JURISPRUDENTIAL DIMENSIONS OF CYBERSPACE

Transcription

1 JURISPRUDENTIAL DIMENSIONS OF CYBERSPACE **KARTAR RAMNANI & M.SHIVASHRITHA INTRODUCTION Cyber Jurisprudence is an emerging subject around the world and has widened the growth of newer dimensions in the field of law. In today s world, there are several virtual space transactions including those of virtual property. However there are no strong laws to bridge the gap between the physical society and the virtual space, thus there is a need to develop a separate Cyber Jurisprudence to deal with such disputes. For instance, in India, if a dispute is regarding any virtual immovable property, according to physical laws the dispute must be subject to the Transfer of property Act and the Registration Act. However the Acts do not recognize virtual property and therefore it would be inappropriate to treat the dispute as a Transfer of Property Dispute. In the recent judicial reviews it has been observed that whenever there is an implementation of existing laws to cyber space to resolve any conflict, the laws of the existing laws have prevailed. Due to this, there increases a need for having laws to resolve the conflicts in cyber space; this becomes the bedrock of Cyber jurisprudence. But before understanding cyber jurisprudence, there is a need to understand the meaning of cyberspace, many terms can be used to describe the term cyberspace- before its evolution, it was described as computer crime, but with the pervasion of technology terms like high technology or information age were added to the definition. Also terms like cybercrime, net crime was also introduced with the advent of the internet. Currently however, there is no definite meaning or definition of the term cyberspace. According to the Oxford dictionary, cyberspace is- The notional environment in which communication over computer networks occurs. 1 According to Black s law dictionary, cyberspace is- The realm where computer communications and simulations are used on the internet. It is like the human psyche translated to the internet. 1 Oxford Dictionary 138

2 The objects are not physical and made up of data manipulation. The term was started by William Gibson in Presently the term cyberspace is used as a synonym for virtual reality, while some others use it as a synonym for the World Wide Web or for the internet as a whole, and also sometimes including the telephone, television and other forms of communication networks. In a general sense, cyberspace has three main categories Target cyberspace: A crime in which the computer is the target of the offence Tool cyberspace: A crime in which the computer is used as the main medium in committing the offence Computer incidental: A crime in which the computer plays a very minor role in the commission of the offence. 2 Black s Law Dictionary 139

3 VIRTUAL WORLD VERSUS REAL WORLD To under the difference between the virtual world and the real world there is no better example that the Bragg v. Linden Research Inc. case in the US. It was a law suit in physical space over a dispute of a virtual property. The law suit in question was filed by Mr Marc Bragg against an Internet Game company called Linden Lab based in San Francisco for alleged fraud, conversion, unjust enrichment and breach of contact. The conflict originated through an online game called Second Life by the Linden Lab wherein the players can buy, sell and lease land and other virtual assets through a currency called lindens which can later be converted into American Dollars. This case had opened up new doors for discussion on the nature of virtual property and the disputes regarding virtual acquisitions and transactions. 3 In future when similar problems arise, i.e., disputes regarding any virtual space transactions that have to be decided in the real world, there must be a link established between the virtual and the real world. Also the courts must be open to new concepts and laws relating to virtual property. This is of course the initial step, gradually there needs to be a development in the subject of Cyber Jurisprudence to deal with such disputes. For instance if the same case were to be bought before the Indian court, the nature of the property being land and the application of physical laws, the case would be subjected to the Transfer of property Act and the Registration Act. However both the Acts do not recognize the existence of virtual land as an immovable property and thus would not be valid under the law. In an alternative scenario, if the virtual land is a unit of property arising out of a legal agreement between the player and the company or between two players, the provision of contract laws can be applied, it will then conflict with the basic requirement of contracts- meeting of minds. The reason behind this is that the parties would be dealing with the unit as immovable property and not as anything else. If the buyer and seller were to act upon the matter as if they were buying and selling a piece of land, it would then be appropriate to adjudicate on the dispute by ignoring

