Cyber Security: A Legal Perspective: Dr. Sudhir Kumar Sharma
Cyber Security: A Legal Perspective: Dr. Sudhir Kumar Sharma
Cyber Security: A Legal Perspective: Dr. Sudhir Kumar Sharma
Abstract
Computer technology provides a boost to the human life and adds accuracy,
speed and efficiency. Computer crime is a great hurdle in the development of a
country. The rapid growth of cyber crime makes cyber security as an
unavoidable part of our lives. Normally a person is concerned with the tools
and technologies used to prevent cyber crime. This paper emphasises on legal
response to cyber security and focuses on the importance of law against cyber
crime for achieving the cyber security in an indirect manner.
Keywords: Cyber crime, cyber security, information and communication
technologies, hacking etc.
1. INTRODUCTION
Nowadays, the term cyber crime is well known and needs no introduction. Crime is a
great hurdle in the development of a country. It adversely affects the members of the
society and lowers down the economic growth of the country. Computer technology
provides a boost to the human life and makes it easier and comfortable. It adds
accuracy, speed and efficiency to the life of human being. But a computer is exploited
by the criminals and its illegal use leads to cyber crime. To combat cyber crime, India
enacted the Information Technology Act,2000 which was drastically amended in the
year 2008 providing more powerful and stringent law.
Cyber crime is a crime done with the misuse of information technology for
unauthorized or illegal access, electronic fraud; like deletion, alteration, interception,
concealment of data, forgery etc.. Cyber crime is an international crime as it has been
affected by the global revolution in information and communication technologies
(ICTs). It has affected the global community. It would be unlawful act where the
2 Dr. Sudhir Kumar Sharma
computer is either a tool or a target or both. Continuous attempts have been made to
specify different types of cybercrime, their detection and preventive methods.
Cyber crimes have become the most potentially damaging threat to IT-related
activities, transactions, and assets. Unfortunately, some organizations do not seem to
be much alert to detect, address, or protect themselves from these threats.
From the above graph it is very evident that almost in the every region of the world
the penetration rate is very high which warrants to take steps for cyber security. Many
tools and techniques have been used regularly by the computer experts for achieving
the cyber security. Cyber security plays an important role in age of information
technology and internet services.
In the early ages the people were trying to use new tools and technologies for cyber
security. But they realized that law could also be helpful to achieve cyber security.
(1) Section 499 of IPC. Defamation. Whoever, by words either spoken or intended
to be read, or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm, or knowing or having reason to
believe that such imputation will harm, the reputation of such person, is said to
defame that person. However, there are 10 exceptions viz., imputation of truth
4 Dr. Sudhir Kumar Sharma
(2) Section 469 of IPC. Forgery for purpose of harming reputation. Whoever
commits forgery, intending that the document or electronic document forged shall
harm the reputation of any party, or knowing that it is likely to be used for that
purpose, shall be punished with imprisonment of either description for a term which
may extend to three years, and shall also be liable to fine.
The phrase “intending that the document forged” under Section 469 was replaced by
the phrase “intending that the document or electronic record forged” vide the
Information and Technology Act, 2000. The offence is cognizable, bailable, non-
compoundable. It is worthwhile to mention here that cognizable offence means an
offence for which a police officer may arrest without warrant. A warrant case means a
case relating to an offence which is punishable with death, imprisonment for life or
imprisonment for a term exceeding 2 years . A bailable offence means an offence
which is shown as bailable in the First Schedule appended to Code of Criminals
Procedure, 1973 or which is made bailable by any other law and non-bailable offence
means any other offence.
(3) Section 470 of IPC. Forged document or electronic record. A false document
or electronic record made wholly or in part by forgery is designated a forged
document or electronic record. The word ‘document or electronic record’ was
substituted for the word document vide Information Technology Act, 2000.
Cyber Security: A Legal Perspective 5
(4) Section 503 of IPC. Criminal intimidation. Whoever, threatens another with any
injury to his person, reputation or property, or to the person or reputation of any one
in whom that person is interested, with intent to cause alarm to that person, or to cause
that person to do any act which he is not legally bound to do, or to omit to do any act
which that person is legally entitled to do, as the means of avoiding the execution of
such threats, commits criminal intimidation. Section 503 of IPC covers the offence of
criminal intimidation by use of e-mails and other electronic means of
communication for threatening or intimidating any person or his property or
reputation. It is punishable with imprisonment for a term which may extend to 2
years, or fine, or both under section 504. The offence is non-cognizable, bailable and
compundable.
publishing the information about any person's location without prior permission or
consent, cyber terrorism, the acts of access to a computer resource without
authorization, such acts which can lead to any injury to any person or result in damage
or destruction of any property, while trying to contaminate the computer through any
virus like Trojan etc. The offences covered under Section 66 are cognizable and non-
bailable. It may be pointed here that the consequence of Section 43 of earlier Act was
civil in nature having its remedy in the form of damages and compensation only
Under Section 66 of the Amendment Act, 2008 if an act is done with mens rea i.e.
criminal intention, it will attract criminal liability resulting in imprisonment or fine or
both.
The law of defamation under Section 499 got extended to "Speech" and "Documents"
in electronic form with the enactment of the Information Technology Act, 2000.
