Provisions of Amended Information Technology Act, 2008

Presentation on Provisions of Amended Information Technology Act.: 

Presentation on Provisions of Amended Information Technology Act. By Geeta Gulati Partner Universal Legal

Aim And Objectives : 

Aim And Objectives Facilitating the use of electronic commerce For promoting efficient delivery of government services by means of reliable electronic records.

Amendments in other laws: 

Amendments in other laws The words like electronic records, electronic agreements, printouts of data stored in a floopy, disc tapes, have been incorporated in sec 91-93 of the Indian Penal Code, The Indian Evidence Act and the Bankers’ Book Evidence Act. The section 94 of the Reserve Bank of India Act was also amended to regulate electronic funds transfer.

Important Definitions under the Act: 

Important Definitions under the Act Communication device: includes cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image; Computer: means any electronic, magnetic, optical or high speed data processing device or system which performs logical, arithmetic and memory functions by manipulation of electronic, magnetic or optical impulses and includes all input, output, processing, storage,computer software or communication facilities which are connected or related to the computer in a computer system or computer network.

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Computer network: means the inter connection of one or more computers or systems or communication device through; i) the use of satellite, microwave, terrestrial line, wire, wireless or other communication media; ii) terminals or a complex consisting of two or more interconnected computers or communication device whether or not the inter-connection is continuously maintained;

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Computer resources: means computer, computer system, computer network, computer data base or software; Computer system: means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files which contain computer programmes, electronic instructions, input data and output data that performs logic, arithmetic, data storage and retrieval, communication control and other functions;

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Electronic record: means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche; Digital signatures: means authentication of any electronic record by a subscriber by means of an electronic method or procedure;

Transactions to which the Act does not Apply: 

Transactions to which the Act does not Apply Negotiable Instrument (other then cheque) A power of attorney; A trust; A will ; Any contract of the sale of conveyance of immovable property or any interest in such property.

Communication by way of electronic messages: 

Communication by way of electronic messages The Act identifies three parties to the electronic transmission process: i) originator (is the sender, the generator of electronic message) ii) intermediary (is a facilitator to receive, store or transmit or provide any service with respect to the message) iii) addressee (is the recipient of the message)

Attribution of Electronic message/record: 

Attribution of Electronic message/record The electronic record shall be attributed to the originator where; The message was send by the originator; The message was send by a person other then the originator, who had the authority to act on behalf of the originator; The information system programmed by or on behalf of the originator to operate automatically.

Acknowledgement of receipt: 

Acknowledgement of receipt i) where mode of acknowledge not specified by the originator: a) any communication by the addressee, automated or otherwise b) any conduct by addressee, to indicate receipt. ii) where the originator has stated that the electronic record is binding only on receipt of an acknowledgement. iii) where the originator has specified the time or where no time is specified, reasonable time.

Time and Place of despatch and receipt of electronic record: 

Time and Place of despatch and receipt of electronic record i) where the despatch of the electronic record occurs when it enters a computer resource outside the control of the originator; ii) time of receipt is determined as: a) where the addressee has designated a computer resource for the purpose of receiving electronic record: i) receipt occurs when the electronic record enters the designated computer resource; ii) where computer is not designated, then receipt occurs when the electronic record is retrieved by the addressee. The electronic record is deemed to be despatched at the place where the originator has his place of bussiness and deemed to be received at the place where the addressee has his place of business.

Electronic Signature Certificates: 

Electronic Signature Certificates The Act provides for certifying authority to issue electronic signature certificate to any person who makes an application for the same, along with fee for rupees twenty five thousand.

United Nations Definitions of Cyber Crimes: 

United Nations Definitions of Cyber Crimes The definition as per United Nations: Computer Crime: Any illegal behavior directed by means of electronic operations that targets the security of computer systems and the data processed by them. Computer related crimes: Any illegal behavior committed by means of, or in relation to, a computer system or network, including such crimes as illegal possession or distribution of information by means of computer system or network.

Penalties And Adjudication: 

Penalties And Adjudication The Act provides for prosecution of any person who deliberately and without authorization, misuse computer, computer system or computer network, which belongs to the owner or to third parties. For prosecution it’s immaterial whether the modification is permanent or temporary. To be covered under the section (43) the intent of the unauthorized person has to be seen and not whether the damage done is immediate or which occurs in future.