4 this basic thought and consider it as something else. They would have the psychological satisfaction of using the unit of land for any purpose and experience both the pleasure and pain of ownership of the immovable property. It is this basic characteristic that differentiates the virtual from the real. Sometimes the characteristic features of virtual property can be compared to an Intellectual Property feature since the way the property is used is a creation in the minds of an imaginative player. 4 It would thus be inappropriate to treat such a dispute as a Contractual Property or a transfer of Property Dispute. The copyright laws under Intellectual Property would perhaps be the closest but even they would not fulfil the Meeting of the Minds test. Thus there is a need for rethinking our concepts in the physical society to match those of the virtual. This forms the first principle in the development of Cyber Jurisprudence. Though there is rapid advancement in cyberspace and immense dependence of digital technology by man, however the legal mechanism is not evolving fact enough to govern the rapid developments in this digital age. In the case of Seelan v. Presiding Officer, the Supreme Court observed that software being intangible is difficult to be codified in legal terms indiankanoon.org/doc/ /. 141

5 EMERGENCE OF CYBERSPACE The term cyberspace was first coined by the science fiction author William Gibson when he used the term to describe his vision of a computer network liking all machines, sources of information and also people, so that one could move, connect and navigate through a virtual space. The term cyber actually refers to cybernetics which derives its origin from the Greek verb Kubernao which means to steer or in present day to govern. 6 It connotes the idea of navigating through a space of electronic data and also control which can be achieved by manipulating those data. Legal issues relating to the internet in this contemporary world necessitates a new kind of jurisprudence- cyber jurisprudence. It gives us an analysis of law where there is no land and they may be virtual in nature and origin. This virtual world would require virtual policies, rules, contracts, disputes, virtual property- both tangible and intangible, virtual possession and virtual and virtual court. Cyber jurisprudence establishes a like with the laws and policies as well as the idea of cyber jurisdiction. It emphasizes the need to recognize cyber rules, laws and policies at an international level. The modern jurists have been analysing how to endow the rational pedestal of jurisprudence to this ruling so as to ascertain the utmost and exact definition of cyber jurisprudence. Today this is understood as- The principles of legal issues which exclusively regulates the internet and cyberspace. 6 Strate, Lance. "The varieties of cyberspace: Problems in definition and delimitation". Western Journal of Communication 63 (3): 382 3(1999). 142

6 ISSUES OF CYBERSPACE The beginning of the 1990 s saw the internet turning into a virtual super market with every type of goods and services available on the net on different terms and conditions. With the advent of e- commerce, e-banking and e-advertising the competition of the physical world also affected the virtual world. This led to the destruction of websites as they were hacked into and a lot of illicit information became available causing the defamation of highly reputed companies as well as persons. This also led to many disputes regarding trademarks and copyrights as they were one of the most commonly infringed upon. The term cyberspace was first coined when the Supreme Court of America made a comparison between cyber space and breach of law. 7 It was this which led to the division between jurists of cyberspace. The first group argued that that the laws of the real world could be extended to the virtual world as well. The other group argues that the traditional laws of the real world cannot be applied to the virtual world but rather separate laws and policies must be formulated. The following are some of the major issues faced in cyber jurisprudence- 1. Multiple Jurisdictions- Due to the large number of internet users 8 and the absence of geographic boundaries in the cyberspace, the cross border transactions of the internet face legal uncertainty. Due to this, the national laws become less meaningful and almost impossible to enforce in internet transactions. This also causes multiple overlapping of jurisdictions and laws which might further lead to a lot of confusion Legal Vacuum- Another hurdle for the legislators is the legal vacuum. The legislators are expected to find solutions to the existing problems in cyberspace; however there are no model laws that they can base it on. For instance, in 1996 the Utah Digital Signature Act was passed, it had to be drafted from vacuum. Due to this the legislator finds it difficult to enact a law for regulating the internet. 3. Problem of Policing- Cybercrimes have become a common phenomenon in the world today and an ordinary person does not seem to be able to understand the depth of such a problem. David J Davis, a detective inspector in UK said that when the first internet case 7 Reno v. American Civil Liberties Union, 521 U.S. 844 : 117 S. Ct (1997). 8 Christopher Reed, Internet Law: Text and Materials, Butterworths, London, p.268(2000). 9 Supra n

