Open Access Research Article
CYBER TORT LAW: EXPLORING THE INDIAN CONTEXT
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CYBER TORT LAW: EXPLORING
THE INDIAN CONTEXT
AUTHORED BY - PURWA BALA[1]
ABSTRACT
Cyber law, a multifaceted
crime scene, includes a wide selection of laws, regulations, and constitutional
provisions that govern activities in our online world which allow access,
creatively manage the progress of access, or online communication The dynamic
realm works because the important relationship where technology and law
intersect, and it formulates the rights, duties, and responsibilities of
stakeholders in the digital realm.
At its core are cyber law
and the concept of cybercrime—a term that refers to illegal activities that use
computer systems as tools, targets, or in any way These crimes from the
traditional corruption of theft, cheating, forgery, and slander to the modern,
technologically sophisticated -Push crimes are as diverse as they are, all
punishable under the Indian Penal Code but the evolution of the digital age has
rapidly led to the emergence of many new cyber threats and specialized crime
planning is needed to effectively deal with emerging complex situations
The centrepiece of this
legislative approach is the Information Technology Act of 2000, a landmark
piece of legislation designed to combat modern cyber threats in general. These
basic rules provide a robust framework in online governance for various critical
aspects to monitor online transactions, protect digital signatures and
strengthen fact security systems Through pure recommendations and regulatory
mechanisms by defining, the Code seeks to reduce the unique vulnerabilities of
electronic, virtual communications Ensures security, integrity, and
reliability.
In complex cyber law,
stakeholders have to contend with rapid technological developments, evolving
cyber threats, and rapidly evolving regulatory frameworks therefore changes in
motion so and innovations in regulatory paradigms are needed to effectively address
evolving challenges digital age. As cyberspace redefines human communication
and business reasoning, the principles of cyber law are indispensable tools,
protecting the interests of individuals, businesses and citizens in an
increasingly connected world.
Keywords - Cyber Law, Cyber
Crime, Cyber Forensics, Information Security, Information Technology Act
I.
INTRODUCTION
The term "cyber"
refers to the virtual world of the internet, where there are no limitations
between users. The widespread usage and impact of information technology expose
societies to potential misuse. The internet gained importance in the mid-1994s,
with countries realizing its potential through its rapid growth.
The word "tort"
comes from the French language; in English, it is equivalent to the phrase
"wrong"; it is derived from the Latin word "tortum," which
means "wrong or injury," and the word tortum is derived from the verb
"torquere," which means "to twist." It is merely a breach
of duty, which results in a civil wrong[2].
A tort is a civil wrong
for which a remedy is given in terms of damages, the damages that are paid to
the plaintiff (the person who suffers the damage and brings the suit to the
court of law) against the defendant (the person who commits the tort against
the plaintiff and has to prove his innocence in court) in terms of unliquidated
damages. A tortfeasor is someone who commits a tort, and if there are numerous
people involved, they are referred to as joint tortfeasors since they are all
jointly accountable for the tortious act and can be sued either individually or
collectively.
Cyber wrongs are unlawful
acts conducted via the internet; the only difference between a wrong and a
cyber wrong is that a cyber wrong involves the use of technology in the
commission of it, i.e. the medium through which a cyber wrong is perpetrated is
through technology.[3]
With the creation of
computers and the emergence of the internet, a new type of tort has sprung up,
namely cyber torts.
Cyber torts are torts
perpetrated in cyberspace. These are extremely significant since they are on
the rise and can have serious consequences for society. Everyone in society
should be aware of the damage caused by cybercrime because technology has become
an integral part of everyone's life.[4]
Examples of cyber torts include
e-mail harassment, cyberstalking, cyber harassment, and cyber defamation.
The internet has brought
numerous benefits, including e-commerce, e-banking, endless information, and
quick communication. Through email, messengers, voice chat, social media, and
other channels. However, there are also negative aspects such as hacking, stalking,
and defamation.
The internet has become
the primary mode of communication, offering anonymity, reliability, and
convenience. It has also become a breeding ground for individuals interested in
using the internet for illicit purposes, both financially and otherwise.
The biggest challenge for
the law is keeping up with technological advancements. One challenge of
creating technology-based legislation is that it may become outdated quickly.
Therefore, potential technologies must be formulated in a technology-neutral manner.
There has to be consistency between the laws[5].
II.
HISTORY
OF CYBER TORT
The Internet, which began
as the US Défense Department's ARAET, was intended to connect computer networks
to various radio and satellite networks. The first legal opinion to mention the
Internet was United States vs Morris[6].
