Cyber Crimes Laws in India 2020

Cyber Crimes Laws in India 2020

Cyber Crimes Laws in India:

What are Cyber Crimes?

The term “cyber crimes” is no where explicitly defined in any statue in India. However, Wikipedia defines cyber crimes as “a crime involving a computer and a network. The computer is either used in the commission of the crime, or is the target of the crime”.  

Thus, cybercrimes are - "Offences committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm/ loss, to the victim directly or indirectly, using modern telecommunication networks such as internet, mobile phones etc”. Different form of cyber crimes include ransom-ware, hacking, cyber stalking etc.  

Different forms of traditional crimes have now their online versions too. For example, theft has evolved into data breaches, where information of millions of individuals are stolen for private gains. 

Importance of Cyber Laws in India:

Various initiatives of central and state governments like Digital India initiative, declining cost of smart phones, cheap internet services by giants like Reliance Jio has enhanced internet penetration rapidly in India. However, cyber crimes threatened to nullify the gains of enhanced virtual world connectivity. Therefore, need for explicit and dedicated cyber laws. 

The important of cyber laws has been exemplified by Information Technology Act, 2000 opening paragraph, which states – 

“An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as ? “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto”.

These laws assume even more significance today, in the backdrop of thrust on Digital India. 

The various advantages of cyber laws include:

  • Identifies newer forms of cyber crimes and prescribes punishment 
  • Reduces cyber crimes 
  • Confers extra territorial jurisdiction to LEAs
  • Secures online commerce infrastructure 
  • Confers recognition to digital signatures 
  • Secures electronic transactions etc

What are different Cyber laws in India?

Cyber sphere in India is not governed by a single explicit cyber law but by combination of them including Information Technology Act, Indian Penal Code, Intellectual Property related laws etc. They aim to protect citizens from various cyber crimes like hacking, ransom-ware, obscenity etc. 

With growing dependency on the virtual world, need for cyber law arose. It gave birth to India’s first dedicated law on cyber – Information Technology Act, 2000. The objectives of IT Act, 2000 were as follows:

  • To provide legal recognition to a) All electronic transactions, b) Digital signatures as valid signature to accept agreements online etc. 
  • To protect online privacy 
  • To prevent and deter cyber crimes in India 

Let’s now read about Information Technology Act in great depth 

What is the Information Technology Act, 2000?

Information Technology Act, also popularly known as Indian Cyber Act came into force in 2000. IT Act addresses issues pertaining to online security, which are crucial for the success of electronic transactions. It also lends legal credibility to digital signatures. The Act further amended: 

  • Indian Penal Code, 1860
  • Indian Evidence Act, 1872 
  • Banker’s Book Evidence Act, 1891 
  • Reserve Bank of India Act, 1934 

The Act essentially deals with the following issues and matters concerned thereto: 

  • Legal recognition of electronic documents  
  • Legal recognition of digital signatures  
  • Offenses and contraventions  
  • Justice dispensation systems for cyber crimes. 

Information Technology Act Structure:

The Act has 13 chapters and 90 Sections. 

  • It begins with definitions 
  • Subsequent chapters deal with authentication of e records, digital signatures, electronic signatures etc. 
  • The Act defines some well known cyber crimes like identify theft, impersonation, child pornography, obscenity etc. It also lays down the punishments. 
  • Finally, concepts like due diligence, role of intermediaries and miscellaneous provisions have been described. 
  • Last 4 section (Sections 91 to 94) deal with amendments to – Indian Penal Code 1960, The Indian Evidence Act 1972, The Reserve Bank of India Act 1934 and The Banker’s Books Evidence Act 1871 

Cyber Crimes Defined under IT Act:

  • Section 43: Penalty and compensation for damage to computer, computer system, etc.
  • Section 65: Tampering with computer source documents.
  • Section 66: Computer related offences
  • Section 66B: Punishment for dishonestly receiving stolen computer resource or communication device.
  • Section 66C: Punishment for identity theft.
  • Section 66D: Punishment for cheating by personation by using computer resource
  • Section 66E: Punishment for violation of privacy.
  • Section 66F: Punishment for cyber terrorism
  • Section 67: Punishment for publishing or transmitting obscene material in electronic form
  • Section 67A: Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form
  • Section 67B: Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form
  • Section 67C: Preservation and retention of information by intermediaries

Applicability:

The Act extends to whole of India. And by virtue of Section 75 as read below:

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.

