Unit-III

Cyber Crimes 'and Global Response: Global Perspective, Country

wise Legal Response, Country wise Analysis.
Cyber Crimes and Indian Response: Introduction, The Indian
Information Technology Act 2000,
Preamble & Coverage, Nature of Offences and Penalties,
Miscellaneous and Subsidiary Provisions Certain Shortcomings,
Future Prospects and Needs.
 Global Perspective
• One of the most important distinctive features of cyber crime is that
its impact is much wider than the traditional crime.
• Impact of cyber crime is unbounded, any effort made at national
level have to meet international coverage for the sake of effective
containment of cyber crimes.
• A country victim of any kind of latest cyber crime shall have the
opportunity to intimate other countries in time so that it may plan its
defence well in advance.
Countrywise Legal Response:
For example, unsolicited calls by telemarketers and others are
supposed to be an infringement upon the right of privacy and liberty
of a person, but no provision for such act is available under the
Indian IT Act and rules. The U.S.A., however, have im Flemented a
special law
Country wise Analysis in Brief
United States of America (U.S.A.)
Cyber Crimes and Indian Response

Introductory Note:
• India has emerged as world's leader in the field of information
technology. The earrings from software export and IT services is
now contributing substantially to the Indian economy.
• It is estimated that IT and ITES export will account for more than
35% of all foreign exchange income of India by 2003 and the IT
industry will contribute to the 25% of incremental GDP growth
between 2002 to 2008.
• The number of computer and IT literates is bound to increase leaps
and bounds due to introduction of computer courses into the
schools, colleges and university curriculums and various private
computer institutes coming into existence at Block level.
The Indian Information Technology Act, 2000
• Indian Parliament has enacted 'The Information Technology Act,
2000' to provide recognition for transaction carried out by means of
electronic data interchange and other means of electronic
communication, commonly referred to as "electronic commerce" .
• The Indian Evidence Act, 1872, The Banker's Book Evidence Act,
1891 and the Reserve Bank of India Act, 1934 and for other matters
connected therewith or incidental thereto. The important objective of
the Act, of course, is to facilitate legal recognition and regulation of
commercial activities through electronic medium.
• Penalty for Damage of Computer, Computer System or
Network
• Section 43 of the Act stipulates a liability to pay damages in the form
of compensation not exceeding Rs. one crore to the persons so affected
where any person without permission of the owner or any other
person, who is in-charge of a computer, computer system or computer
network.

• Penalty for Failure of Return, Information, etc.