Following features are unauthorized modification of computer, computer system or computer network: 

Following features are unauthorized modification of computer, computer system or computer network a) accessing or securing access; b) downloading, copying or extracting any data, computer database or information, including information or data held or stored in any removable storage medium; c) introducing or causing to introduce any computer contaminant or virus; d) damaging or causing to damage any computer system, network, data, computer database or any other programme; e) Disrupting or causing any disruption; f) Denying or causing the denial of access; g) providing assistance to any person to facilitate access; h) charging the services availed of by a person to the account of another person by tempering or by manipulating ; i) destroys, deletes or alters any information or diminishes its value or utility or affects it injuriously J) steals, conceals, destroys or alters any computer source code, with the intention to cause damage or abets the same.

Compensation for failure to protect data, under section 43A: 

Compensation for failure to protect data, under section 43A Any business entity who is in possession or is dealing or handling any sensitive personal data or information in a computer resource which the business entity owns, control or operates, is negligent in implementing and maintaining reasonable security practices and thus causes wrongful loss or gain to any person, the business entity shall be liable for paying damages to the person so affected.

Power to Adjudicate, under Section 46: 

Power to Adjudicate, under Section 46 The Act has the provision for appointment of Adjudicating officer, who shall be not be below the rank of Director to Government of India or State Government. The Adjudicating officer will have jurisdiction to adjudicate matters in which the claims for injury or damage does not exceed rupees five (5) crores.

Cyber Appellate Tribunal, under section 48 & Provisions of Appeal.: 

Cyber Appellate Tribunal, under section 48 & Provisions of Appeal. The Act has laid down provision for establishment of Cyber Appellate Tribunal. The appeal will lie to CAT, from the order of Controller or Adjudicating Officer. The limitation for filing appeal is forty five (45) from the receipt of the order to be appealed against. Appeal to High Court lies from CAT, which should be filed within sixty (60) days of receipt of the order.

offences: 

offences Tempering with computer source documents: Under section 65 of the Act, Concealment, destruction, alteration of computer source code, with the knowledge and intention of doing so, or abetting such actions. Punishment: imprisonment for a period up to three years or fine up to two lakh rupees or both.

Computer related offences under section 66: 

Computer related offences under section 66 Dishonestly and fraudulently committing contraventions under section 43 of the Act by any person; Punishment: imprisonment for a term which may extent to three years or with fine which may extent to five lakh rupees or with both.

Sending offensive messages through communication service, under Section 66A: 

Sending offensive messages through communication service, under Section 66A Sending information which is grossly offensive or has menacing character; Mailing false information to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; Sending mail for the purpose of causing annoyance or inconvenience or to deceive, mislead the addressee about the origin of such messages. Punishment: for a term which may extend to three years and with fine.

Receiving stolen computer resource or communication device, under section 66B: 

Receiving stolen computer resource or communication device, under section 66B Under section 66B, whoever dishonestly received or retained any stolen computer resource or communication device with knowledge or have reasons to believe the same to be stolen computer resource or communication device. Punishment: Imprisonment for a term which may extent to three years or with fine which may extent to one lakh rupees or with both.

Identity Theft, under Section 66C: 

Identity Theft, under Section 66C Fraudulently or dishonestly making use of the electronic signature, password or any other unique identification feature of any other person. Punishment: Imprisonment for a term which may extent to three years or with fine which may extent to one lakh rupees.

Cheating by personation by using computer resource, under section 66D.: 

Cheating by personation by using computer resource, under section 66D. Cheating by Personation by means of any communication device or computer resource Punishment: For a term of which may extent to three years and fine which may extent to one lakh rupees.

Violation of Privacy, under Section 66E: 

Violation of Privacy, under Section 66E Intentionally or knowingly capturing, publishing or transmitting the images of a private area of any person without the consent of the later. Punishment: Term of imprisonment may extent to three years or with fine not exceeding two lakh rupees, or with both.

Cyber Terrorism, under Section 66F: 

Cyber Terrorism, under Section 66F A- Whoever with intention to threaten the unity, integrity, security or sovereignty of India or to cause terror in the people or any section of people by- i) causing denial of access to authorized person; ii) attempting to penetrate or access a computer resource without authorization or by exceeding authorised access. iii) introducing or causing to introduce computer contaminant The conduct causes or likely to cause death or injuries to persons or damage or causes or likely to cause destruction of property or damage or disruption to supplies or services essential to life.

