or alters or causes any person to steal, conceal, destroy
or alterany computer source code used for a computer resource with an intention
to cause damage, (Insertedvide ITAA 2008)he shall be liable to pay damages by
way of compensation not exceeding one crore rupees tothe person so affected,
(change vide ITAA 2008)
Explanation - for the purposes of this section —
a. “Computer Contaminant” means any set of computer instructions that are
designed —
i. to modify, destroy, record, transmit data or programme residing within a
computer, computer system or computer network; or
ii. by any means to usurp the normal operation of the computer,
computersystem, or computer network;
b. “Computer Database” means a representation of information, knowledge, facts,
concepts or instructions in text, image, audio, video that are being prepared or
havebeen prepared in a formalised manner or have been produced by a
computer, computer system or computer network and are intended for use in a
computer, computer system or computer network;
c. “Computer Virus” means any computer instruction, information, data or
programme that destroys, damages, degrades or adversely affects the
performance of a computerresource or attaches itself to another computer
resource and operates when a programme, data or instruction is executed or
some other event takes place in thatcomputer resource;
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d. “Damage” means to destroy, alter, delete, add, modify or re arrange any

computerresource by any means.
e. “Computer Source code” means the listing of programmes, computer commands,
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design and layout and programme analysis of computer resource in any form
(Inserted vide ITAA 2008)
III. CYBERCRIMES AGAINST GOVERNMENT
The third category of Cyber-crimes relates to Cybercrimes against Government13 .
Cyber terrorism is one distinct kind of crime in this category. The growth of internet
has shown that the medium of Cyberspace is being used by individuals and groups to
threaten the international governments as also to terrorize the citizens of a country.
This crime manifests itself into terrorism when an individual “cracks” into a
government or military maintained website. The Parliament attack in Delhi and the
recent Mumbai attack fall under this category.
There are certain offences done by group of persons intending to threaten the
international governments by using internet facilities14 . It includes:
a) Cyber Terrorism:
Cyber terrorism is a major burning issue in the domestic as well as global concern.
The common form of these terrorist attacks on the Internet is by distributed denial of
service attacks, hate websites and hate e-mails, attacks on sensitive computer
networks etc. Cyber terrorism activities endanger the sovereignty and integrity of the
nation.
b) Cyber Warfare:
It refers to politically motivated hacking to conduct sabotage and espionage. It is a
form of information warfare sometimes seen as analogous to conventional warfare
although this analogy is controversial for both its accuracy and its political motivation.
c) Distribution of pirated software:
It means distributing pirated software from one computer to another intending to
destroy the data and official records of the government.
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d) Possession of Unauthorized Information:

It is very easy to access any information by the terrorists with the aid of internet
and to possess that information for political, religious, social, ideological objectives.
IV. CYBERCRIMES AGAINST SOCIETY AT LARGE
An unlawful act done with the intention of causing harm to the cyberspace will
affect large number of persons15 . These offences include:
i) Child Pornography:
It involves the use of computer networks to create, distribute, or access materials
that sexually exploit underage children. It also includes activities concerning indecent
exposure and obscenity.
ii) Cyber Trafficking:
It may be trafficking in drugs, human beings, arms weapons etc. which affects
large number of persons. Trafficking in the cyberspace is also a gravest crime.
iii) Online Gambling:
Online fraud and cheating is one of the most lucrative businesses that are growing
today in the cyber space. There are many cases that have come to light are those
pertaining to credit card crimes, contractual crimes, offering jobs, etc.
iv) Financial Crimes:
This type of offence is common as there is rapid growth in the users of networking
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sites and phone networking where culprit will try to attack by sending bogus mails or
messages through internet. Ex: Using credit cards by obtaining password illegally.
v) Forgery:
It means to deceive large number of persons by sending threatening mails as
online business transactions are becoming the habitual need of today's life style.
Computers, printers and scanners are used to forge counterfeit currency notes,
postage and revenue stamps, mark sheets etc. These are made using computers, and
high quality scanners and printers.
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Cyber Torts:
Cyber interests of the netizen are also required to be protected by extending the
principles of liability under torts and adding new pigeon holes to the expanding tree of
the law of torts. As economic torts have come to stay as a new pigeon hole, the law
may very soon have to provide for cyber tort or internet to protect the new interests of
data consumers or software beneficiaries. Cybersquatting, cyber hawking, cyber
stalking etc. have to be taken care of.
With new dimensions of this new medium, possible violations like cyber porn or
cyber obscenity torts, misrepresentation on internet, passing off, copyright violations
and cyber defamation increase the significance of the law of torts. Electronic transfer
of money from accounts by cyber cheating, developing a computer programme virus to
crash valuable data of corporations or individuals are some of the new crimes that are
required to be defined and make wrong doers accountable for the payment of damages
also.
Organizations and governments across the globe are starting to become aware of
how serious and real the threats of cybercrimes and torts are.
These threats are all around us and are now omnipresent because our current
society tends to be connected constantly. This interconnectivity often allows these
cyber threats to go undetected and can be as simple as stealing one's social security
number to shutting down the majority of a power grid in order to attack foreign
shores. We must take steps to inform ourselves of these torts and their legal
consequences. Also, the governments and lead security organizations of the world
need to increase awareness and security vulnerabilities against cyber threats.
Any real world crime that can be virtually monitored and unleashed at a person
through the Internet is called a cyber-crime. Stealing someone's identity, performing
terrorism, obtaining electronic property in an illegal matter (i.e. piracy), setting up
dates to meet for illegal transactions, pretending to be someone/something that is
trustworthy to obtain information (fraud), and sending mass amounts of e-mails
containing harmful or illegal data (spam) are all considered to be cyber-crimes.
Knowing what constitutes as a cyber-crime and a legal act on the Internet is crucial
information to all Internet users around the world seeing how there is a common
misconception that everything you do online is anonymous.
This new phenomenon of crime is proving to be difficult in locating who is
responsible and the punishment that shall be meted out to make-up for
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the damages caused. Due to the sudden spurt in cyber-crimes, new provisions are
incorporated to maintain a sense of security in the Internet. There have also been
cases that have set forth precedents which have made it easier for rulings to be made
in this unique way of committing a crime.
For example, the Identity Theft and Assumption Deterrence Act was created and
updated to consider the fraudulent creation, use, transfer, theft, criminal use of
information and provide a sentence of imprisonment for any crimes relating to violence
or drug trafficking.
A tort is a negligent or intentional act is done by someone that injures someone
else in some way. Cyber Torts are simply a tort done over cyberspace. Cyber torts are
very important because they are on the rise and are still crimes that can have serious
effects on society. Everyone should be exposed to the dangers and damages caused by
cyber torts because technology is an important aspect in everyone's lives, especially
now.
Some examples of cyber torts include trespass to chattels, conversion, cyber
stalking/harassment, cyber breach of privacy, cyber obscenity and cyber defamation.
Legislation in the United States of America
A trespass to a chattel (personal possession) may be committed intentionally with a
chattel in the possession of another16 . One of the important ingredients of chattel
trespass is that there should be tangible interference with the property. Different
judiciaries have different views on the term “tangible interference”. Indirect touching
or even entry may constitute to tangible interference. Some courts even said to the
extent that smoke, sound waves, electricity and gas may also satisfy the condition of
“tangible interference”. The law of any given place must take into account the special
characteristics of the space it regulates and the types of persons, places and things
found there. Indian jurisprudence reflects its unique historical experience; the law of
Cyberspace will reflect its special character, which differs from anything found in the
physical world. The law of the Net must be prepared to deal with persons who
demonstrate themselves by means of a particular ID, user account, or domain name.
New perspectives on these ideas may develop in the course of time.
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Law defined as a thoughtful group conversation about core values, will persist. But it
cannot and should not be the same law as that applicable to physically, geographically
defined territories.
Trespass to chattels includes all those spyware, spam emails, and scrapers you see
some of the time.
The definition of the trespass to chattels is “intermeddling with a chattel in
possession of another which results in (a) dispossession of the chattel, (b) deprivation
of the use of the chattel for a long period of time, (c) impairment of the condition,
quality, usefulness of the chattel or (d) harm to the person of the possessor or persons
or things in which he has a legally protected interest.” (“Trespass to Chattels”)
Traditionally trespass to chattels has been referred to as a tort that involves
tangibles, however due to the major growth of the internet since the early 1990s, this
tort has been expanded further into cyberspace. The reason for this is to help protect
internet users from some of the major problems due to the growth of the internet
including spam emails, spider and bots, and spyware. An example of one of the first
cases that extended trespass to chattels into cyberspace was CompuServe, Inc. v.
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Cyber Promotions, Inc17 . In this case the defendant, Cyber Promotions, business was
to send unsolicited email advertisements to as many users on the internet as possible.
It turns out that most of the users they do send their emails to happen to be
subscribers of CompuServe, the plaintiff, because Cyber Promotions was using
CompuServe's computer system.
Obviously the plaintiff did not like this because the defendant's emails were making
their subscribers angry as well as slowing down their system due to the mass amount
of unsolicited email they were sending. The plaintiff warned the defendant many times
to stop emailing their clients, however after the defendants kept emailing their users,
the plaintiff decided to sustain an action for trespass to chattels. The plaintiff claimed
that they suffered injuries other than just the physical injury of the defendant's emails
on their system including loss of subscribers. In conclusion, the court decided that the
preliminary injunction that the plaintiff requested was appropriate due to the plaintiff's
ability to show that the defendants' trespass into their computer system harmed their
business reputation and goodwill. (Graham)
The definition of conversion is “the unlawful turning or applying the personal goods
of another to the use of the taker, or of some other person than the owner; or the
unlawful destroying or altering their nature.”
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(“Conversion”) The elements of conversion in which people can sue are: “the plaintiff
has clear legal ownership or right to possession of the property at the time of
conversion; the defendant's conversion by a wrongful act or disposition of plaintiff's
property rights; and there are damages resulting from the conversion.”
Conversion involves negligent or intentional stealing of other peoples domain names

