Cyber Law Notes

08/01/2024
Cyber law – Product of technology, subdomain of technology and law interface; Netizen:
Citizen of internet
Research Q./ Theme of Subject: Whether technology be regulated or not? Should it be
regulated by law? What extent? What consequence?
Examples for Cyber Law:
1) Deepfake Regulation: IPC (Defamation) and IT Act
2) Matrimonial Websites: Fake profiles

I. Barlow Text – A Declaration of Independence of Cyberspace, 1996

As per Barlow, government in all jurisdiction has no sovereignty over internet (You have no
sovereignty where we gather). Barlow promotes anarchy.
India should be concerned if Bangladesh commits cyber crime against UK because tomorrow
it may be committed against India
As per Barlow, no regulation should be there by government from the physical world
(Assumption: cyber world completely separated from physical world)
Counter opinion to Barlow philosophy - No, cyber world has ramifications on the real world
– It is problematic – as practically not possible to implement- it is only utopian- there has to
be a deterrent factor- punishment/ laws) (Example of exam with no invigilators)
Obscene material advantage (watch in pleasure time) and disadvantage (affect youth)
Backdrop of Barlow’s text – Before he wrote this book, an act called the Distribution of
Obscene Material Act was enacted. In response to this, he wrote this. He thought this would
retard the growth of internet. Hence, he wrote this text.
As per Barlow, government has no mechanism to regulate cyberspace (You have no moral
right to rule us nor do you possess any methods of enforcement). The morality aspect comes
from social contract (it's when a group of people agree to give up certain rights and accept a
central authority in order to protect their other rights)
Issue in Methods of enforcement: Example is pornography and piracy. More specific
example: I LOVE YOU virus affected companies in USA but originated in Philippines.
Philippine’s hacker was identified. Hacking not a crime in Philippines but USA wanted to
extradite. For extradition, act should be crime in both states. No extradition. Hence, difficulty
in methods of enforcement
Free speech argument (Barlow’s favor):
 Prime objective of internet is to promote free speech and public interest
 So very structure of internet will be affected is restricted by laws
 So no regulation should be there that restricts it, social contract doesn’t extend to this
 Opinion: Balance the interests, as is the purpose of law itself’
Argument for government: The offline personalities of humans create online personalities
and as government have law to regulate offline personality (the people), then it extends to
online ones and thereby govt. can regulate cyberspace.
Initially hackers were a respected community. They hack to check your security. The
question arises that when end is approved, can means automatically be approved?
10/01/2024
Internet Definition: Globally inter-connected network system that facilitates
communication and data services through a vast collection of private, public, business,
academic, and government networks.
Barlow Text Contd.
More Barlow arguments: (From the text itself)
 “Governments derive power from consent”: We didn’t give consent (in social
contract) for cyber world, only physical world (cyber world was also not anticipated,
hence not part of expectations, no automatic extension of validity/legitimacy as no
CONSENT for cyber world, only physical world) [RELATED TO SOCIAL
CONTRACT ASPECT]
 “Cyberspace doesn’t lie within your borders”
 “It grows itself through our collective actions”
 “You do not know our culture, ethics and unwritten codes”: Advocated that culture
and ethics of internet different from physical world. This expectation creates a huge
responsibility on users to behave extremely carefully and diligently on internet.
 “Where are there are wrongs, we will identify them and address them by our
means.” He acknowledged that harms/crimes will take place but advocated a form of
self-regulation by users of internet. Hence, recognizes the instances wherein users are
affected and that there can be crimes, but for that he advocates that government is not
allowed to interfere but users will conduct self-regulation. He wanted
MINIMALISTIC REGULATION.
Issue: Damaging computer through virus, civil judge might not know how virus will affect
computer. Resolution: Create separate forum, adjudicating authority – Now presiding officer
might not have background in technology, no doesn’t resolve the issue.