The act also applies to any offence or contravention committed outside India by any person. 

There are also certain exceptions to the Act, detailed in it’s First Schedule. These exceptions include:

  • Negotiable instrument, other than a cheque as defined in Section 13 of the Negotiable Instruments Act, 1881 
  • Power of attorney as defined in section 1A of the Powers of Attorney Act, 1882 
  • A trust as defined in section 3 of the Indian Trusts Act, 1882 
  • A will as defined in clause (h) of section 2 of the Indian Succession Act, 1925 including any other testamentary disposition 
  • Any contract for the sale or conveyance of immovable property or any interest in such property 
  • Any such class of documents or transactions as may be notified by the Central Government

Information Technology Amendment in 2008: 

Salient features of this amendment include:

  • Focus on data privacy and information security 
  • Defines cyber café
  • Makes digital signature technology neutral 
  • Defines reasonable security practices to be followed by corporate
  • Re-defines the role of intermediaries  
  • Recognizes the role of Indian Computer Emergency Response Team
  • Recognizes additional cyber crimes like cyber terrorism
  • Authorizes Inspector as Investigating Officer

Whether Offences are Compoundable, Cognizable and Bailable?

Section 77A of IT Act says –“Subject to certain exceptions, all the offences under the IT Act for which the punishment is imprisonment for a term of 3 years or less, are compoundable. The provisions of sections 265B and 265C of the Code of Criminal Procedure, 1973 shall apply with respect to such compounding”.

Section 77B of the IT Act further lays down –“Notwithstanding anything contained in the Code of Criminal Procedure, all the offences punishable with imprisonment of 3 years and above under the IT Act shall be cognizable and all offences punishable with imprisonment of 3 years or less shall be bailable offences’. 

As such, most of cyber crimes under IT Act are bailable, except: 

  • Section 67: Publishing or transmitting obscene material in electronic form
  • Section 67 A: Publishing or transmitting of material containing sexually explicit act, etc., in electronic form
  • Section 67 B: Publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form
  • Section 66 F: Cyber terrorism 

Indian Penal Code:

Amendments have been made in IPC, to specifically cover cyber crimes. The most important ones are as follow:

  • Inserted new Section 29A: It defines “electronic record” 
  • Inserted new Section 4 (3): It says – the provisions of the IPC shall be applicable to any person in any place, “without and beyond India”, committing an offence targeting a computer resource located in India. 
  • In Section 464, the phrase “digital signature” was replaced with the phrase “electronic signature” at all the places. Also, “affixing electronic signature” was defined. 
  • "Electronic record" was included within the ambit of sections 164, 172, 173, 175, 192, 204, 463, 466, 468, 469, 470, 471, 474 and 476 of IPC.
  • Inserted new Section 354D: It penalized the offence of cyber stalking.

Sections: Bailable or Non-bailable?

All cyber crimes under IPC are bailable, except:

  • Section 378: Theft 
  • Section 409: Criminal breach of trust by public servant, or by banker, merchant or agent
  • Section 411: Dishonestly receiving stolen property 
  • Section 420: Cheating and dishonestly inducing delivery of property 
  • Section 468: Forgery for the purpose of cheating 

Overlap between Laws – IT Act and IPC:

In India both Information Technology Act, 2000 and amended Indian Penal Code, 1860 penalize cyber crimes. As expected, there are many over lapping provisions in these laws. Many of the cyber crimes penalized by IPC and IT Act, have essentially the same ingredients and even nomenclature. Consider the following examples: 

Parallel Provisions in IPC and IT Act, 2000

S. NoProvision in IPCProvision in IT Act
1Section 378 of IPC Sections 43 and 66 of IT Act
2Section 411 of IPCSection 66B of IT Act
3Section 419 of IPC Section 66C of IT Act and Section 66D of IT Act
4Sections 292 and 294 of IPC Sections 67, 67A and 67B of IT Act
5Section 409 of IPCSection 65 of IT Act

