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Information Technology Law

Internet Shutdowns and Digital Rights.

Internet shutdowns in India have become a significant concern, both domestically and internationally, in recent years. These shutdowns typically occur under the guise of maintaining public order, national security, or preventing the spread of misinformation. However, they often infringe upon citizens’ digital rights and freedom of expression.

The legal framework for internet shutdowns in India primarily relies on the colonial-era Indian Telegraph Act of 1885, which grants the government broad powers to suspend telecommunication services, including the internet, in the interest of public safety or national security. Additionally, the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, provide a procedural framework for implementing such shutdowns.

Despite these legal provisions, there is widespread criticism of the arbitrary and disproportionate use of internet shutdowns by Indian authorities. Shutdowns have been deployed preemptively in anticipation of unrest, during protests, or in response to civil disturbances, often without adequate justification or transparency. Furthermore, shutdowns are frequently implemented across entire regions or states, impacting millions of users and causing significant economic and social disruptions.

Digital rights activists and civil society organizations in India have been actively campaigning against internet shutdowns and advocating for greater transparency, accountability, and judicial oversight in their implementation. They argue that internet access is essential for exercising fundamental rights, accessing information, conducting business, and participating in democratic processes.

Despite these efforts, internet shutdowns continue to be deployed regularly in India, with the country experiencing one of the highest numbers of shutdown incidents globally. The situation underscores the complex interplay between security concerns, governmental authority, and individual rights in the digital age. Addressing this issue requires a delicate balance between safeguarding public order and upholding fundamental freedoms, including the right to access information and communicate freely online.

Digital Rights:

Digital rights encompass a range of fundamental freedoms and protections that apply to individuals’ activities and interactions in the digital sphere. When it comes to internet shutdowns, several rights are particularly relevant:

  1. Freedom of Expression: This right guarantees individuals the freedom to express their opinions and ideas without interference or censorship. Internet shutdowns restrict people’s ability to communicate online, stifling their freedom of expression and limiting their access to information.
  2. Right to Access Information: The right to access information is closely linked to freedom of expression. It ensures that individuals have the ability to seek, receive, and impart information and ideas through any media, including the internet. Shutdowns deprive people of access to vital information, hindering their ability to make informed decisions and participate fully in democratic processes.
  3. Privacy: Privacy rights protect individuals’ personal data and communications from unauthorized access, surveillance, and interference. Internet shutdowns can disrupt secure communication channels and expose individuals to greater surveillance risks as they may resort to less secure means of communication.
  4. Freedom of Assembly and Association: These rights guarantee individuals the freedom to peacefully assemble and associate with others, including online. Internet shutdowns prevent people from organizing and participating in online gatherings, discussions, and protests, limiting their ability to exercise these fundamental freedoms.
  5. Right to Education and Work: Access to the internet is essential for education, employment, and economic participation in today’s digital society. Shutdowns disrupt online learning platforms, remote work opportunities, and e-commerce activities, disproportionately impacting marginalized communities and hindering socio-economic development.
  6. Right to Due Process and Judicial Review: Individuals have the right to due process and judicial review to challenge government actions that infringe upon their rights. Internet shutdowns should be subject to legal scrutiny, and affected individuals should have avenues for redress and remedy through the judicial system.

Protecting Digital rights

Internet shutdowns pose a significant threat to digital rights, including freedom of expression, access to information, privacy, and freedom of assembly. Protecting these rights in the face of internet shutdowns requires a multi-faceted approach involving legal, technological, and advocacy efforts. Here are some ways in which digital rights can be protected:

  1. Legal Frameworks: Establishing clear legal frameworks that safeguard digital rights is crucial. This includes enshrining principles such as freedom of expression and privacy in national constitutions, as well as passing legislation that explicitly prohibits arbitrary internet shutdowns and ensures judicial oversight of any restrictions on internet access.
  2. Judicial Oversight: Independent judicial oversight is essential to prevent abuse of power and ensure that any restrictions on internet access are proportionate, necessary, and in line with international human rights standards. Courts can play a vital role in reviewing government actions and striking down unconstitutional internet shutdowns.
  3. Transparency and Accountability: Governments should be transparent about the reasons for implementing internet shutdowns, including providing clear justifications and evidence for the necessity of such measures. Additionally, mechanisms should be in place to hold authorities accountable for any abuses or violations of digital rights that occur during shutdowns.
  4. Access to Information: Ensuring access to information is essential for protecting digital rights. Efforts should be made to diversify and strengthen internet infrastructure to minimize the impact of shutdowns, such as investing in alternative technologies like mesh networks or satellite internet.
  5. Digital Literacy and Education: Promoting digital literacy and education can empower individuals to understand their digital rights and advocate for their protection. This includes raising awareness about the impact of internet shutdowns on freedom of expression, privacy, and other rights, as well as providing tools and resources for individuals to secure their online communications and data.
  6. International Pressure and Solidarity: The international community can play a crucial role in pressuring governments to respect digital rights and refrain from implementing internet shutdowns. This includes diplomatic efforts, international condemnation of shutdowns, and support for civil society organizations and activists working to protect digital rights.
  7. Technological Solutions: Developing and deploying technological solutions that enable circumvention of internet shutdowns can help mitigate their impact. This includes tools such as virtual private networks (VPNs), encrypted messaging apps, and peer-to-peer communication platforms that allow individuals to bypass government-imposed restrictions and communicate securely.

Conclusion:

By adopting a comprehensive approach that combines legal, technological, and advocacy efforts, digital rights can be better protected in the face of internet shutdowns and other threats to online freedoms.These rights are enshrined in various international human rights instruments, including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), as well as in many national constitutions and legal frameworks. Protecting these rights in the digital age requires governments to respect and uphold their obligations under international law, including refraining from arbitrary or disproportionate restrictions on internet access and communication.