online which is also called as cyber-squatting and Typo-squatting. Cyber
stalking/harassment happens a lot in social networks like Facebook and Myspace
where they have millions and millions of users. And cyber defamation also can happen
a lot on social networks and forums. As you can see, these types of cyber torts are
serious issues that happen probably everyday that can result in serious harm to the
public including us.
Similar to trespass to chattels, before conversion was only seen as regarding
tangible property but has adapted to include cyberspace due to the increase of issues
on the internet. Some of those issues that qualify as conversion include domain names
and data theft. An example of a case looking at a domain name being “converted” is
the Kremenv. Cohen case18 . In this case the plaintiff, Gary Kremen, asked Network
Solutions to create a domain name sex.com in 1994. However, even though he
registered the domain name, he was not using it at all because he focused all of his
attention on another site he created.
The defendant, Stephen Cohen, saw this and thought that the site had enormous
potential. So the defendant forged a letter from the plaintiffs' business, Online
Classifieds, stating that, ‘the company had been “forced to dismiss Mr. Kremen,” but
“never got around to changing our administrative contact with the internet registration
[sic] and now our Board of directors has decided to abandon the domain name
sex.com.’ (Kozinski) The defendant was granted the transfer of the domain name and
went on to make sex.com an online porn empire. When the plaintiff found out about
this, he sued the defendant on several claims including conversion. At first the court
did agree that sex.com was owned by the plaintiff, however conversion could not be
applied because domain names are an intangible property. The plaintiff then appealed
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and the court eventually concluded that conversion can be applied to domain names.
(Kozinski)
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Cyber Stalking:
Cyber stalking occurs when a person is followed and pursued online. The privacy of
the person is invaded. It is a form of harassment, and can disrupt the life of the victim
leaving them feeling afraid and threatened. When harassment and stalking occurs over
the internet, it is known as cyber stalking. It usually occurs with women or children,
who are stalked by adult predators or pedophiles. It is believed that seventy five
percent of the victims are women, but sometimes men are also stalked. A cyber
stalker does not have to leave home to find or harass his targets, and has no fear of
physical violence, since he believes he cannot be physically touched in cyberspace. He
could be anyone, ranging from a total stranger to a relative. Basically the victims are
new and inexperienced with the rules of internet safety. Sometimes the stalkers
include disgruntled employees. Such stalkers may be stalking to take revenge as they
believe that they have been victimized.
Indian Law:
Section 66E of IT Act19 deals with the punishment for violation of privacy. Whoever,
intentionally or knowingly captures, publishes or transmits the image of a private area
of any person without his or her consent, under circumstances violating the privacy of
that person, shall be punished with imprisonment which may extend to three years or
with fine not exceeding two lakh rupees, or with both.
Explanation. - For the purposes of this section—
a) —transmit means to electronically send a visual image with the intent that it be
viewed by a person or persons;
b) —capture, with respect to an image, means to videotape, photograph, film or
record by any means;
c) —private area means the naked or undergarment clad genitals, pubic area,
buttocks or female breast;
d) —publishes means reproduction in the printed or electronic form and making it
available for public;
e) —under circumstances violating privacy means circumstances in which a person
can have a reasonable expectation that—
Page: 110
I. he or she could disrobe in privacy, without being concerned that an image of