7 came up it was difficult to convince the magistrate to issue a search warrant. This lack of technical knowledge creates a hurdle to the existing problem. 10 Additionally due to lack of lack of full penetrations, many cybercrimes go unreported Expensive Process- To ensure proper cyber protection, the law enforcement must first have a sound knowledge of the subject and additionally the knowledge must be in tune with the technical advancement. 12 This training however is very expensive, besides the training the software required for forensic examinations are also expensive. Not only that, substantial fund be required in all aspects of the investigation. 5. Obtaining Digital Evidence- Another major issue faced while tracking cybercrime is with regard to obtaining the digital evidence. Goodman noted that- 13 not only can incriminating clues be hidden encrypted and virus laden, but they can be strewn anywhere in the world. The current internet specific laws relating to search and seizure of digital evidence are mostly ambiguous. When the evidence is to be prove in the court of law two principle situations must be examined. The first is- whether the offence is committed by the individual s use of the internet, in which case the concerned individual is the culprit. The second is- where the remote site holds the evidence of the offence. A common example is when the content of a website is illegal in any country. These penetrations can be proved from four sources- the computer, telephone bill, from internet service providers and from the remote sites. 10 David J Davis, Criminal law and the Internet: The Investigator s Perspective, Criminal Law Review Special Edition 49 (1998). 11 Ibid. 12 Supra n Id.,p

8 LAWS REGARDING CYBERSPACE While cyberspace is was a long developing concept, the internet we know today is only a recent one which began in the 1960 s. The evolution of cyber laws however began in early 1990 s. The present section is divided into two parts- cyber laws around the world and cyber laws in India. Global Perspective Though the evolution of cyber laws began in the 1990 s, early 1970 s saw countries adopting broad laws intended to protect individual s privacy. These laws were loosely based on the models introduced by the organization for economic cooperation and development and the council of Europe. The first data protection law was first introduced in Germany in 1970 which was followed by Sweden in 1973, US in 1974and France in On October , with an increase in the problem of cyber-squatting, the Internet Corporation Assigned names and Numbers (ICANN) approved the Uniform Domain Dispute Resolution Policy, for the purpose of resolving disputes regarding domain names. The following five main points were recognized under this model- 15 Apart from the above model another major convention with respect to cyber laws is the Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or simply the Budapest Convention. This report given by this convention was adopted by Europe s Committee of Ministers at its 109th Session in Indian Perspective The Information Technology revolution in India can trace its beginning in the year 1975, when the Indian Government decided to take effective steps for the development of information systems and utilization of informative resources. The National Informatics Centre under the Electronic Commission/Department of Electronics was the outcome of this view and was 14 D. Glenn Baker, Trespassers Will be Prosecuted- Computer Crimes in the 1990s, Vol. 1, CLJ (Computer Law Journal), 68 (1993). 15 Vivek Sood, Cyber Law Simplified, 230, Tata McGraw-Hill Publishing Co. Ltd, New Delhi,