• Section 44 of the Act prescribes certain legal formalities and states that
if any person who is required under this Act or any rules or regulations
made there under to furnish returns, maintain books, accounts, etc.
• maintain books of account or records, fails to maintain the same, he
shall be liable to a penalty, not exceeding ten thousand rupees for
every day during which the failure continues.
• Offence Relating to Tampering with Computer Source
Documents
• 65. Tampering with computer source document : Whoever
knowingly or intentionally conceals, destroys or alters or
intentionally or knowingly causes another to conceal,
destroy or alter any computer source code used for a computer,
computer programme, computer system or computer network,
when the computer code is required to be kept or maintained
by the time being in force shall be punishable with
imprisonment up to three years, or with fine which'may be
extended up to two lakh rupees, or both."
• Offence of Hacking
• Section 66 defines the offence of hacking with computer
system. Under the provisions of this section, whoever with
intent to cause or knowing that he is likely to cause wrongful
loss or damage to the public or any person destroys or alters
any information residing in a computer resource or diminishes
its value or utility or affects it injuriously by any means,
commits hacking and whoever commits hacking shall be
punished with imprisonment up to three years, with fine,
which may be extended up to two lakh rupees, or with both.
Offence of Non-compliance of Instructions from Controller
• The Controller of Certifying Authorities are appointed by the
central government under the provisions of section 17 of the
Act.
• Any person failing to comply with such order shall be guilty
of an offence and shall be liable on conviction to
imprisonment for a term not exceeding three years or to a fine
not exceeding two lakh rupees or both.
Offence of Misrepresentation or Suppression of Facts
• According to section 71 of the Act6 , whoever makes any
misrepresentation to, or suppression of any material fact from
the Controller or the Certifying Authority for obtaining any
licence or digital signature certificate, as the case may be,
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.
Offence of Breach of Confidentiality and Privacy
• According to section 72 of the Act, save as otherwise provided
in this Act or any other law for the time being in force, if 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 and 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.
• Offence of Publishing Digital Certificate False in Certain
Particulars
• Section 73 (1) provides that no person shall publish a Digital
Signature Certificate or otherwise make it available to any
person with the knowledge that the certifying authority listed
in the certificate has not issued it; or the subscriber listed in
the certificate has not accepted it;
• Any person who contravenes the provisions of sub-section (1)
shall be punished with imprisonment for a term which may
extend to two years, or with fine which extend to one lakh
rupees or with both.
• Offence of Publication for Fraudulent Purpose
• Section 74 of the Act stipulates that whoever knowingly
creates, publishes or otherwise makes available a digital
signature certificate for any fraudulent or unlawful purpose
shall be punished with imprisonment for a term which may
extend two years, or with fine which may extend to one lakh
rupees, or with both.
Miscellaneous and Subsidiary Provisions:
(a)Committed Outside India:
(b) Confiscation :
(c) Penalties or Confiscation not to Interfere with other
Punishments:
(d) Power to Investigate Offences, Enter, Search, etc. :
(e) Offence by Companies:
(f) Liability of Network Service Provider:
Miscellaneous and Subsidiary Provisions:
(a) Offences Committed Outside India:
Section 75 Provides that the application of the Act shall be
extended beyond the territorial limits of India and shall apply
also to any offence or contravention committed outside India
by any person irrespective of his nationality.
(b) Confiscation :
Section 76 stipulates that any computer, computer system,
floppies, compact disks, tape drives or any other accessories
related thereto, in respect of which any provisions of this Act,
rules, orders or regulations made there under has been or is
being contravened, liable to confiscation.
(c) Penalties or Confiscation not to Interfere with other
Punishments:
Section 77 provides that no penalty imposed or confiscation
made under this Act shall prevent the imposition of any other
punishment to which the person affected thereby is liable
under any other law for the time being in force.

(d) Power to Investigate Offences, Enter, Search, etc. :

Section 78 of the" Act provides that, notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of
1974), only a police officer not below the rank of Deputy
Superintendent of Police shall investigate an offence under the
Act.
• Section 80 of the Act further provides that notwithstanding
anything contained in the Code of Criminal Procedure, 1973
(2 of 1974), any police, not below the rank of a Deputy
Superintendent of Police, or any other officer ·of the Central
Government or a state government authorised by the Central
Government in this behalf may enter any public place and
search and arrest without warrant any person found therein
who is reasonably suspected .
• The expression "public place" includes any public
conveyance, any hotel, or any other place intended for use, or
accessible to the public. Here the expression obviously
excludes the power to enter and search the residential houses
and other private places. Subject to these provisions, the
provisions of the Code of Criminal Procedure, 1973 (2 of
1974) shall be made applicable to any entry, search or arrest.
(e) Offence by Companies:
• According to section 85 of the Act, where a person committing a
contravention of any of the provisions of this Act or of any rule,
direction or order made there under is a company, every person
who, at the time the contravention was committed, was in charge
of, and was responsible to, the company for the conduct of
business of the company as well as the company.
• where a contravention of any of the provisions of this Act or of
any rule, direction or order made there under has been committed
by a company and it is proved that the contravention has taken
place with the consent or connivance of or is attributable to any
neglect on the part of any director, manager, secretary or other
officer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of the contravention and
shall be liable to be proceeded against and punished accordingly.
(f) Liability of Network Service Provider:
Section 79 stipulates that no person providing any services as
a network service provider shall be liable under this Act, rules
or regulation made there under for any third party
information or data made available him if he proves that the
offence or contravention was committed without his
knowledge or that he had exercised all due diligence to
prevent the commission of such offence or contravention.
Certain Shortcomings :
(a) Power of Police to Enter and Search Limited to Higher
Officers and to Public Places:
(b) Inapplicability to Certain Laws and Documents:
(c) Lacks Definition of Cyber Stalking and Harassment
(d) Improper Definition of Hacking:
(e) Qualification of Adjudicating Offices not Prescribed:
(f) Lacks of Steps for Checking Internet and Copyright Piracy:
(g) Lack of International Cooperation:
(h) Lack of Appropriate Guidelines for Investigation :
(a) Power of Police to Enter and Search Limited to
Higher Officers and to Public Places:
• Deputy Superintendent of Police (DSP), to enter and search
the public places and arrest without warrant any person who is
reasonably suspected of having committed or of committing or
of being about to commit any offence under the Act, but such
power is limited to the extent of "public places" only
• such criminal offences may be committed or being committed,
at large scale from residential houses and such other private
places.
(b) Inapplicability to Certain Laws and Documents:
• Any contract for sale of immovable property or any kind of
interest in such property; and any such kind of documents or
transactions which may be notified by the Central Government in
the Official Gazette. Such type of wide range of inapplicability of
the Act has substantially reduced its utility.