OTT Platforms vis-à-vis Information Technology Rules, 2021

Over-the-Top (OTT) platforms have gained significant prominence in India’s digital landscape, offering a wide range of content, including movies, web series, documentaries, and more, directly to consumers via the internet, bypassing traditional broadcast and cable television platforms. With the rapid growth and increasing influence of OTT platforms, the Indian government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, to regulate digital media and OTT platforms in the country. Below is an overview of the implications of the Information Technology Rules, 2021, on OTT platforms in India:

Information Technology Rules, 2021: Key Provisions for OTT Platforms

The definitions and regulatory framework for Over-the-Top (OTT) platforms and digital media intermediaries under the Information Technology Rules, 2021, are primarily outlined in various sections of the rules. The Information Technology Rules, 2021, were introduced as a subordinate legislation under the Information Technology Act, 2000, to govern digital media, including OTT platforms, in India. Below are the relevant sections and provisions that define and regulate OTT platforms and digital media intermediaries:

Definitions and Regulatory Framework under the Information Technology Rules, 2021:

  1. Definition of OTT Platforms (Digital Media Intermediaries):
  • Section 2(1)(k) of the Information Technology Rules, 2021 defines “Digital Media Intermediary” to include OTT platforms, social media platforms, and digital news publishers.
  • Section 2(1)(w) of the Information Technology Rules, 2021 specifically defines OTT platforms as entities that publish or transmit curated programs, movies, or series over the internet, such as Netflix, Amazon Prime Video, Disney+ Hotstar, and others.

2. Content Classification and Regulation:

  • Section 3(1) of the Information Technology Rules, 2021 mandates OTT platforms to classify their content into age-based categories: U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
  • Section 3(2) of the Information Technology Rules, 2021 requires OTT platforms to implement parental controls for content classified as U/A 13+ or higher to ensure child safety and protection.

3. Grievance Redressal Mechanism:

  • Section 9 of the Information Technology Rules, 2021 prescribes the guidelines and procedures for establishing a robust grievance redressal mechanism by digital media intermediaries, including OTT platforms.
  • Section 14 of the Information Technology Rules, 2021 mandates OTT platforms to appoint a Grievance Redressal Officer based in India to address user complaints and concerns regarding the content within 15 days.

4. Compliance and Transparency Requirements:

  • Section 4 of the Information Technology Rules, 2021 outlines the compliance requirements for digital media intermediaries, including the appointment of a Chief Compliance Officer, Nodal Contact Person, and Resident Grievance Officer to ensure adherence to the rules and regulations.
  • Section 4(2) of the Information Technology Rules, 2021 requires OTT platforms to publish monthly compliance reports detailing the complaints received, action taken, and other relevant data to maintain transparency in their operations.

5. Regulation and Self-Classification of Content:

  • OTT platforms are required to classify their content into five categories based on age suitability: U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
  • Platforms must implement parental controls for content classified as U/A 13+ or higher.

6. Grievance Redressal Mechanism:

  • OTT platforms are mandated to establish a grievance redressal mechanism to address user complaints and concerns regarding the content.
  • They are required to appoint a Grievance Redressal Officer based in India to handle user complaints within 15 days.

7. Content Complaints and Monitoring:

  • Platforms must take prompt action on content complaints received through the grievance redressal mechanism.
  • OTT platforms are expected to self-regulate their content and ensure compliance with the Code of Ethics and guidelines issued by the Ministry of Information and Broadcasting.

8. Compliance Officer and Chief Compliance Officer:

  • OTT platforms are required to appoint a Chief Compliance Officer responsible for ensuring compliance with the Information Technology Rules, 2021.
  • They must also appoint a Nodal Contact Person for 24×7 coordination with law enforcement agencies and a Resident Grievance Officer to address user complaints.

9. Transparency and Disclosure Requirements:

  • OTT platforms must provide detailed information about their operations, including the number of complaints received, actions taken, and other relevant data, in their annual transparency reports.

Implications for OTT Platforms:

  1. Increased Accountability and Regulation:
  • The Information Technology Rules, 2021, introduce a regulatory framework that holds OTT platforms accountable for the content they distribute and requires them to adhere to the Code of Ethics and self-regulation guidelines.

2. Enhanced User Protection and Safety:

  • The rules aim to protect users, especially children, from inappropriate and harmful content by implementing content classification and parental control mechanisms.

3. Improved Grievance Redressal Mechanism:

  • The introduction of a structured grievance redressal mechanism ensures timely and effective resolution of user complaints and concerns related to content on OTT platforms.

4. Transparent Operations and Compliance:

  • OTT platforms are required to maintain transparency in their operations and disclose relevant information to the public, fostering trust and accountability among users and stakeholders.

Legal Implications and Case Laws

  1. Freedom of Expression and Content Regulation:
  • Case Law: K.A. Abbas v. Union of India (1971)
    • In this landmark case, the Supreme Court upheld the freedom of expression as a fundamental right under Article 19(1)(a) of the Constitution of India but also recognized the state’s authority to impose reasonable restrictions in the interest of public order, decency, and morality.
  • The Information Technology Rules, 2021, aim to strike a balance between freedom of expression and content regulation by introducing a regulatory framework that holds OTT platforms accountable for the content they distribute.

2. Protection of User Rights and Privacy:

  • Case Law: Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)
    • In this landmark judgment, the Supreme Court recognized the right to privacy as a fundamental right under Article 21 of the Constitution of India, emphasizing the importance of data protection and privacy rights in the digital age.
  • The Information Technology Rules, 2021, seek to protect user rights and privacy by mandating OTT platforms to establish grievance redressal mechanisms and comply with data protection and privacy regulations.