Anomalous Situation:

The parallel provisions in Indian Penal Code and IT Act, leads to conflicting situation at times. For example a particular section being – 

  • Bailable vs Non bailable
  • Compoundable vs Non compoundable
  • Cognizable vs Non cognizable  
  • In IT Act vs IPC or vice versa 

Example:

Hacking and data theft has been defined as offences, under section 43 and 66 of IT Act (bailable and compoundable). But, under Section 378 of IPC they are non bailable and further under Section 425 of IPC, they are non compoundable. 

Other Acts having bearing on Cyber Crimes:

IPR related acts under which criminal remedies are available, include:

  • Copyright Act, 1957
  • Trade Marks Act, 1999

Copyright Act:

Copyright is an exclusive legal right granted to the creators of the intellectual work. Copyright owner has several rights including right to reproduce, translate, adapt, perform, distribute and publicly display the work, etc. When the owner of copyright forgoes some of its rights, it’s called copyleft. 

Registration is not mandatory since copyright comes into existence as soon as the intellectual work is created. However, it is highly recommended to get the copyright registered for better IPR enforceability. This is because a registered copyright has more evidentiary value in court of law.

Works Covered under Copyrights:

Following are the works covered under the Copyright law:

  • Literary including Software: Books, Essay, Compilations, Computer Programs.
  • Artistic: Drawing, Painting, Logo, Map, Chart, Plan, Photographs, work of Architecture.
  • Dramatic: Screenplay, Drama.
  • Musical: Musical Notations.
  • Sound Recording: Compact Disc.
  • Cinematography Films: Visual Recording which includes sound recording.

Duration of Copyright:

  • Literary, Dramatic, Musical or Artistic Works: Lifetime of the author + 60 years from the death of the author.
  • Anonymous and Pseudonymous Works: 60 years from the year the work was first published.
  • Works of Public Undertakings and Government Works: 60 years from the year the work was first published.
  • Works of International Organizations: 60 years from the year the work was first published.
  • Sound Recording: 60 years from the year in which the recording was published.
  • Cinematography Films: 60 years from the year in which the film was published.

Trademark Act:

A trademark is a business identity and helps its customers to identify and distinguish the goods or service offered by the entity. Names, logo, packaging, sounds, signs, words, colors or any combination thereof can be filed as trademarks.

Offences committed and Relevant sections applicable:

IT Act Sections:

Action    Section Applicable
Tampering with computer source documents    Sec. 65
Hacking with computer systems,  Data alteration    Sec. 66
Sending offensive messages through communication service, etc. (Now struck down)    Sec. 66A
Dishonestly receiving stolen computer resource or communication device    Sec. 66B
Identity theft    Sec. 66C
Cheating by personation by using computer resources    Sec. 66D
Violation of privacy    Sec. 66E
Cyber terrorism    Sec. 66F
Publishing or transmitting obscene material in electronic form    Sec. 67
Publishing or transmitting of material containing sexually explicit act, etc. in electronic form    Sec. 67A
Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form    Sec. 67B
Preservation and retention of information by intermediaries    Sec. 67C
Powers to issue directions for interception or monitoring or decryption of any information through any computer resource    Sec. 69
Power to issue directions for blocking for public access of any information through any computer resource    Sec. 69A
Power to authorize to monitor and collect traffic data or information through any computer resource for cyber security    Sec. 69B
Un-authorized access to protected system    Sec. 70
Penalty for misrepresentation    Sec. 71
Breach of confidentiality and privacy    Sec. 72
Publishing false digital signature certificates    Sec. 73
Publication for fraudulent purpose    Sec. 74
Act to apply for offence or contraventions committed outside India    Sec. 75
Compensation, penalties or confiscation not to interfere with other punishments    Sec. 77
Compounding of offences    Sec. 77A
Offences with three year imprisonment to be cognizable    Sec. 77B
Exemption from liability of intermediary in certain cases    Sec. 79
Punishment for abetment of offences    Sec. 84B
Punishment for attempt to commit offences    Sec. 84C
Offences by Companies    Sec. 85