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B- Penetration or access to computer resource without authorization or exceeding authorized access, with knowledge and intention, and thus obtains access to information, data or computer database. Punishment: Term of imprisonment may extent to life.

Publishing or transmitting obscene material in electronic form- Section 67: 

Publishing or transmitting obscene material in electronic form- Section 67 Publishing or transmitting or causing same to be published or transmitted in electronic form, material which is obscene. Punishment: imprisonment may extent to three years and with fine which may extent to five lakh rupees. For subsequent conviction the term of imprisonment may extent to five years with fine, which may extent to ten lakh rupees.

Publishing or transmitting of material containing sexually explicit act, under Section 67A: 

Publishing or transmitting of material containing sexually explicit act, under Section 67A Publishing or transmitting or causing to be published or transmitted in electronic form any material which contains sexually explicit act or conduct. Punishment: For first conviction; imprisonment for a term which may extent to five years and with fine which may extent to ten lakh rupees. Second conviction: imprisonment which may extent to seven years and fine which may extent to ten lakh rupees.

Publishing or Transmitting of material depicting children in sexually explicit act, under Section 67B: 

Publishing or Transmitting of material depicting children in sexually explicit act, under Section 67B Publishes or transmits or causes the publishing or transmitting the material in electronic form, which depicts children engaged in sexually explicit act or conduct; Depicting children in obscene or indecent or sexually explicit manner, by way of creating text, digital images or by collecting, seeking, browsesing, downloading, advertising, promoting, exchanging or distribution of such material; To entice, induce children to get into online relationship with other children for and on sexually explicit act or manner in which a reasonable adult may get offended; Facilitates abusing children online; Recording in electronic form own abuse or that of otehrs pertaining to sexually explicit act with children.

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Punishment: for first conviction- imprisonment for a term which may extent to five years and with fine which may extent to ten lakh rupees For second conviction- imprisonment which may extent to seven years and with fine which may extent to ten lakh rupees.

Breach of confidentiality and privacy, under section 72: 

Breach of confidentiality and privacy, under section 72 Securing access to any electronic record, book register, correspondence, information, document, or other material and disclosing the same to any person, without the consent of the concerned person, will commit breach under the Act. Punishment: imprisonment for a term which may extent to two years or with fine which may extent to one lakh rupees or both.

Power to Investigate offences, under Section 78: 

Power to Investigate offences, under Section 78 The Act has a provision for a Police Officer not below the rank of Inspector to investigate any offence under the Act!!!

Intermediary exempted for liability, under Section 79.: 

Intermediary exempted for liability, under Section 79. Intermediary not liable for:- Any third party information, data or communication link made available or hosted by intermediary, under the circumstances; Where the function of intermediary is limited to providing access to a communication system, or where the information is transmitted or temporarily stored, Where the intermediary does not – Initiate transmission, Select the receiver of transmission Select or modify the information in the electronic record. Intermediary is exempted where he observes proper due diligence.

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Intermediary will not be exempted under following circumstances: Where the intermediary has conspired or abetted or aided or induced, whether by threats or promise or authorise in the commission of the unlawful Act, Failure to remove or disable access even after intimation by appropriate government or its agency.

Bazee Case: 

Bazee Case CEO of Bazee.com was arrested in Dcember 2004 because CD with objectionable material was being sold on the website. The CD was also being sold in Delhi. The CEO was later released on Bail. This case opened the debate as to the difference between internet service provider & content provider .

Offences by Companies under Section 85 : 

Offences by Companies under Section 85 Any person, who was in charge of, responsible to the company for the conduct of business of the company, at the time of commitment of a contravention of any provision of the Act or rule, shall be held guilty for the contravention; Provided- Such person is able to proof that contravention happened without his knowledge or he exercised all due diligence.

Case Law: Nasscom Vs Ajay Sood & others: 

Case Law: Nasscom Vs Ajay Sood & others In this case Delhi High Court declared ‘phishing’ on internet to be an illegal Act, entailing an injunction and recovery of damages. Facts: Defendant was running a placement agent, the defendant send mails representing Nasscom. Damages: The parties compromised, the defendant paid Rs.1.6 millions as compensation.

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Thank You!