The defendant in Morris was a Ph.D. student who distributed an Internet worm
that crippled thousands of universities and military systems across the United
States[7].
In the same year, Robert Riggs was charged with gaining illegal access to a
Bell South computer and misappropriating confidential information about the
telephone company's 911 system[8]. He later released this private information
in the Hacker newsletter. It was not until 1994 that any plaintiff won in an
Internet tort lawsuit. In a contentious case, an anthropologist was refused
tenure at the University of Western Australia in Rindos v. Hardwick. A
competing anthropologist, Hardwick, made a statement supporting the
university's decision and accusing Rindos of sexual deviance and research that
is harmful to Australia's aboriginal people. Although an Australian court
imposed the first damages award in an Internet tort case, the vast majority of
subsequent cyber torts have been handled in the United States[9].
Over the last decade, American tort law has begun to adapt to cover online
harms such as Internet defamation, email stalking, spamming, and trespassing on
websites[10].
III.
CYBER
WRONG AND ITS TYPE
Cyber wrongs are
unauthorized acts that are committed over the internet. The wrong is mainly
done by the involvement of technology. Cyber wrongs encompass both civil and
criminal wrongs. The Information Technology Act imposes civil and criminal
fines for violations of its provisions.
1. A civil cyber wrong is committed online and
is civil in nature, such as a tort of defamation committed online using a
computer (or any device with internet access and the ability to modify or post
information online, such as a mobile phone or a tablet) as a tool to commit that
type of wrong. Although not specified or treated as civil cyber wrongs, section
43 of the IT Act of 2000[11]
defines the essence of civil liability. A civil proceeding occurs when one
person or state seeks to assert their civil rights against another person. If
the claim is successful, it will result in the declaration of the claimed
rights and relief. If a court order is directed against a criminal act, it must
be considered criminal if it could result in imprisonment or a fine. Civil
Sanctions aim to protect the harmed parties and make the violation justifiable.
2. A criminal cyber wrong is a major problem that
must be addressed as quickly as feasible. A criminal cyber wrong is a crime
committed online using technology, including hacking, information theft, denial
of service attacks, and so on. Although not treated as criminal cyber wrongs in
any acts, many wrongs of a criminal nature are defined under the IT Act of 2000[12],
such as child pornography under Section 67-A of the act. A criminal punishment
is a prosecution resulting in a fine or imprisonment under a statute. It is
based on the notion that society suffers as a result of the defaulter's actions
and that a deterrent sentence is necessary to prevent the infraction from
occurring again. The proceedings for damages are independent from the criminal
accusations brought against the offender. The imposition of damages does not
constitute a prosecution or punishment for any offense. It can be done
simultaneously with filing a criminal complaint.
Civil sanctions defend a
person's property or privacy rights, while criminal sanctions aim to uphold
public justice by punishing offenders. Thus, the two therapies are mutually
exclusive, although they clearly coexist and fundamentally differ in their content
and outcome.
IV.
IMPACT
OF TECHNOLOGY IN THE WORLD
Over the years, technology
has transformed our world, creating incredible tools and resources that put
extremely useful knowledge at the fingertips of every person. The digital
revolution has been both a blessing and a curse, as e-filing in courtrooms has
become a regular occurrence, and information about cases is now being posted
online on websites, as well as a curse because some of the wrongs that were
previously possible in the real world, such as digital defamation,
cyberstalking, and so on, are now also possible in the virtual world[13].
E-governance has made it
much easier for the Indian government to provide government services,
communicate information, and so on, resulting in a reduction in paper usage and
a promotion of the technical sector. It is now easy to obtain everything online
rather than through paper and files[14].
V.
TORT
CONCEPT IN THE CYBERWORLD
As previously stated, a
tort is a negligent or intentional act that is done by someone who injures
someone else in some way, either physically or by violating their legal rights[15].
Cyber torts, which are committed over cyberspace, are very important because
they are on the rise and can have serious repercussions on society. Everyone in
society should be aware of the dangers and damage that is caused by cyber torts
because technology has become an essential part of life for everyone.
Examples of cyber torts
include e-mail harassment, cyberstalking or cyber harassment, and cyber
defamation[16].
1. Cyber Stalking
Stalking has long been
recognized as an unwelcome behavior of an obsessive stalker towards a
distressed victim. Although this concept has existed for a long time, its
influence has just recently emerged. Cyberstalking is the use of information
and communication technologies to harass, distress, and instil fear in others.