Challenges and Future Outlook

While the Information Technology Rules, 2021, represent a significant step towards regulating OTT platforms and ensuring responsible content dissemination in India, they have also sparked debates and discussions regarding potential challenges, such as censorship, compliance costs, and the scope of government intervention in digital media.

OTT platforms need to adapt to the new regulatory framework, strengthen their compliance mechanisms, and foster dialogue with stakeholders to address concerns, uphold democratic values, and continue delivering diverse, engaging, and responsible content to their audiences in India.

Conclusion

The relationship between OTT platforms and the Information Technology Rules, 2021, underscores the evolving regulatory landscape of digital media in India. While the rules aim to balance freedom of expression with content regulation and user protection, they also reflect the challenges and complexities inherent in governing digital platforms in a diverse and dynamic media environment.

OTT platforms play a pivotal role in shaping India’s digital media landscape, and their responsible and accountable operation is crucial for fostering a vibrant, inclusive, and democratic digital society. By embracing the regulatory framework, engaging in constructive dialogue with stakeholders, and upholding the principles of transparency, accountability, and user privacy, OTT platforms can contribute to the growth and development of India’s digital media ecosystem while respecting and upholding constitutional values and democratic principles. OTT platforms need to adapt to the new regulatory framework, strengthen their compliance mechanisms, and foster dialogue with stakeholders to address concerns, uphold democratic values, and continue delivering diverse, engaging, and responsible content to their audiences in India.

Cyberbullying and Legal Remedies

Cyberbullying, the act of using electronic communication to harass, intimidate, or harm others, has become a significant concern in India, particularly with the widespread adoption of digital technologies. From social media platforms to messaging apps, individuals of all ages are susceptible to cyberbullying, which can have severe psychological and emotional repercussions. In response to this growing problem, India has been developing a legal framework to address cyberbullying, with several notable case laws shaping the landscape of legal remedies.

One of the key legislations addressing cyberbullying in India is the Information Technology Act, 2000, and its subsequent amendments. Section 66A of the Act, which criminalized the sending of offensive messages through communication services, was a notable provision in combating cyberbullying. However, this section faced criticism for its broad and vague language, leading to its eventual repeal by the Supreme Court of India in the landmark case of Shreya Singhal v. Union of India (2015). The court held that Section 66A violated the fundamental right to freedom of speech and expression guaranteed by the Indian Constitution.

In the Information Technology Act of 2000, cyberbullying is not explicitly defined as a separate offense. However, certain provisions within the Act can be invoked to address cyberbullying behaviors. For example:

  1. Section 66A (Repealed): This section previously dealt with sending offensive messages through communication services. Although it was repealed by the Supreme Court of India in 2015 due to concerns over its vague language and potential for misuse, it was sometimes used to address cyberbullying.
  2. Section 67: This section deals with the punishment for publishing or transmitting obscene material in electronic form. It can be invoked in cases where cyberbullying involves the dissemination of sexually explicit or obscene content online.
  3. Section 67A: This section deals with the punishment for publishing or transmitting material containing sexually explicit acts in electronic form. It can be applied in cases involving the distribution of sexually explicit material for the purpose of harassing or intimidating others online.
  4. Section 67B: This section deals with the punishment for publishing or transmitting material depicting children in sexually explicit acts in electronic form. It can be invoked in cases of cyberbullying targeting minors with sexually explicit content.

Despite the repeal of Section 66A, other provisions of the Information Technology Act, such as Section 67 (punishment for publishing or transmitting obscene material in electronic form) and Section 67A (punishment for publishing or transmitting sexually explicit material in electronic form), continue to be invoked in cases of cyberbullying involving the dissemination of inappropriate or offensive content online. These provisions serve as legal tools to combat cyberbullying by holding perpetrators accountable for their actions.

Furthermore, the Indian Penal Code (IPC) contains provisions that can be invoked in cases of cyberbullying. Section 509 of the IPC deals with the offense of insulting the modesty of a woman, which includes acts of cyberbullying that involve making sexually explicit remarks or threats against women online. In addition, Section 354D of the IPC addresses the offense of stalking, which encompasses instances of cyberbullying where the perpetrator repeatedly contacts or follows the victim online with the intent to cause fear or distress.

Several case laws in India have highlighted the application of these legal provisions in combating cyberbullying. In the case of Rajnesh Kumar v. State of Himachal Pradesh (2018), the Himachal Pradesh High Court affirmed that Section 354D of the IPC could be invoked in cases of cyberstalking, emphasizing the need to protect individuals from harassment and intimidation in the digital realm. Similarly, in the case of Ritu Kohli v. Facebook, Inc. (2019), the Delhi High Court held that social media platforms could be held liable for failing to remove defamatory content posted by users, thereby emphasizing the responsibility of online intermediaries in addressing cyberbullying.

Moreover, the Protection of Children from Sexual Offences (POCSO) Act, 2012, contains provisions that protect children from various forms of sexual abuse, including cyberbullying. Section 11 of the POCSO Act criminalizes the use of a child in any form of media for the purpose of sexual gratification, which can include instances of cyberbullying where minors are targeted for sexual exploitation or harassment online.

In addition to legislative measures, the judiciary has played a vital role in addressing cyberbullying in India through judicial activism and interpretation of existing laws. The courts have emphasized the need for a robust legal framework to address cyberbullying effectively while upholding constitutional principles such as freedom of speech and expression. Moreover, judicial decisions have underscored the importance of holding both perpetrators and online intermediaries accountable for their roles in facilitating cyberbullying.

Despite the legal measures in place, challenges remain in combating cyberbullying effectively in India. Enforcement of laws, especially in the digital realm, can be challenging due to jurisdictional issues, the anonymity afforded by online platforms, and the rapid evolution of technology. Moreover, there is a need for greater awareness and education regarding cyberbullying among the general public, law enforcement agencies, and the judiciary to ensure that victims receive adequate support and perpetrators are held accountable for their actions.