Section 66A of the Information Technology Act, 2000. Any person who sends, by
means of a computer resource or a communication device:-
(i) any information that is grossly offensive or has menacing character; or
(ii) any content information which he knows to be false, but for the purpose of
causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred, or ill will, persistently makes by making use of such
computer resource or a communication device, or
(iii) any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or recipient
about the origin of such messages, shall be punishable with imprisonment for a term
which may extend to three years and with fine.
Section 66A of the Information Act, 2000 does not specifically deal with the offence
of cyber defamation but it makes punishable the act of sending grossly offensive
material for causing insult, injury or criminal intimidation.
adjudicating officer has the powers of a civil court and the Cyber Appellate Tribunal
has the powers vested in a civil court under the Code of Civil Procedure, 1973.
5.2 The Indian Evidence Act, 1872. Prior to enactment of ITAct, all evidences in a
court were in the physical form only. After enactment of ITAct, the electronic records
8 Dr. Sudhir Kumar Sharma
and documents were recognized. The definition part of Indian Evidence Act,1872 was
amended as "all documents including electronic records". Other words e.g. 'digital
signature', 'electronic form', 'secure electronic record' 'information' as used in the
ITAct, were also inserted to make them part of the evidentiary importance under the
Indian Evidence Act. The important amendment was seen by recognition of
admissibility of electronic records as evidence as enshrined in Section 65B of the
ITAct.
5.3 The Bankers' Books Evidence Act, 1891. Before passing of ITAct, a bank was
supposed to produce the original ledger or other physical register or document during
evidence before a court. After enactment of ITAct, the definition part of the Bankers'
Books Evidence Act stood amended as: "bankers’ books include ledgers, day-books,
cash books, account-books and all other books used in the ordinary business of a bank
whether kept in the written form or as printouts of data stored in a floppy, disc, tape or
any other form of electro-magnetic data storage device". When the books consist of
printouts of data stored in a floppy, disc, tape etc., a printout of such entry certified in
accordance with the provisions of Section 2A to the effect that it is a printout of such
entry or a copy of such printout by the principal accountant or branch manager; and a
certificate by a person in-charge of computer system containing a brief description of
the computer system and the particulars of the safeguards adopted by the system to
ensure that data are entered or any other operation performed only by authorized
persons; the safeguards adopted to prevent and detect unauthorized change of data and
the safeguards available to retrieve data that are lost due to systemic failure or any
other reasons. The above amendment in the provisions in Bankers’ Books Evidence
Act recognized the printout from a computer system and other electronic document as
a valid document during course of evidence, provided such printout or electronic
document is accompanied by a certificate in terms as mentioned above.
2
. 4680 of 2004 Criminal Complaint
3. I.A. No. 9089/2010 in CS(OS) 1407/2004
10 Dr. Sudhir Kumar Sharma
enter, search a public place for a cyber crime etc.. Since cyber crimes are basically
computer based crimes and therefore, if the mail of someone is hacked in one place by
accused sitting far in another State, determination of concerned police station, who
will take cognizance is difficult. It is seen that the investigators generally try to avoid
accepting such complaints on the ground of jurisdiction. Since the cyber crime is
geography-agnostic, borderless, territory-free and generally spread over territories of
several jurisdiction; it is necessary that proper training should be given to all persons
concerned. However, most of the cyber crimes in the nation are still brought under the
relevant sections of IPC read with the comparative sections of ITAct or the ITAAct
which enable the investigating agencies that even if the ITAct part of the case is lost,
the accused cannot escape from the IPC part.
7.2 Punishment For Teens and First Time Cyber Crime Offenders: Usually
teens involve in cyber crime unknowingly or which according to them is fun. So, it
was proposed by Home Ministry and IT department that first time offenders will be
handled with leniency and with remedies like warning, counseling and parental
guidance. It is submitted that the Government may consider the desirability of
enacting a suitable law on such offenders.
8. CONCLUSION
Society is happening more and more dependent upon technology and crimes based on
electronic offences are bound to increase. Cyber crime is rampant and is increasing
exponentially as the side effect of the excessive use and misuse of computers and
internet. Crime is a great hurdle in the development of a country and adversely affects
the members of the society and lowers down the economic growth of the country. The
Information Technology Act is a great savior to combat cyber crime. This Act is a
special Act to tackle the problem of cyber crime though offences relating to computer
also fall under the Indian Penal Code and other legislation in India. There is under
reporting of cyber crimes in the country. Cyber crime is committed almost every day
but only some of them get reported. The cyber crime cases reaching the court of law
are, therefore, very few. There are difficulties in collecting, storing and appreciating
Digital Evidence. The Act has a long way to go and promise to keep off the victims of
cyber crimes. Endeavor of law making machinery of the nation should be made
keeping in view the magnitude of crimes done by the fraudsters, to keep the crimes
lowest. Hence, it should be the persistent efforts of rulers and law makers to ensure
that governing laws of technology contain every aspect and issues of cyber crime and
further grow in continuous and healthy manner to keep constant vigil and check over
the related crimes.
Cyber Security: A Legal Perspective 11
REFERENCES
[1] Gaur, K.D., Text book on Indian Penal Code, Fifth edition, 2014, Universal
Law Publishing Company Pvt. Limited, New Delhi
[2] The Constitution of India
[3] The Information Technology Act, 2000
[4] The Information Technology (Amendment) Act, 2008
[5] Code of Criminal Procedure, 1973
[6] The Indian Evidence Act, 1872
[7] The Bankers’ Books Evidence Act, 1891
12 Dr. Sudhir Kumar Sharma