Cyber stalkers use
internet services like e-mails to send threatening, disturbing, and harassing
communications to victims. Stalking can be done directly or indirectly. In
direct harassment, the stalker delivers harassing messages to the victim
directly, whereas indirect harassment involves obtaining personal information
and using it to contact the individual through other ways.
Cyberstalking creates a
danger to many internet users, who cannot simply move away or disconnect from
the internet. Stalking in cyberspace does not leave direct viewing traces,
requires digitalized effects, and may only be detected by computerized means.
However, it harms the victim who lives in reality[17].
2. Cyber Harassment
Harassment via email is
not a new concept. It is very similar
to harassment by letter. Recently, I received an email from a lady who
complained about the same. Her previous boy friend was continually sending her
emails, sometimes emotionally blackmailing her and threatening her. This is a
common kind of email harassment.
3. Cyber Defamation
It is the act of imputing
any individual with the intent to reduce the person's standing in the eyes of right-thinking
members of society as a whole, to cause him to be shunned or avoided, or to
expose him to hatred, scorn, or ridicule. Cyber defamation is identical to
traditional defamation except for the use of a virtual medium. For example,
Rohit's email account was hacked, and emails were sent from his account to some
of his batch mates about his affair with a female to discredit him.
4. Hacking
This action is often known
as hacking. The Indian law has given a different sense to the term hacking,
thus we will not use the term "unauthorized access" interchangeably
with the term "hacking" to avoid confusion, as the term employed in
the Act of 2000 is far broader than hacking[18].
5. Cyber-Vandalism
Conventional vandalism
refers to the wilful destruction or damage of someone's property. Thus,
cyber-vandalism refers to intentionally causing physical harm to anyone's
computer or virtual system. These activities may include the theft of a
computer or any of its peripherals[19].
6. Cyber Trafficking
Trafficking can take various
forms, including drugs, weaponry, and even human beings. Trafficking has taken
on a new form with the rise of the internet, as cyber trafficking has emerged,
in which the trafficking procedure is carried out online via a virtual machine.
7. Cyber Obscenity
Pornography on the
internet takes numerous forms. It may also feature banned content, like as
child pornography, which is a serious felony in real life.
8. Intellectual Property
Crimes
Intellectual property
consists of a set of rights. Any unlawful conduct that deprives the owner of
his rights, whether entirely or partially, is an offense. Software piracy,
copyright infringement, trademark and service mark violations, theft of
computer source code, and so on are examples of prevalent IPR violations. In a
landmark decision, the Hyderabad Court convicted three people and sentenced
them to six months in prison and 50,000.
VI.
MANNER OF COMMITTING TORT.
1. Theft Of Information
Contained in Electronic Form
This comprises information
stored on computer hard disks, removable storage media, magnetic disks, flash
memory devices, and so on. Theft can
occur either by physically stealing or misappropriating data or by meddling
with it via the virtual medium.
Example- When a person
receives random emails including links to a replica of any website that
requires personal information to log in, filling out the form provides the user
who built the replica with all of the victim's information and access to the account.
2. E-mail Bombing
This type of action
relates to sending massive amounts of mail to the target, which could be an
individual, a company, or even mail servers, ultimately resulting in crashing.
3. Trojan Attack
Also known as Trojan
horses, these are the types of software that are installed on a computer by
masquerading as authorized software while not being authentic. This software
acquires administrative access to computers passively, without informing the
actual owner.
4. Chat Rooms and Message
Boards
Chat
rooms and Message boards can lead to cyberstalking.
Example-
Certain groups of people build websites that target people suffering from
mental illness or despair, convincing them that there is no chance for them to
continue living their lives through message boards or chat rooms.
5.
Data Dwindling
These
attacks involve modifying raw data before a computer operation is completed and
then restoring the information to its prior state.
6.
Virus
These
are the programs that attach themselves to a computer and begin multiplying to
cease filling the computer's data after getting administrative access to the
machine.
7.
Denial of Service Attack
In
this mode, a server is inundated with requests, which may cause the server to
crash and prevent the site from functioning.
8.
Web Jacking
This
phrase is derived from the term hi-jacking. In these types of offenses, the
hacker acquires access to and control of another person's website. He may even
mutilate or alter the information on the website. This may be done to achieve
political goals or to make money. For example, recently, the Ministry of
Information Technology site was found hacked by Pakistani hackers, and some
obscenity was found posted there. The Bombay Crime Branch's website was also
hacked[20].
Another example of web hacking is the classic Fish Case. In this situation, the
site was hacked, and the information related to the goldfish had transformed.
Furthermore, a ransom of US$1 million was demanded. Thus, web jacking is a
method in which control over another's site is obtained in exchange for some
consideration[21].