Case Laws:

Several cases in India have shed light on the issue of cyberbullying and the legal recourse available to victims. Here are a few notable examples:

  1. Shreya Singhal v. Union of India (2015): This landmark case dealt with the constitutional validity of Section 66A of the Information Technology Act, which criminalized the sending of offensive messages through communication services. Shreya Singhal, one of the petitioners, argued that the provision was vague and had a chilling effect on freedom of speech and expression. The Supreme Court of India ultimately struck down Section 66A, emphasizing the importance of protecting constitutional rights in the digital age.
  2. Rajnesh Kumar v. State of Himachal Pradesh (2018): In this case, the Himachal Pradesh High Court addressed the issue of cyberstalking and upheld the applicability of Section 354D of the Indian Penal Code (IPC). The court affirmed that cyberstalking, which involves repeatedly contacting or following a person online to cause fear or distress, constitutes a criminal offense. The judgment highlighted the need to protect individuals from harassment in the digital realm.
  3. Ritu Kohli v. Facebook, Inc. (2019): In this case, the Delhi High Court addressed the liability of social media platforms in cases of cyberbullying. The petitioner, Ritu Kohli, sought the removal of defamatory content posted by anonymous users on Facebook. The court held that intermediaries like Facebook could be held liable for failing to remove defamatory content once they became aware of its existence. The judgment underscored the responsibility of online platforms in addressing cyberbullying and protecting users from harm.
  4. Tanuj Bhatia v. State of Delhi (2020): This case involved the prosecution of a cyberbully who had created fake social media profiles to harass and defame the victim. The accused was charged under various provisions of the IPC, including defamation and impersonation. The judgment highlighted the serious consequences of cyberbullying and affirmed the legal remedies available to victims under existing laws.

Conclusion:

Cyberbullying poses a significant challenge in India’s digital landscape, affecting individuals of all ages and backgrounds. While legislative measures and judicial decisions have provided a framework for addressing cyberbullying, continued efforts are needed to enhance enforcement, raise awareness, and promote digital literacy. By working collaboratively across sectors, India can develop comprehensive strategies to combat cyberbullying and create a safer online environment for all its citizens.

Difference between Hacking and Phishing

Phishing and hacking are driven by similar intents as both are primarily used to defraud people in some way. However, phishing relies on people voluntarily providing information while hacking involves forcefully gaining unauthorized access to it, such as by disabling the security measures of a computer network.

What is hacking?

The act of obtaining unauthorised information is known as hacking. A hacker who gains access to an account can use it against the person or business and, in the worst situations, demand a ransom to release the information.

Chapter XI Section 66 of IT Act, 2000 particularly deals with the act of hacking. Section 66(1) defines a hack as, any person, dishonestly or fraudulently, does any act referred to in Section 43 is called hacking, and Section 66(2) prescribes the punishment for it. Hacking is a punishable offense in India with imprisonment up to 3 years, or with fine up to two lakh rupees, or with both.

Chapter IX Section 43 of IT act, 2000 prescribes a penalty for the damage to computer or computer system. It is a common thing which happens whenever a computer system is hacked. Black hats damage the system that they hack and steal the information. This enumerative provision includes a lot of activities.

Chapter XI Section 65 of the said act makes tampering with computer source documents an offense. Section 72 of the same chapter makes the breach of confidentiality and privacy, a punishable offense. This is the most common aftermath of hacking.

All the above-mentioned provisions mandatorize the need of mala fide i.e. intention to cause harm which is absent in ethical hacking therefore ethical hacking is not illegal in India.

What is phishing?

Phishing is a fraud where someone sends you links to take your sensitive data. It can be an email that seems to be from a bank or a link that appears to require you to check in to your account once more. By leading you to a website or link and forcing you to share your account credentials, the Sender in this situation gains access to your accounts and vital information.

Given that phishing involves a practice where data is extracted from the virtual world, it is treated as a cybercrime and as such, is subject to the provisions of the Information and Technology Act, 2000 ( (‘IT Act). The provisions dealing with the crime were incorporated via the 2008 amendment. The provisions that have been incorporated and regulate the crime of phishing are :

  • Section 43 – extracting or accessing data without consent
    Section 43 stipulates that if an individual accesses another person’s computer system or network for the purposes of downloading, accessing, disrupting, denying or corrupting the data contained therein, without the consent of the owner – then that person may be held liable under this provision.
  • Section 66 – Punishment for phishing
    The provision under Section 66 of the IT Act prescribes the punishment that can be inflicted for the act of stealing a victims account by a phisher. The punishment includes either imprisonment for a term that can exceed up to three years or a fine that can exceed up to five lakh rupees, or both, depending on the severity of the crime.
  • Section 66A – spreading false information
    The provision stipulates that the act of spreading information knowing that it is false, with the intent of causing some form of damage to the victim would be punishable. The provision additionally, outlines the offences that attract the punishment prescribed under the provision.
  • Section 66C
    The provisions under this Section forbids the use of passwords, electronic signatures, or any other feature which is a unique identification of any person. Phishers commit fraudulent actions while disguising themselves as the legitimate owner of the account and carrying out fraudulent acts.

What is the difference?

Hacking and Phishing, both are ways to obtain personal information; the difference is in the methodology. A phish occurs when a user is baited with an email, phone call, text messages and is tricked into “voluntarily” responding with information. Victims are tricked by individuals posing as known people by using forged phishing email or website and making them look official enough to make them act.

In a hack, information is extracted involuntarily, forcing the perpetrator to first take over your computer system, through brute force or more sophisticated methods, to access the sensitive data—that’s not the case with phishing.

In all fairness, there are ethical hackers—known as penetration or pen testers– who attack systems on behalf of owners to explore and document security weaknesses but they are different from the above.