IPC Sections:

Sending threatening messages by e-mail    Sec. 503 IPC
Word, gesture or act intended to insult the modesty of a woman    Sec. 509 IPC
Sending defamatory messages by e-mail    Sec. 499 IPC
Bogus websites, Cyber frauds    Sec. 420 IPC
E-mail spoofing    Sec. 463 IPC
Making a false document    Sec. 464 IPC
Forgery for purpose of cheating    Sec. 468 IPC
Forgery for purpose of harming reputation    Sec. 469 IPC
Web-jacking    Sec. 383 IPC
E-mail abuse    Sec. 500 IPC
Punishment for criminal intimidation    Sec. 506 IPC
Criminal intimidation by an anonymous communication    Sec. 507 IPC
Obscenity    Sec. 292 IPC
Printing etc. of grossly indecent or scurrilous matter or matter intended for blackmail    Sec. 292A IPC
Sale, etc., of obscene objects to young person    Sec. 293 IPC
Obscene acts and songs    Sec. 294 IPC
Theft of computer hardware    Sec. 378 IPC

Copyright Act Sections:

When copyright infringed: Copyright in a work shall be deemed to be infringed Sec. 51
Offence of infringement of copyright or other rights conferred by this Act. Any person who knowingly infringes or abets the infringement    Sec. 63
Enhanced penalty on second and subsequent convictionsSec. 63A
Knowing use of infringing copy of computer program to be an offence Sec. 63B

Types of Cyber Crimes and Applicable Laws:

Email Hacking:

Case 1:

  • Victim’s password is stolen & obscene emails are sent to his/ her friends.
  • Section 43, 66, 67 of IT Act 2000 & Section 509 of IPC are applicable.
  • Both the hacker and one who misuses the account are responsible for the crime.

Case 2:

  • Victim’s password is stolen & hacker threatens the victim for money extortion.
  • Section 43, 66 of IT ACT 2000 & Section 384 of IPC are applicable.
  • Both the hacker and one who misuses the account are responsible for the crime.

Case 3:

  • Victim’s password is stolen & hacker is sending virus, worms or either scam mails from his/ her account.
  • Section 43,66 of IT Act 2000 is applicable.
  • Both the hacker and one who misuses the account are responsible for the crime.

Virus Dissemination:

Case 1:

  • Virus is being used to target individual or specific organization.
  • Section 43, 66 of IT Act 2000 & Section 426 of IPC are applicable.
  • The virus creator as well as the person who is sending the virus is responsible for the crime.

Case 2: 

  • When somebody pirates the software and makes pirated CDs.
  • Section 43, 66 of IT Act 2000 & Section 63 of Copyright Act are applicable.
  • The person who has pirated the software as well as person who buys & uses such software is responsible.

Cyber Pornography Crimes:

Case 1:

  • Somebody abuses specific person by publishing naked pictures and uploads it online.  Section 67 of IT Act 2000.
  • The owner of the website and one who uploads them are both liable for the crimes.

Social Networking Fake Profile and Impersonation Crimes:

Case 1:

  • Fake account of women is created & photograph, phone number & address has been posted on the profile. The profile also maligns the image of the woman.
  • Section 67 of IT Act 2000 & Section 509 of IPC.

Email Scams:

  • Person sends emails & convinces the victim to part with his/ her money by offering job, lottery & investment offers.
  • Section 420 of IPC.
  • The one who sends the email is liable for the crime.

Theft of the Confidential Information:

Case 1:

  • Employee steals the confidential information of a company & mails it to the competitors.
  • Section 43, 66 of IT Act 2000 & Section 426 of IPC.

Case 2:

  • Employee steals the confidential information of a company & threatens the company for money extortion.
  • Section 43, 66 of IT Act 2000 & Section 384 of IPC.
  • The person who has stolen the information and the person who threatens the victim are both liable for the crime.

Credit Card Frauds:

Case 1:

  • Credit cards details are misused.
  • Section 43, 66 of IT Act 2000 & Section 420 of IPC.
  • The person who stole the information as well as the one who misused the information are both liable for the offence.