(c) Lacks Definition of Cyber Stalking and Harassment:

• Deals with hacking, damage to computer source code, publishing
of obscene information and breach of protected system. It,
however, completely ignores cyber stalking and other form of
harassment. Due to this drawback, for example, the accused of
Delhi based, Ritu Kohli, the victim in the first ever case of cyber
stalking reported in India, was booked under the relatively
innocuous section 509 of the Indian Penal Code
(d) Improper Definition of Hacking: The scope of section
66 (1) is so wide that any activity of a person done
over the internet may be covered under mischief of
the section. Further, word "wrongful loss" has not
been defined in the Act.

(e) Qualification of Adjudicating Offices not Prescribed:

Section 46 of the Act provides for appointment of an
officer not below the rank of a Director or an
equivalent officer of state government to be an
adjudicating officer for holding an enquiry under the
Act.
(f) Lacks of Steps for Checking Internet and Copyright
Piracy:
• There is apparent act of appropriate measures in the
field of checking the violation of copyright of music,
songs, pictures, etc., in the Act, despite such
infringements have become Sampant after advent of
internet. Such type of violation of intellectual
property rights and piracy in the cyber space have
several for reaching civil consequences.
(g) Lack of International Cooperation: The impact and
area of operation of cyber crimes are global and
therefore, any effort at the level of a particular country
cannot be fruitful.
(h)Lack of Appropriate Guidelines for Investigation : The
traditional investigatory procedures are not capable
enough to detect and collect evidences in the field of
cyber crimes. The cyber space is under rapid
development and law, therefore, must be amended
properly to cope up with the same
Mens Rea in English Criminal Law :-
it is negligence, sometimes malice, sometimes guilty
knowledge but as a general rule there must be something of
that kind which is designed by the expression mens rea.
Similarly, Justice Stephens also observed in Tolsoris15 case
that "the full knowledge of every crime contains expressly or
by implication a proposition as to a state of mind.
Abetment of Offence :-
The word is wide enough to mean and include-advocating,
arousing, assisting, backing, contributing, cooperating with,
encouraging, facilitating, goading, helping, inciting,
nourishing, prompting, serving, stimulating, supplying aid,
supporting, to maintain or patronise, to set on.
• In order to constitute abetment, the abettor must be shown to
have "intentionally" aided the commission of the crime.
According to section 107 IPC, the "abetment" comprises
(i) instigation to do that thing which is an offence,
(ii) engaging in any conspiracy for the doing of that thing
(iii) intentionally aiding by an act or illegal omission.
• Section L 108 of IPC defines an abettor as a person who abets
an offence or who abets either the commission of an offence
or the commission of an act which would be an offence.
Criminal Liability and Role of Mens Rea in 'Indian Information
Technology Act, 2000.
The offences defined and penalties in the Indian Information Technology
Act, 2000 have been divided into two categories. in view of the broad area
of criminalisation in the cyber space.

The first category of violations, i.e., section 43, 44 and 45 of the Act, are
not subject to criminalisation and mens rea is not made applicable to them.

The second category of offences are concerning tampering with computer

source documents (sec. 65), hacking with computer system (sec. 66), and
publication of fraudulent purpose (sec. 74), and mens rea has been made
integral part the allegation of offence by inducting words like "knowledge"
or "intention" therein.
• The case also draws attention towards the Indecent Representation of
Women (Prohibition) Act, 1986 (IRWP Act). Section 3 of the IRWP Act
prohibits all persons from getting involved, directly or indirectly, in the
pubJtcation or exhibition of any advertisement containing indecent
representation of women in any form. Section 7 of the IRWP Act fixes
liability for indecent representation on the company and every person who
was In charge of the conduct of the company's business.

• There are two principal types of internet auctions conducted by auction

websites :
• Business-to-consumer (B2C) auctions
• consumer-to-consumer (C2C) auctions.