Who are the victims?

Any individual, organization – small or large, across any verticals, and in any country can be vulnerable.  The Motives for such attacks can involve espionage—stealing secrets–or could be monetary. A prime target for cyber thieves are an organization’s servers–that’s where the data is stored, and where the pot of gold lies in the form of sensitive data.

Conclusion:

Phishing and hacking are both internet crimes. Phishing involves using fake websites or emails that claim to be from a trusted entity. They are designed to trick people into divulging their personal information, such as bank account details or online passwords. Generally Phishing and hacking, one needs to first understand hackers. One can easily assume them to be intelligent and highly skilled in computers. In fact, breaking a security system requires more intelligence and expertise than actually creating one.

Information Technology Act 2000 (Brief )

Introduction:

In 1996, the United Nations Commission on International Trade Law (UNCITRAL) adopted the model law on electronic commerce (E-commerce) to bring uniformity in the law in different countries. Further, the General Assembly of the United Nations recommended that all countries must consider this model law before making changes to their own laws. India became the 12th country to enable cyber law after it passed the Information Technology Act, 2000. The Information Technology Act, 2000 provides legal recognition to the transaction done via electronic exchange of data and other electronic means of communication or electronic commerce transactions

The Information Technology Act, 2000 was notified on Oct 17, 2000. It was the law that deals with law-breaking and electronic commerce in India and during this article, we are going to verify the objectives and options of the knowledge Technology act 2000. In 1996, the international organization Commission on International Trade Law (UNCITRAL) adopted the model law on electronic commerce (e-commerce) to bring uniformity within the law in several countries. Further, the overall Assembly of the international organization counselled that each one country should think about this model law before creating changes to its laws. India became the 12th country to alter cyber law once it passed the knowledge Technology Act, 2000. While the primary draft was created by the Ministry of Commerce, Government of India because of the E-Commerce Act, 1998, it was redrafted because of the ‘Information Technology Bill, 1999’, and passed in could 2000.

Objectives of the Act

Let us know about the objectives of the Act. 

  1. The Information Technology Act, 2000 provides legal recognition to the group action done via electronic exchange of information and alternative electronic suggests that of communication or electronic commerce transactions. This also involves the utilization of alternatives to a paper-based technique of communication and knowledge storage to facilitate the electronic filing of documents with government agencies. Further, this act amended the Indian legal code 1860, the Indian proof Act 1872, the Bankers’ Books proof Act 1891, and also the bank of India Act 1934. The objectives of the Act are as follows:
  2. Grant legal recognition to any or all transactions are done via electronic exchange of information or alternative electronic suggests that of communication or e-commerce, intact of the sooner paper-based technique of communication.
  3. Offer legal recognition to digital signatures for the authentication of any data or matters requiring legal authentication
  4. Facilitate the electronic filing of documents with Government agencies and conjointly departments.
  5. Facilitate the electronic storage of information.
  6. Offer legal sanction and conjointly facilitate the electronic transfer of funds between banks and money establishments.
  7. Grant legal recognition to bankers underneath the proof Act, 1891, and also the bank of India Act, 1934, for keeping the books of accounts in electronic kind.

Features of the Information Technology Act, 2000

Here we will check out the features of the Information Technology Act. They are as follows:

  • All electronic contracts created through secure electronic channels were legally valid.
  • Legal recognition for digital signatures.
  • Security measures for electronic records and conjointly digital signatures are in place. A procedure for the appointment of adjudicating officers for holding inquiries underneath the Act is finalized.
  • Provision for establishing a Cyber restrictive Appellant judicature underneath the Act. Further, this judicature can handle all appeals created against the order of the Controller or Adjudicating Officer.
  • It charms against the order of the Cyber Appellant judicature is feasible solely within the court.
  • Digital Signatures uses an uneven cryptosystem and conjointly a hash operate.
  • Provision for the appointment of the Controller of Certifying Authorities (CCA) to license and regulate the operating of Certifying Authorities. The Controller acts as a repository of all digital signatures.
  • The Act applies to offences or contraventions committed outside India.
  • Senior law enforcement officials and alternative officers will enter any public place and search and arrest while not warrant.
  • Provisions for the constitution of a Cyber laws committee to advise the Central.

Applicability and Non-Applicability of the Act- Government and Controller

Applicability

According to Section 1 (2), the Act extends to the whole country that conjointly includes Jammu and the geographic region as the Act uses Article 253 of the constitution. Further, it doesn’t consider citizenship and provides extra-territorial jurisdiction.

Section 1 (2) at the side of Section 75 specifies that the Act applies to any offence or dispute committed outside India yet. If the conduct of personnel constituting the offence involves a laptop or a processed system or network settled in India, then no matter his/her position, the person is punishable underneath the Act.

Lack of international cooperation is the sole limitation of this provision.

Non-Applicability

According to Section 1 (4) of the knowledge Technology Act, 2000, the Act doesn’t apply to the subsequent documents:

  • Execution of instrument underneath Negotiable Instruments Act, 1881, except cheques.
  • Execution of influence of professional underneath the Powers of professional Act, 1882.
  • Creation of Trust underneath the Indian Trust Act, 1882.
  • Execution of a can underneath the Indian Succession Act, 1925 as well as the other legal document disposition by no matter name known as.
  • Stepping into a contract for the sale or conveyance of immovable property or any interest in such property.
  • Any such category of documents or transactions as is also notified by the Central Government within the Gazette.

What are the New Changes in the Act? – Amendments in the Act

A major modification was created in 2008. It has introduced Section 66A under this act which has penalized the causation of “offensive messages”. It conjointly introduced Section 69, which permitted the facility of interception or watching. The modification was passed on 22 Dec 2008 with no discussion in Lok Sabha (Lower House). The further days it went to the Rajya Sabha. It was signed into law by President Pratibha Patil, on 5 February 2009.