 “All may enter without privilege or prejudice”: No form of discrimination in

accessing internet (no education, race, etc. required), only connectivity required.
Analogy is that any democratic setup is internet. [ Sir observation: However, rural
internet connectivity is based on government support, all IT companies work on tele-
density; until strong measure is taken, rural areas suffer.] [ 2 nd observation: Situation
in Jammu and Kashmir, they blocked internet access on grounds of national interest]
Hence, these situations show why govt. shouldn’t have power in regulating access to
internet. [ This free access facilitates free speech]
 Where anyone, anywhere may express his or her beliefs.: No form of censorship, as
there is anonymity, I can criticize/say anything which I will not say in front of person
 in real world. [For eg: Instagram comments section] [Observation: End-to-end
encryption came as govt. tried to know origin- which is against anonymity – can’t
express real feelings] [Internet eliminated middlemen] {This anonymity and no form
of censorship facilitates free speech]
 “Your legal concepts of property, expression, identity do not apply to us”: Concept of
personality in physical world and cyber world completely different. Person can create
fake profiles. Concept of identity theft, this makes internet concepts different from
theft in real world [Eg: in IPC, it requires movable property for theft]. Impersonation
is easier in cyber world. Concept of data protection different in internet. [Certain areas
wherein IT Rules doesn’t apply: it shows that they are conceptually very different]
15/01/2024
Barlow Text Contd.
Given that the primary objective of internet is free speech, certain features in internet that
facilitates Free Speech are: (Regulation against free speech: Jammu and Kashmir’s internet
suspension)
1) Anonymity
2) Access
3) No censorship
So, if regulation is there, these essential core features should not be affected. They are a form
of Laxman Rekha. As per Barlow, promoting free speech is unique to internet and is an
integral part of internet. It is part of internet’s culture.
Yahoo v/s LICRA (2000): Selling of Nazi’s memorabilia through Yahoo’s platform
 This case-law shows how regulation affected free speech (ACCESS and
CENSORSHIP) and thereby justified Barlow’s fears.
 LICRA complained that Yahoo! were allowing their online auction service to be used
for the sale of memorabilia from the Nazi period.
 The High Court of Paris ordered Yahoo! USA to take all measures to dissuade and
prevent access to auctions for content supporting Nazism and Nazi memorabilia.
[To prevent access: Banning the same (This shows why obscenity law is not working
as ground reality and court order aren’t syncing)] (Barlow only wanted disclaimer and
not banning, similar to that no invigilation in exam example)
 The court ordered Yahoo! France to warn users that should Yahoo’s search results
included content prohibited under French law, they shall refrain from accessing such
content to avoid incurring legal sanctions
 Can the High Courts of France give an order to Yahoo USA: If we analyze from
jurisdictional perspective, then order should only be targeted to Yahoo France. USA
Court can obviously state that France order doesn’t apply to it.
[The moment you import the culture of jurisdiction of physical world in cyber world,
it creates a problem. However, if the culture that there is only one network connecting
users worldwide, then no problem.] [In case of defamation, the cyber victim wants to
decide the forum, he will choose which gives more compensation, and ignore the
concept of territorial jurisdiction.] [In terms of enforcement of foreign orders, you’ll
be dependent on local ISPs]
Analyzing need to protect minority interest from internet onslaught.
Lawrence Lessig’s view: Computer Code regulates in the same way as the law regulates.
Internet can be regulated via higher technology (West develops higher technology, so his
view: technological problem will be solved via technological solution. Internet solved by
superior technological solution)
Software + Hardware: Lessig’s Code
For Lessig, antivirus software will be more useful than the law relating to spreading of
piracy. In the realm of cyberworld, if we go by Lessig, you are always subordinate to U.S.A
Jurisdiction/policy.
24/01/2024
YouTube – Content ID - Section 79 of IT Act: Safe Harbour Provision to protect
intermediaries; Section 79 also has due diligence element: this has both qualitative and
quantitative element; now there is distinction b/w significant and non-significant social media
intermediary.
Technology of copying vs Power of law to stop illegal copying: If they are equivalent, that is
desired level/utopia.
Software license: How do we know that ingredients of license agreement are at par with fair
use policy?
Market as a regulator
Worldwide Web Consortium Significance: Main international standards organization for the
World Wide Web. Founded in 1994 and led by Tim Berners-Lee, the consortium is made up
of member organizations that maintain full-time staff working together in the development of
standards for the World Wide Web
 ICANN: The Internet Corporation for Assigned Names and Numbers

 Responsible for Allocation Domain names

 Established in 1998 as a non-profit organisation under US Department of Commerce.
In 2005, UN and EU asked US govt to relinquish ownership of ICANN so it can be
empowered by a more global voice as Internet is no longer confined within USA and
so it became independent body. Increased autonomy for ICANN- questions about
accountability and transparency
 If ICANN belongs to World Community, who will fund it?
 ICANN Report: The ICANN has consensus driven policy and bottom-up participation
in multi-stakeholder model.
Amazon’s Domain Name Case: Argument for amazon: .amazon domain is a generic top-
level domains” like books.amazon
Objections from South American countries – “the name Amazon is part of cultural heritage
and identity of Amazon countries.”
Its use as a first level domain name shall be reserved for promotion of interests and rights of
Amazon people.
Demand of Amazon vs Identity of South American Countries
Check whether composition of ICANN reflects Amazon identity
 Lessig’s Law of the Horse Article (Google Classroom):

1) Zoning Speech: Porn example. Difficult to do self-authentication in digital space -

how to share authenticating document/ID Proof on porn-websites- so now way
establish adults are really adults
2) Protected Privacy - Cookies Policy [Tracking individual’s data (data mining)]
30/01/2024
Jurisdictional Conflict – Global network vs territorial law (Ex: Yahoo vs LICRA case);
common issue in every situation. Further, there is uncertainty of legal system.
Questions to ponder on: Can court entertain dispute from outside the territory?