9 assisted by United Nations Development Program (UNDP). 16 The formation of National Association of Software Services Companies in the early 1990s reflects on India s strength in this sector.30 Internet in India came in 1995 and after almost 5 years, India gets ready to legislate its first cyber law. 17 Information Technology Act 2000 With the advent of the Information Technology Act in 2000, 18 India became the 12th nation in the world to enact cyber laws. The United Nations Commission on the International Trade Law or the UNICITRAL adopted the Model Law on Electronic Commerce in the year 1996 in order to bring uniformity of law. In India, the Ministry of Commerce Government drafted its first legislation following the guidelines termed as E Commerce Act After a separate ministry was the legislation was re drafted and titled as Information Technology Bill This draft was placed in the Parliament in the year 1999 and was finally passed in the May This Act provides legal acknowledgement to the transactions carried out through means of electronic modes or electronic commerce which is an effective alternative to the traditional paper based and bulky methods of communication. With the passing of this Act certain other amendments were also made to certain existing Acts. 20 They are- The Indian Penal Code 1860 Indian Evidence Act 1872 The Bankers Book Evidence 1891 The Reserve Bank of India Act After the passing of this Act the next major change in cyber laws in India was the Amendment to the Act in the year Due to the criticism faced by the Information Technology Act of 2000, 16 Sherif Kamel, Electronic Business in Developing Countries- Opportunities and Challenges, 173, Idea Group Inc., London, ibid. 18 Yatinder Singh, Cyber Laws, 3, Universal Law Publishing Co., New Delhi, 4th edn., Sanjay Pandey, Curbing Cyber Crime- A Critique of Information Technology Act, 2000 and IT Act Amendment, 20 ibid. 21 Tapan Choure & Yogeshwar Shukla, Information Technology Industry in India, 98, Kalpaz Publications, Delhi, 2004.

10 an expert committee was set up by the government comprising of experts from the IT Industry and also legal experts. They submitted their report in the year 2005 and in the year 2006 the IT Amendment Bill was introduced in the Lok Sabha. This Bill was modified and was finally passed in the year The following were the changes made to the Act where eight new cyber offences were added- Sending offensive messages through a computer or mobile phone (Section 66A), Receiving stolen computer resource or communication device (Section 66B) Punishment for Identity Theft (Section 66C) Punishment for cheating by personation using computer resource (Section 66D) Punishment for violating privacy or video voyeurism (Section 66E) Cyber Terrorism (Section 66F) Publishing or transmitting material in electronic form containing sexually explicit act (Section 67A), Child pornography (Section 67B) 23 As the technology develops there is a continuous need for cyber law development around the world. This would further lead to a growing realization among different nations that their laws must evolve and adapt to the growing needs and development. The substantive as well as the procedural laws will require a new exposition in the light of the evolving technological complexities. The main challenge before any court would be to evolve cyber jurisprudence which is consistent with the laws of the land. 22 supra note 31, preface vii

11 CASES With new inventions and developments in the world today, there will naturally come into existence new crimes; however success is said to have been achieved when there are proper legal mechanisms to control it. In today s world, crime is no longer limited to time, space or a group of people. With the evolution of cyberspace, there are more civil, criminal and moral wrongs. In the 1990s when the internet was just evolving, there were less than people using it but today around 500 million people have access to the internet around the globe. Thus there is growing need for a strong legal mechanism to monitor these crimes. The following are some cases in India. State of Tamil Nadu v. Suhas Katti The present case deals with the posting defamatory and obscene messages about a divorcee woman on Yahoo message group. Personal s were also forwarded to the victim through a false accounted created by him. Such an act resulted in the lady receiving annoying phone calls in the belief that she is indeed soliciting. An arrest was made by the police by tracing the accused after a complaint was made by the victim. The facts were simple- the accused was a well-known family friend and proposed to marry the victim however she refused and married another. When her marriage ended in divorce the accused once again started contacting her and when she refused, the accused took up harassment through the internet. The defence argued that the e- mails might have been the ex-husband or the complainant herself to implicate the accused. He further argued that certain documentary evidence provided was not admissible under section 65 of the Indian Evidence Act. The Court however relied upon the expert witnesses and other evidences produced and came to the conclusion that the crime was conclusively proved SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra This case was India s first case of cyber defamation where a court of Delhi assumed jurisdiction. The facts of the case are simple where the defendant Jogesh Kwatra was an employee of the plaintiff s company. He started sending defamatory, obscene and abusive about the cooperation to his employers as well as to different subsidiaries of the company all over the world with the 148