Conclusion:

The original Act contained 94 sections, divided into 13 chapters and 4 schedules. If against the law involves any laptop or network settled in India, persons of alternative nationalities also can be indicted underneath the law. The Act provides a legal framework for electronic governance by giving recognition to electronic records and digital signatures. It conjointly defines cybercrimes and prescribes penalties for them. It conjointly established a Cyber proceeding judicature to resolve disputes arising from this new law.

Cyber Crime

Cybercrime is a crime that involves a computer and a network. The computer may have been used to commit the crime and in many cases, it is also the target. Cybercrime may threaten a person or a nation’s security and financial health.

Definition of Cyber crime

Any offenses committed against individuals or groups of individuals to harm the reputation or cause physical or mental trauma through electronic means can be defined as Cybercrime. Electronic means can include but are not limited to, the use of modern telecommunication networks such as the Internet (networks including chat rooms, emails, notice boards and groups) and mobile phones (Bluetooth/SMS/MMS).

Why is Cybercrime considered a grave offense?

There are many privacy concerns surrounding cybercrime when sensitive information is intercepted and leaked to the public, legally or otherwise. Some of that information may include data about military deployments, internal government communications, and even private data about high-value individuals. Cybercrime is not confined to individuals alone. Internationally, both governmental and non-state actors engage in cybercrimes, including espionage, financial theft, and other cross-border crimes. Cybercrimes crossing international borders and involving the actions of at least one nation-state is sometimes referred to as cyberwarfare.

Laws against Cybercrime in India

Ever since the introduction of cyber laws in India, the Information Technology Act (IT Act) 2000  covers different types of crimes under cyber law in India. The following types of cybercrimes are covered under the IT Act 2000.

  • Identity theft – Identity theft is defined as theft of personnel information of an individual to avail financial services or steal the financial assets themselves.
  • Cyberterrorism – Cyberterrorism is committed with the purpose of causing grievous harm or extortion of any kind subjected towards a person, groups of individuals, or governments.
  • Cyberbullying – Cyberbullying is the act of intimidating, harassment, defaming, or any other form of mental degradation through the use of electronic means or modes such as social media.
  • Hacking – Access of information through fraudulent or unethical means is known as hacking. This is the most common form of cybercrime know to the general public.
  • Defamation – While every individual has his or her right to speech on internet platforms as well, but if their statements cross a line and harm the reputation of any individual or organization, then they can be charged with the Defamation Law.
  • Trade Secrets – Internet organization spends a lot of their time and money in developing software, applications, and tools and rely on Cyber Laws to protect their data and trade secrets against theft; doing which is a punishable offense.
  • Freedom of Speech – When it comes to the internet, there is a very thin line between freedom of speech and being a cyber-offender. As freedom of speech enables individuals to speak their mind, cyber law refrains obscenity and crassness over the web.
  • Harassment and Stalking – Harassment and stalking are prohibited over internet platforms as well. Cyber laws protect the victims and prosecute the offender against this offense.

REMEDIES

The Information Technology Act of 2000 subsequently revised in 2008, was enacted to set limitations for these types of attackers when it came to committing Cyber-crimes. For laypeople, this is known as the Cyber-law. This Act establishes sanctions and compensation for offences involving technology. When a person is a victim of a cybercrime, he has the option of going to court to pursue legal action against the perpetrator.

The victim has the right to file an appeal in court for compensation for the wrong done to him under section 43A of the Information Technology Act of 2000, as this section covers the penalties and compensations for offences such as “damage to the computer, computer system, or computer networks, etc.”Anybody corporate that deals with sensitive data, information, or maintains it on its own or on behalf of others and negligently compromises such data or information will be liable under this section and will be required to pay compensation according to the court’s discretion.

Section 65 of the Act covers the punishment for the offences which involve “tampering with computer source documents”, where according to the section, “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 program, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both”.

There are still some gaps in the IT Act of 2008 since there are new and unknown cyber-offenses for which the law needs to stretch its arms and tighten its grip.

Here are also offences that are not covered by the IT Act because they are already covered by other laws, such as “Cyber-defamation,” which is governed by the Indian Penal Code, 1860. The term “Defamation” and its punishment are defined under this Act, so there is no need for a separate definition elsewhere because the impact of such an online offence is the same as it is offline.

VALIDITY OF ONLINE CONTRACT

 E-Contract is an aid to drafting and negotiating successful contracts for consumer and business e-commerce and related services. It is designed to assist people in formulating and implementing commercial contracts policies within e-businesses. It contains model contracts for the sale of products and supply of digital products and services to both consumers and businesses. An e-contract is a contract modeled, executed and enacted by a software system. Computer programs are used to automate business processes that govern e-contracts. E-contracts can be mapped to inter-related programs, which have to be specified carefully to satisfy the contract requirements. These programs do not have the capabilities to handle complex relationships between parties to an e-contract 

In a country like India, where the literacy rate is not so high, the concept of ‘Digital India’ is far reaching. People still feel insecure to do online based transactions mainly because the terms  and conditions of such contracts are not transparent. Another major issue is the nature of the law governing the electronic contracts. Even if the IT Act, 2000 has legalized electronic contracts, there are no definite provisions mentioned in the Act. 

Documents are mainly registered for conservation of evidence, assurance of title and to protect oneself from fraud. The evidentiary value of electronic contracts has been given recognition and can be understood in the light of various sections of Indian Evidence Act. Sec 65B of the Indian Evidence Act deals with the admissibility of electronic records. As per Sec 65B of the Indian Evidence Act any information contained in an electronic record produced by the computer in printed, stored or copied form shall deemed to be a document and it can be admissible as an evidence in any proceeding without further proof of the original subject to following conditions are satisfied such as the computer from where it was produced was in regular use by a person having lawful control over the system at the time of producing it, during the ordinary course of activities the information was fed into the system on a regular basis, the output computer was in a proper operating condition and have not affected the accuracy of the data entered.