VII.
PEOPLE WHO MAINLY COMMIT CYBERCRIME
1. People Between the Ages Of
6 To 16
People of this age range
are not intellectually evolved enough to understand the consequences of the
actions they may take; therefore, cyber wrongs perpetrated by these folks are
sometimes committed without even realizing it. The offenders are called Juveniles.
2. People Who Are Unaware of
Cyber Wrongs
There is still a large
group of people in India who are unaware of the wrongs that they may end up
committing online without realizing the consequences of their actions or the
penalties of the offenses that they may commit. Typically, people in
underdeveloped countries may commit these wrongs because there are no proper
rules and regulations in place. After all, technology is still a relatively new
term in these countries.
3. Professional Hackers
Independent
hackers are typically held liable for all types of cybercrimes done online.
Example - Individual
hackers who are not linked with any organization are paid by individuals to
carry out a specific mission online against another individual.
4. Organised Hackers
Certain organizations are
founded by hackers with the sole purpose of achieving political prejudice,
fundamentalism, or other similar objectives.
Example - Organizational
hackers recruited informally by political parties to work online and post
things against their opponents that a person would ordinarily not do, or even
hack their official website and change the full of it.
5.
Terrorist Attack
Terrorist
organizations play an important role in the world of cybercrime because they
are responsible for motivating and hiring youth into their organizations to
carry out their agendas. This is accomplished by using social media as a medium
to connect with potential individuals, and thus they are manipulated over the
internet to carry out specific acts that may be against an individual or the
state.
VIII.
LEGAL FRAMEWORK
To
address the issues that arise in the cyber world, the Information Technology
Act was passed in 2000.
The
primary goal of this act was to establish legal recognition for electronic
records with the government. India has several well-codified laws that are
still applicable today; yet, the rise of the internet has brought with it new
legal challenges.
Existing
laws were enacted in the past with society, politics, economics, and culture in
mind. There was no internet in the past, thus there was no need for cyber laws;
however, this is no longer the case, as we have entered the cyber era and must
deal with legal concerns concerning the internet and the cyber world[22].
The
laws that existed in India could not be construed in the context of the offense
committed online, therefore there was a need for the formulation and enactment
of cyber laws, as none of the existing laws provided legal validity to cyber
activities.
According
to section 1(2), the act applies to all of India and also to any offense or
contravention committed by someone outside of Indian territory, as stated in
section 75 of the act. However, without a written extradition treaty
arrangement, a trial for such wrongs is extremely hard.
The
statute was created to address all cybercrimes that may occur on the internet.
The
Act was updated in 2008, and the establishment of cyber appellate tribunals was
outlined in Section 48 of the Act. The tribunal was established to deal with
all cyber-related issues in India, and it has the same powers as a civil court.
The
2008 amendment made various changes to the act, such as clarifying the word
"communication devices" and holding firms accountable for security
breaches caused by poor data security practice implementation.
IX.
CONCLUSION
No
government in the world can prevent cybercrime or other internet wrongs
committed by people regularly. However, governments may adapt and expand their
technologies while monitoring everyone's online actions in cyberspace.
Historically,
no legislation in any world has been able to abolish the wrong against which it
was enacted. The same is true for India's cyber laws; as the cyber world
expands, new ways to exploit gaps on the internet and conduct wrongs emerge
daily.
Because
many individuals are uninformed of the wrongs that can occur online and the
penalties associated with them, the government should adopt a strategy to
publicize the crimes and the penalties associated with them so that even the
average person can be informed of the consequences of such activities.
Agreement between the Governments of the Member States of the Shanghai
Cooperation Organization on Cooperation in the Field of
International Information Security, 61st plenary meeting (Dec. 2, 2008)
[hereinafter Shanghai Cooperation Agreement]
Agreement between the Governments of the Member States of the Shanghai
Cooperation Organization on Cooperation in the Field of
International Information Security, 61st plenary meeting (Dec. 2, 2008)
[hereinafter Shanghai Cooperation Agreement]
Agreement between the Governments of the Member States of the Shanghai
Cooperation Organization on Cooperation in the Field of
International Information Security, 61st plenary meeting (Dec. 2, 2008)
[hereinafter Shanghai Cooperation Agreement]
Agreement between the Governments of the Member States of the Shanghai
Cooperation Organization on Cooperation in the Field of
International Information Security, 61st plenary meeting (Dec. 2, 2008)
[hereinafter Shanghai Cooperation Agreement]
Agreement between the Governments of the Member States of the Shanghai
Cooperation Organization on Cooperation in the Field of International Information
Security, 61st plenary meeting (Dec. 2, 2008) [hereinafter Shanghai Cooperation
Agreement]
Agreement between the Governments of the Member States of the Shanghai
Cooperation Organization on Cooperation in the Field of International
Information Security, 61st plenary meeting (Dec. 2, 2008) [hereinafter Shanghai
Cooperation Agreement].