 Can IPC extend beyond India – Yes, if committed by an Indian national beyond
Indian territory
 Consumer protection Act jurisdiction clause – wherever the cause of action has taken
place
 Copyright Jurisdiction Clause – where the plaintiff resides or where the infringement
has occurred

 IT Act, 2000 Jurisdiction Clause– Section 1(2):

“Section 1(2) It shall extend to the whole of India and, save as otherwise
provided in this Act, it applies also to any offence or contravention thereunder
committed outside India by any person.”
Emphasis on outside India by any person –
1. Advantage: Not limited to territorial borders; allows for wider coverage; it is global
network and all of us have obligation – promotion of international cooperation –
victim protection – Global reach – enhanced deterrence
2. Disadvantage: Overlapping of laws with other countries - Legitimacy question -
Sovereignty Concerns - interference in the internal affairs of other countries
Chilling Effect of such a Overarching Clause as per Electronic Frontier Foundation :
“A foreign court imposing significant daily fines on US based speech that is perfectly lawful
in US can create chilling effect on US speaker - Chilling effect would be acute for many for
whom internet is an indispensable means of reaching an audience but lack resources to
participate in overseas legal proceedings”
Jurisdiction Kinds (These are all justifications for global law):
1. There can be Jurisdiction Based on Impact
Illustrated by Yahoo case –– if you have a duty/obligation to protect culture, then jurisdiction
based on impact – no question of commercial activity arises – So example: if something is
indecent for Indian culture, then jurisdiction can be claimed - even Article 19(2) supports this
indecency argument (Article 19: Protection of certain rights regarding freedom of speech,
etc.)
‘Article 19(2) of Indian Constitution: Nothing in sub-clause (a) of clause (1) shall
affect the operation of any existing law, or prevent the State from making any law,
in so far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with Foreign States, public order,
decency or morality or in relation to contempt of court, defamation or incitement
to an offence”
2. Long Arm Statute
The long arm statute is a statute allowing for the assertion of personal jurisdiction over a
non-resident defendant who has some connection (as ownership or use of property,
transaction of business, or commission of a tort) with the state
A long-arm statute is a statute that allows for a court to obtain personal jurisdiction over an
out-of-state defendant on the basis of certain acts committed by an out-of-state defendant,
provided that the defendant has a sufficient connection with the state.
3. Long Arm Statute Requires Minimum Contact:
Typically a long-arm statute will grant a court jurisdiction over a non-resident if the resident
has minimum contact within the court's jurisdiction.
Example of Minimum Contact: Section 75(2) of IT Act, 2000 – “involves a computer,
computer system or computer network located in India”
“Section 75. Act to apply for offence or contravention committed outside India.-

(1)Subject to the provisions of sub-section (2), the provisions of this Act shall apply
also to any offence or contravention committed outside India by any person
irrespective of his nationality.
(2)For the purposes of sub-section (1), this Act shall apply to an offence or
contravention committed outside India by any person if the act or conduct
constituting the offence or contravention involves a computer, computer system or
computer network located in India.
More realistic approach is Section 75(2) of IT Act, 2000
31/01/2024
Principle of Cyber law Extra- Territorial Jurisdiction - This legal principle allows a
nation to extend its jurisdiction beyond its geographical boundaries, asserting authority over
individuals or entities involved in cybercrimes that impact its citizens or interests, even if
the activities occur in another country.
How can you justify jurisdiction over non-resident defendant (Long arm statute) – Impacts
your countries, then you can use it to justify
IT Act, 2000 covers both criminal law and civil law under its ambit as the Act uses both
“offence” and “contravention.”

 Offence - Criminal Law Jurisdiction

 Contravention- Civil Law Jurisdiction

There are several means of satisfying Minimum Contact – that is why statute is silent as to
what is Minimum Contact- It can be payment, uploading, downloading, etc.
Forum Shopping in cyber cases – The country which gives you maximum compensation, the
victim will select that. If you collect compensation from Country A, then res judicata will
apply and you can’t go to second forum Country B to again collect compensation.
 Purposeful Availing Service:
In cases of non-resident defendant to assert jurisdiction, apart from Minimum Contact,
purposeful availing of service of forum state can attract jurisdiction. Now, how do you avail
services of Forum State: (even if one point is satisfied, then you can justify; further all points
are interlinked)
i. Accessible/Blocking a country: Now, you make a website and block Pakistan’s
access to it, so no Pakistan as a forum and it cannot assert jurisdiction. The defendant
will try to argue that it hasn’t been accessed yet.
ii. No of Visitors: This is determining factor to see whether you have availed service or
not. No minimum threshold
iii. No of members (blocking membership from one country): Registered users is
another step to justify that you have availed service of forum state.
iv. No of sales
v. Delivery of services: Whether product has been delivered to the forum state

 World-Wide Volkswagen Corp. v. Woodson, 1980 US

The Main Question – When a car manufacturer makes a car which can travel different states -
do they voluntarily surrender to every jurisdiction of every state where car moves?
Question in this case - Whether Audi has surrendered to jurisdiction of every state where the
car moves – Whether Audi had outlet in Oklahoma -
Forum Question - Place where accident took place or where the car was registered?
Did Audi have Reasonable Foreseeability of jurisdiction of forum state based on conduct
and connection with the forum state? No,