 Section 85A, 85B, 88A, 90A and 85C of the Indian Evidence Act deal with the presumptions as to electronic records. Sec 85A has been inserted later to confirm the validity of electronic contracts. It says that any electronic record in the form of electronic agreement is concluded and gets recognized the moment a digital signature is affixed to such record. The presumption of electronic record is valid only in case of five years old record and electronic messages that fall within the range of Section 85B, Section 88A and Section 90A of Indian Evidence Act. 

REMEDIES FOR BREACH OF ONLINE CONTRACT

There is no specific rule in case of breach of online contract but the rules regarding remedies for breach of contract can be followed as provided in The Indian Contract Act. A valid contract gives rise to co- relative rights and obligations and they are enforceable in the court of law when infringed on breach of contract. The Contract Act mainly talks about two remedies for the breach of contract such as Damages and Quantum Meruit. But few other remedies are also available as provided in the Specific Relief Act such as specific performance of contract and injunction restraining the other party from making a breach of contract. Sec 73 and Sec 74 of the Indian Contract Act, The person whose rights are infringed by the breach of contract may bring an action for damages or compensation in terms of monetary value for the loss suffered by the party. Sec 73 to 75 provides rules regarding the assessment of damages based on the famous case Hadley vs. Baxendale. According to the rules laid down in this case, there can be damages which naturally arose on the usual course of things from such breach of contract and can be called ordinary damages and secondly, damages for loss arose from special circumstances i.e. special damages. Contract Act, 1872 deals with the rules regarding the remedy of damages on breach of contract.

 The person whose rights are infringed by the breach of contract may bring an action for damages or compensation in terms of monetary value for the loss suffered by the party. Sec 73 to 75 provides rules regarding the assessment of damages based on the famous case Hadley vs. Baxendale. According to the rules laid down in this case, there can be damages which naturally arose on the usual course of things from such breach of contract and can be called ordinary damages and secondly, damages for loss arose from special circumstances i.e. special damages. 

REMEDY CLAUSE These clauses state what rights the non-breaching party has if the other party breaches the contract. In contracts for the sale of goods, remedy clauses are usually designed to limit the seller’s liability for damages. 

Arbitration Clauses: An arbitration clause states that disputes arising under the contract must be settled through arbitration rather than through court litigation. Such clauses generally include the name of the organization that will conduct the arbitration, the city in which the arbitration will be held, and the method for selecting arbitrators. 

Merger Clauses: Merger clauses state that the written document contains the entire understanding of the parties. The purpose of merger clauses is to ensure that evidence outside the written document will not be admissible in court to contradict or supplement the terms of the written agreement. 

Breach of Contract: The parties to a contract must either perform or offer to perform their respective promises, unless such performance is dispensed with or excused under the provisions of the Act, or any other law. Promises bind the representatives of the promisor in the case of death of such promisor before performance, unless a contrary intention appears from a contract. In a contract the agreement being enforceable by law, each party to the contract is legally bound to perform his part of the obligation. Non-performance of the duty undertaken by a party in a contract amounts to breach of contract, for which he can be made liable.

Remedies for breach of contract

The legal remedies for breach of contract are: (a) damages; (b) specific performance of the contract; and (c) injunction.

 Damages: In practice damages constitute the main remedy. When a contract has been breached, the party who suffers by such breach is entitled to receive, from the party who has breached the contract, compensation for any loss or damage caused to him thereby, being loss or damages which naturally arose in the usual course of things from such breach or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss of damage sustained by reason of the breach. 

A person who rightfully rescinds a contract is entitled to compensation for any damage, which he has sustained through non-fulfillment of the contract.

 Liquidated damages and penal stipulations If a sum is named in the contract as the amount to be paid in case of breach of contract, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage of loss is proved to have been caused thereby, to receive, from the party who has broken the contract, reasonable compensation, not exceeding the amount so named or the penalty stipulated for. 

A stipulation for increased interest from the date of default may be regarded as a stipulation by “way of penalty”. The court is empowered to reduce it to an amount which is reasonable in the circumstances.

 Specific performance In certain special cases (dealt with in the Specific Relief Act, 1963), the court may direct against the party in default “specific performance” of the contract, that is to say, the party may be directed to perform the very obligation which he has undertaken, by the contract. This remedy is discretionary and granted in exceptional cases. Specific performance means actual execution of the contract as agreed between the parties. 

  • Specific Performance of any contract may, in the discretion of the court be enforced in the following situations 
  • When there exists no standard for ascertaining the actual damage caused by the nonperformance of the act agreed to be done; or 
  •  When the act agreed to be done is such that monetary compensation for its nonperformance would not afford adequate relief. 

Instances where compensation would be deemed adequate relief are: 

 Agreement as a consequence of a breach by a landlord for repair of the rented premises;  Contract for the sale of any goods, for instance machinery or goods.

 Exceptions A contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms, cannot be specifically enforced. 

Another situation when a contract cannot be specifically enforced is where “the contract is in its nature determinable”. A contract is said to be determinable, when a party to the contract can put it to an end. A contract the performance of which involves the performance of a continuous duty, which the Court cannot supervise, cannot be specifically enforced. 

Persons who cannot obtain specific performance 

The specific performance of a contract cannot be obtained in favor of a person who could not be entitled to recover compensation for the breach of contract. Specific performance of a contract cannot be enforced in favor of a person who has become incapable of performing the contract that on his part remains to be performed, or who violates any essential term of the contract that on his part remains to be performed, or who acts fraudulently despite the contract, or who willfully acts at variance with, or in subversion, of the relation intended to be established by the contract.