2.http://www.whitehouse.gov/sites/default/files/rss_viewer/international_strategy_for_cyberspac e.pdf..
Mark Lander, A Filipino Linked to “Love Bug” Talks About His License to Hack,
N.Y. TIMES, October 21, 2000
3. Article named Cyber Tort in the famous American Journal of
International Commercial Law and
Technology written by ‘Gregory C.
Mosier’ and ‘Tara’ has been utilized to get the matter on types of cyber
Torts in India.
4. International Court of Justice., (1986) Military and
Paramilitary Activities in and
against Nicaragua (Nicaragua v. United
States of
America).
5. Article named, Cyber Torts written in ennstate is referred for the
introduction part of the proect; i.e. The basic idea of Cyber Tort.
6. Vakul Sharma, Information
Technology: Law and Practice, Universal
Law Publishing Co. Pvt.
Ltd., 2008.
7. IT act 2000
8. New Amendments to IT Act 2000
9. S. Hinde, “The law, cybercrime, risk assessment and cyber
protection”, Computers & Security,
vol. 22, issue 2, pp. 90-95, February 2003.
10. C. Scheideler, “Theory of network communication”, Johns Hopkins
University, September 2002.
11. Adv. Prashant Mali, “Types of cyber crimes & cyber law in
India”, CSI Communication, Vol. 35,
issue 8, pp. 33-34, November 2011.
12. Q. Yeh and A. Chang, “Threats
and countermeasures for information
system security: A cross-
industry study”, Information & Management, vol. 44, pp. 480-491,
[2] Agreement
between the Governments of the Member States of the Shanghai Cooperation
Organization on Cooperation in the Field of International Information Security,
61st plenary meeting.
[4]
http://www.whitehouse.gov/sites/default/files/rss_viewer/international_strategy_for_cyberspac e.pdf..
Mark Lander, A
Filipino Linked to “Love Bug” Talks About His License to Hack, N.Y. TIMES,
October 21, 2000c. 2, 2008) [hereinafter Shanghai Cooperation Agreement].
[5] Article
named Cyber Tort in the famous American Journal of International Commercial Law
and Technology written by ‘Gregory C.
[7] Q. Yeh and A. Chang, “Threats and
countermeasures for information system security: A cross-industry study”, Information &
Management, vol. 44, pp. 480-491, 2007.
[8] An article named Cyber Tort in the famous
American Journal of International Commercial Law and Technology written by
‘Gregory C. Mosier’ and ‘Tara’ has been utilized to get the matter on types of
cyber-Torts in India.
[9] International
Court of Justice., (1986) Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of
America).
[10] The article named; Cyber Torts written in
ennstate is referred for the introduction part of the project; i.e. The basic
idea of Cyber Tort.
[11] IT Act 2000.
[12] New Amendments to IT Act 2000.
[14] Vakul
Sharma, Information Technology: Law and Practice, Universal Law Publishing Co.
Pvt.Ltd., 2008.
[15]Cyberspace
available at:
http://www.whitehouse.gov/sites/default/files/rss_viewer/international_strategy_for_ Lander,
A Filipino Linked to “Love Bug” Talks About His License to Hack, N.Y. TIMES,
October 21, 2000.
[16] Adv.
Prashant Mali, “Types of cyber-crimes & cyber law in India”, CSI
Communication, Vol. 35, issue 8, pp. 33-34, November 2011.
[18] Cyber tort available at: www.legalservicesindia.com/article/1134/Cyber-Torts.html last visited on 29th Mar 2024.
[19]Cyber awareness available at:
www.researchgate.net/publication/267470949_Cyber_Situational_Awareness_Issues_and_Research last visited on 30th Mar 2024.
[20] Lander,
A Filipino Linked to “Love Bug” Talks About His License to Hack, N.Y. TIMES,
October 21, 2000.
[21] Cyber tort and cyberspace available at:
www.researchgate.net/publication/344507432_Cyber_Attack_Cyber_Tort_and_Cyber_Security last visited on 31st Mar 2024.
Article Information
CYBER TORT LAW: EXPLORING THE INDIAN CONTEXT
Authors: PURWA BALA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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