his private area was being captured; or
II. any part of his or her private area would not be visible to the public,
regardless of whether that person is in a public or private place.
Cyber Breach of Privacy:
With the advent of multi-channel televisions all over the world, and fast spreading
internet network, the privacy of an ordinary man is increasingly under threat. Breach
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-
of privacy is a kind of cyber tort which affects a common man.
Privacy to a large extent signifies the right to be alone. Judge Brandeis used the
phrase ‘the right to be left alone’ in his dissent in Olmstead v. United States,20 the first
of the wire-tapping cases heard by the Supreme Court of USA.
Cyber stalking may be a direct ‘corollary’ to violation of privacy laws on the
Internet. There are several situations one may come across when one deals with
privacy laws on the Internet. The following may be the major areas of concern:
(a) Interception via wire-tapping the phone line on the sender's end. Emailing may,
thus, be conveniently intercepted in such a manner.
(b) Disclosure of contents.
(c) Disclosure of essential data while registering on to a particular domain such as a
chatting site, where precautions and registration policies for the surfer are not
clearly outlined.
Section 71 of the Information Technology Act 2000 prohibits interception of e-mail
during transit. Similarly, reading e-mails during storage on a computer system is also
prohibited by the aforesaid section read with s 43 of the Act. The recipient of the e-
mail is generally free to share the mailing material with anyone, provided it is subject
to legal implications of confidentiality.
Page: 111
Defamation:
Cyber or online defamation is considered to be as, if not more harmful than
defamation in the form of libel and slander in the brick and mortar, physical world. In
some cases, the effects of online defamation could be exponentially worse than an
offline incident due to the global nature of the Internet and the fact that the
statements can be accessed by virtually anyone. In addition to this, the issue of
anonymity online raises even more concern when dealing with defamation because the
author or origin of the statements may be very difficult to trace depending on the
medium.
The case involving 13 year old Megan Meier21 shows the severity of cyber bullying or
cyber harassment. Basically, Megan befriended “Josh”, supposedly a hot 16 year old
boy on Myspace, and was sending messages back and forth for a while. Then “Josh”
started saying really bad things about Megan, which made her depressed and she
eventually hanged herself. Another case involves a Florida woman suing a Louisiana
woman over messages created by her accusing the Florida woman of being some
horrible things. The Florida woman was awarded $11.3 million in the defamation
lawsuit (Parker).
The tort of cyber defamation is considered to be the act of defaming, insulting,
offending or otherwise causing harm through false statements pertaining to an
individual in cyberspace. This is commonly done through the Internet via websites,
blogs, forums, emails and instant messaging, chat rooms and now in the social
networking sphere.
Defamation law in general describes the tort as “the issuance of a false statement
about another person, which causes that person to suffer harm” (Larson) where libel is
the written form and slander is spoken. Libel is typically the form addressed with cyber
defamation because the Internet essentially receives the same protections as print and
published media. The other elements applied to defamation include:
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
The unprivileged publication of the statement to a third party
If the defamatory matter is of public concern, fault amounts at least to negligence
on the part of the publisher.
Perceivable damage to the plaintiff
Page: 112
Along with the core elements of defamation, the burden of proof is placed on the
plaintiff in a case, damages are usually awarded monetarily and in the United States,
truth is an “absolute defense” (Larson).
The advent of the Communications Decency Act of 1996, especially Section 230,
provided new legislation targeted at the Internet and issued immunity from liability for
“interactive computer services” and their users. In order to be considered immune in a
case involving the CDA, courts use a three part test:
The defendant must be a “provider or user” of an “interactive computer service.”
The cause of action asserted by the plaintiff must “treat” the defendant “as the
publisher or speaker” of the harmful information at issue.
The information must be “provided by another information content provider,” i.e.,
the defendant must not be the “information content provider” of the harmful
information at issue. (CDA)
One early application of Section 230 of the CDA was in an early Internet case
involving AOL, Matt Drudge of the Drudge Report and an assistant to Bill Clinton in the
White House, Sidney Blumenthal. Matt Drudge was an early Internet blogger who
often produced tabloid and rumor stories about public figures in Washington. Drudge
was sued when he posted false statements about Blumenthal being involved in marital
disputes and abuse. Blumenthal followed this up with a $30 million lawsuit against
Drudge and his employer America Online (AOL) claiming libel and serious harm to his
reputation. Drudge removed the story from his website but the court did not dismiss