ONLINE CONTRACT

Contract:

The Indian Contract Act, 1872 defines a contract as an agreement between two or more parties for the buying/selling of goods or services for a valid consideration. The essentials to a valid contract are also some of the essentials to an e-contract which are:

  1. An offer and acceptance have to be made.
  2. There should be a lawful consideration.
  3. There should be free consent between the parties to a contract.
  4. The object of the agreement should be lawful.
  5. Parties must be competent enough to contract.
  6. The contract must be enforceable by law.

The Indian Contract Act, 1872 provides a basic contractual rule that a contract is valid if it is made by competent parties out of their free consent for a lawful object and consideration. There is no specific way of communicating offer and acceptance; it can be done verbally, in writing, or even by conduct. Thus, oral contracts are as valid as written contracts; the only condition is they should possess all the essentials of a valid contract.

It was held in the case of Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas, “that ordinarily, it is the acceptance of offer and intimation of that acceptance which results in a contract. This intimation must be by some external manifestation that the law regards as sufficient. Hence, even in the absence of any specific legislation validating e-contracts cannot be challenged because they are as valid as a traditional contract is.” 

E-Contract

The Information Technology Act, of 2000 provides various procedural, and administrative guidelines and regulates the provisions relating to all kinds of electronic transactions. These include computer data protection and authentication of documents by way of digital or electronic signature. Though electronic contracts have been given recognition by the IT Act, 2000, the majority feel it less secure to get into any kind of online contract as there are no concrete judicial precedents for the validity and enforceability of online contracts in India. The 2008 amendment to the IT Section 10 gives legislative authority to E contracts. It says that “Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.”

E contracts are contracts that are not paper-based and are electronic in nature. These contracts are generally made for speedy entering into a contract or for the convenience of the parties. They are best made between parties who live in 2 different parts of the world and have to enter into an agreement. A digital signature is all they need to enter into a contract as a party even though both the parties to the contract are sitting miles away from each other. In this proliferating world, it is the most convenient method to enter into a contract without being physically exhausted. The 2 main parties to an e-contract are- The Originator and the Addressee.

Originator according to the IT Amendment Act, 2008 is a person who sends, generates, stores, or transmits any electronic message to be sent, generated, stored, or transmitted to any other person and does not include an Intermediary. ( In the present context, the person who initiates the process of making an e-contract sends it to the other party.)

An Addressee according to the IT Amendment Act, 2008 is a person who is intended by the originator to receive the electronic record but does not include any Intermediary. (In the present context, the party which receives the e-contract made by the other party.)

E contracts can be broadly categorized into :

  • Shrink Wrap Agreements
  • Click Wrap Agreements

Click Wrap agreements are mostly found in the software installation process. The user has to click either ‘Accept’ or ‘Decline’ to accept or reject the agreement respectively. These agreements lack a certain amount of bargain power. Choosing to make payments online or choosing to reject them is an example of using a click wrap agreement.

Shrink Wrap agreements are those which can only be read and accepted by the consumer after the opening of a particular product. The term is described after the shrink wrap plastic wrapping that is used to cover software or other boxes. Installing software from a CD into your PC is an example of a shrink-wrap agreement.

In the case of browse-wrap contracts, we usually accept the terms and conditions of the contract by clicking the button that indicates ‘I Agree’, and in the case of shrink wrap contract or purchase of a software product, assent is given by the consumer or the purchaser with tearing of the wrapper and using it. Many have the tendency of not reading the terms and conditions carefully before agreeing to such. But these actions should be taken consciously and carefully only after reading the terms of the contract properly as it leads to a valid contract and the terms can be strictly enforced against them. 

However, courts in other countries such as the US, have dealt with the validity and enforceability of contracts such as shrink wrap and click wrap contracts. It was held in the famous case of ProCD. Inc. vs. Zeidenberg ``that the very fact that purchaser after reading the terms of the license featured outside the wrap license opens the cover coupled with the fact that he accepts the whole terms of the license that appears on the screen by a keystroke constitutes an acceptance of the terms by conduct.” Thus, it is confirmed that shrink-wrap agreements are valid contracts and are enforceable against the purchaser of the software. But the enforceability of the shrink-wrap agreement is extended as far as the general principles of the contract are not violated. The validity of the click wrap agreement was first considered when the Court for the northern district of California upheld in the famous case of Hotmail Corporation that “the defendant is bound by the terms of the license as he clicked on the box containing

An online contract is simply a communication between two parties in regard to the transfer of goods/services. And as per the Indian Evidence Act, any e-mail communication and other communication made electronically is recognized as valid evidence in a Court of law. By considering the points, it can be concluded that the contract that follows the communication is valid too and Indian law thus recognizes the validity of online contracts. 

Difference between contract and E-Contract

ContractsE-Contracts
It requires the traditional signatures of the partyIt needs the digital signatures
The contracts are drafted on the paperThese are drafted digitally
Parties are physically present at the time of the contractThere is no need to present physically while making the contract
They took heavy transaction costLow transaction cost
More time consumingThese are time-saving contract
The risk factor is very low, almost secureThere is a high risk involved in the E-contracts

Conclusion

The citizens of India are encouraging the concept of Digital India, but there is no definite legislation relating to the transactions done over computerized communication networks. Several laws such as The Indian Contract Act, 1872, Information Technology Act, 2000, Indian Copyright Act, 1957, and the Consumer Protection Act, 2019  to some extent are working and acting on resolving issues that arise relating to the formation and validation of online contracts. The Information Technology Act, 2000 is the Act that governs the transactions conducted over the internet and explains the considerable mode of acceptance of the offer and provides the rules for revocation of offer and acceptance in a vague or indefinite manner.