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Cyberlaw: The Indian Perspective

by Pavan Duggal

2002 Saakshar Law Publications, Delhi (saakshar@yahoo.com)

584 pages; Rs. 630/-

Review by Madanmohan Rao

This hefty book provides a comprehensive overview of the cyberlaw scenario in India, provides recommendations for upgrading the current cyberlaw acts, and contextualises these developments with respect to actual reported cases of cyberlaw in India.

The material is well researched and clearly presented, in 36 chapters. The author is a practising advocate of the Supreme Court of India, and is a prolific writer and speaker.

"Cyberlaw is important because it touches almost all aspects of transactions and activities concerning the Internet. Cyberlaw concerns everyone," Duggal begins.

Drawing on the UNCITRAL law on e-commerce, the Indian government drafted the IT Bill of 1999 which was then implemented as the IT Act 2000 in October 17, 2000. It targets three existing areas of law: contract, penal code, and evidence, and expands the provisions of the Indian Penal Code of 1860, the Indian Evidence Act of 1872, the Banker's Book Evidence Act of 1891, the Reserve Bank of India Act of 1934, and the Companies Act of 1956.

There are several positive aspects of the IT Act 2000: it provides legal infrastructure for e-commerce transactions, recognises electronic documents as legal entities, opens up business opportunities for digital certificate companies, paves the way for e-government transactions, and creates provisions against cybercrime. There are three kinds of cybercrime: against persons, against property, and against government.

But there are also several grey areas: international jurisdiction can be a tricky issue, there is no recognition of digital cash, domain names and trademarks are not addressed, privacy and taxation issues are not even raised, draconian powers can be conferred upon police officials, spamming is not recognised as an offense, and certain cybercrime categories are not included in the Act, such as cyberstalking or chat room abuse.

Ambiguities can also arise in precise identification of terms like office when data can be hosted abroad, due diligence of ISPs held liable for illegal content, cross-certification, and misuse of private encryption keys. The author calls for more education and orientation for police officers on the intricacies of cybercrime; there was a case of police officers carrying away computer monitors during a raid in Mumbai, thinking they were the actual computers!

The author advises corporates to be cautious in the way they use email since these messages can now be admissible as evidence in a court of law. They should also address privacy issues themselves on their Web sites in keeping with established international norms. Their domain names should be registered in multiple categories.

The author provides eye-opening examples of documented cyberlaw cases in India, such as hacking of the Mumbai police Web site, illegal sale of an Indian company's software by an Indian employee in the US, sites providing information about hacking and stealing credit card numbers, theft of account information from State Bank of India computers in Raigarh, crashing of Phoenix Global Solutions' main server by a disgruntled employee, harassment and stalking of women online, obscene messages victimising innocent women, hacking of a company's Web site by a fired employee, spamming against a UK site by a Pondicherry teenager, domain name disputes over Yahooindia.com and radiff.com, hacking of Indian news and government sites by Pakistani groups, and even sexually improper content posted on a Web site by a schoolboy in Delhi.

The analysis also draws on precedents abroad in legal areas like accessibility (Burger King v/s Rudezuitiz), trademark (Maritz v/s Marigold), domain name (Mo Mayo-San Francisco v/s Charles Memminger), and banned goods (Nazi goods on Yahoo France).

In the post September 11 scenario, the author also identifies challenges thrown up by the Internet, such as the use of steganography by terrorists to exchange secret messages, and the use of email to deliver threats to politicians, leaders and government officials in countries around the world including India.

"India has to face the challenges of cyberspace and its regulation in a very bold, prompt and decisive manner if it wants to become an IT superpower in the future," according to Duggal.

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Madanmohan Rao is the author of "The Asia-Pacific Internet Handbook" and can be reached at madan@techsparks.com

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