the case. The issue here is that AOL asserted they were granted immunity under
Section 230 of the CDA but the court had to consider the fact that Drudge was their
employee and could be considered a publisher or distributor and therefore not immune
to liability. After debating, the court ultimately ruled that AOL was in fact immune
from liability and Blumenthal22 settled out of court.
Due to the expansiveness of the Internet fora, defamation is quite possible. The
ingredients of defamation are not basically different from those of ordinary tort of
defamation, except for the penetrating reach and uncontrollable speed in the case of
the former.
Page: 113
Cyber Obscenity:
Cyber space offers a very wide range of pornography, and makes children and
women vulnerable of trafficking. This also includes child pornography (which has
already been discussed) and sexting and internet rape. Defamation and obscenity
through cyber space have elevated these torts to an international level, and such
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
actions can be multi-national and multi-targeted.
Conclusion:
Basically the difference between cyber tort and cybercrime can be compared with
that of a tort and a crime. Thus a tort is substantially and conceptually different from a
crime. A tort is an infringement or violation of the private or civil rights belonging to
individuals, whereas a crime is a breach of public rights and duties which affect the
whole community and so is the case in a cyber tort and a cybercrime except for the
difference in medium adopted to commit the crime. According to Blackstone: “Wrongs
are divisible into two sorts or species, Private wrongs and Public wrongs”. In tort the
wrongdoer has to compensate the aggrieved or injured party and in case of a crime, he
is punished by the State in the interest of society. In tort the action is brought by the
injured party and whereas in crime the proceedings are carried out in the name of the
State and the guilty person is punished by the State. The compensation awarded in
tort is for unliquidated damages. The award of compensation in a criminal prosecution
is ancillary to the primary object of punishing the offender but in a tort it is essentially
the main purpose. Only exemplary damages allowed in atort action are punitive in
nature and one of the reasons for restricting the categories of cases in which they can
be awarded is that they import a criminal element in civil law without proper
safeguards.23
The same set of circumstances will, in fact, from one point of view, constitute a tort,
while, from another point of view, amount to a crime. Whereas the same wrong is both
a crime and a tort (e.g., assault, defamation, theft, negligence, mischief to property)
its two aspects are not identical, its definition as a tort and as a crime may differ;
what is a defence to the tort may not be so in the crime and the object and result of a
prosecution and of an action in tort are different.
———
*
Head, Faculty of Law; The ICFAI University, Jaipur
1
Ian J. Llyod& Moira J. Simpson, “Computer Crime” in Chris Reed (Ed.), Computer Law (3rd Edn. Universal Law
Publishing) 243.
2 http://www.encyclopedia.com/science-and-technology/computers-and-electrical-engineering/computers-and-
computing/computer-crime
3
[1932] AC 562
4 http://www.legalindia.com/cyber-crimes-and-the-law/
5 (Inserted Vide ITA 2008)
6
Talat Fatima, “Cyber Crimes” (Eastern Book Company 2011)209.
7 The IT (Amendment) Act, 2008(10 of 2009)
8
Talat Fatima, “Cyber Crimes” (Eastern Book Company 2011)206
9
http://www.legalindia.com/cyber-crimes-and-the-law/
10 Pardesi Jigisha. (2007) “Emerging Trends in Information Technology”, Nirali Prakashan, Pune
11 The IT (Amendment) Act, 2008(10 of 2009).
12
Talat Fatima, “Cyber Crimes” (Eastern Book Company 2011) 209.
13
14 Singh Justice Yatindra (2010) “Cyber Laws”, Universal Law Publication, Delhi
15
16 http://www.legalservicesindia.com/article/article/cyber-torts-1134-1.html
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
17 962 F. Supp. 1015, 1997 U.S. Dist.
18
337 F.3d 1024 (9th Cir.2003)
19
(Inserted Vide ITA 2008)
20 277 US 438 (1927), referred from ‘The Lawyers Collective’, July 2000, p 25.
21
U.S. v. Drew, 259 F.R.D. 449 (C.D. Cal.2009)
22 Sidney Blumenthal and Jacqueline Blumenthal v. Matt Drudge and America Online, Inc., U.S. District Court,
District of Columbia, Case Number, 97 CV-1968.
23
Rookes v. Barnard, (1964) AC 1129 : (1964) 1 AH ER 367; Cassell Co. Ltd. v. Broome, (1972) ac 1027 :
(1972) 1 All ER 801.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

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Cyber Crimes and Cyber Torts: A Comparative and Analytical Perspective

CYBER CRIMES AND CYBER TORTS: A COMPARATIVE AND ANALYTICAL PERSPECTIVE

❖ Any incident associated with computer technology in which a victim suffered or

b) creates text or digital images, collects, seeks, browses, downloads, advertises,

Intellectual Property Crimes:

Internet Time Thefts:

contravention of the provisions of this Act, rules or regulations madethereunder,

h) charges the services availed of by a person to the account of another person by

d. “Damage” means to destroy, alter, delete, add, modify or re arrange any

d) Possession of Unauthorized Information:

Conversion involves negligent or intentional stealing of other peoples domain names

I. he or she could disrobe in privacy, without being concerned that an image of

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