12 aim to defame the company. Thus a suit was filed by the plaintiff for a permanent injunction restraining the defendant from continuing such defaming acts. Consequently, the Delhi High Court restrained the defendant from sending derogatory, defamatory, obscene, vulgar and abusive s either to the plaintiffs or to its subsidiaries all over the world. Further, the court also restrained the defendant from publishing, transmitting or causing to be published any information in the actual world as also in cyberspace which is derogatory or defamatory or abusive of the plaintiffs. This order of Delhi High Court assumes tremendous significance as for the first time an Indian Court assumes jurisdiction in a matter concerning cyber defamation and granted an ex-parte injunction restraining the defendant from defaming the plaintiffs by sending derogatory, defamatory, abusive and obscene s either to the plaintiffs or their subsidiaries. 24 Nasscom vs. Ajay Sood & Others In a famous judgment in the case of National Association of Software and Service Companies vs Ajay Sood & Others, delivered on March,05 the Delhi High Court declared phishing on the internet to be an unlawful act, entailing an injunction and recovery of damages. Elaborating on the concept of phishing, the court explained that when a person pretends to pose as a legitimate association like an insurance company or a bank etc with an aim to extract data such as codes, passwords etc, it will constitute to a form of internet fraud. The Delhi Court held that even though there are no proper laws or legislations to control phishing, it is considered to be an illegal act and can be defined under the Indian law as- A misrepresentation made in the course of trade leading to confusion as to the source and origin of the causing immense harm not only to the consumer but even to the person whose name, identity or password is misused. The court held that the act of phishing was tarnishing the image of the plaintiff. 24 Delhi High Court-12 th Feb

13 PROPOSED IDEOLOGY IT Act is considered to be the toothless so there is need to strengthen it as:- IT Act (amendment) Act 2008 reduced the quantum of punishment for majority of cybercrime. Need to be rectified and increased. There is need to cover cyber war under IT Act as an offence. Majority of cyber-crimes need to be made non-bail able offence. Among the notable suggestions is a duty to assist (DTA), First proposed by Duncan Hollis (2011), such a duty would impose a requirement to assist and guide victims facing rigorous and serious harm, to avoid or at least mitigate that harm as much as possible because as we know that cybercrimes sometimes have a devastating effect on the victim s life. A duty to assist would thus, avoid the challenges of attribution: the severity of the harm, rather than its origin, would determine whether or not assistance is to be provided Educating the common man and informing them about their rights and obligations in Cyberspace. The practical scenario is that most people are ignorant of the laws of the cyberspace, different kinds of cybercrimes, and forums for redressal of their grievances. The reporting and access points in police department require immediate change. In domestic territory, every local police station should have a cybercrime cell that can effectively investigate cybercrime cases and should be provided with updated technology to combat with hackers of this modern world. There is an imperative need to impart the required legal and technical training to our law enforcement officials, including the Judiciary and the Police officials to combat the Cybercrimes and to effectively enforce cyber laws. Accessibility is one of the greatest impediments in delivery of speedy justice 150

14 CONCLUSION For the emerging scope of cyberspace, it is important to have a cyber-law enforcing momentum because cyber-crime has the prospective to destroy each and every aspect of the life as it is easy to commit but it s really hard to detect.. Nobody then could really visualize about the Internet or its devastating effects. Though India has extremely detailed and well-defined legal system but all the existing laws in India was enacted way back keeping in mind the relevant political, social, economic, and cultural scenario of that particular time Regardless of the brilliant expertise of our master draftsmen; the necessities of cyberspace could hardly ever be expected. As such, the coming of the Internet led to the emergence of numerous sensitive legal issues and evils which necessitated the immediate change in the current cyber laws to make them more effective and efficient in reporting of crimes in cyberspace. 151