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9/14/2018 Crimes in Cyberspace: Right to Privacy and Other Issues - Academike

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Crimes in Cyberspace: Right to Privacy and Other  Milind Rajratnam on


Issues Precedents as a source
 On August 7, 2014  By admin
of law

 Jyoti on Other
By Mohak Rana NMIMS, School of Law, Mumbai 
Authorities under Article
Editor’s Note: The present era is marked by two things: heavy 12 of Constitution
reliance on technology and virtual space. But behind the
 Rajib Karak on Laws
interfusion of these two there exists a world of potent threat
of Custody in India: An
and risks. These threats and risks are very much latent in
Analysis of Section 167
nature and mostly the one committing it or the one upon
of the Code of Criminal
whom it is committed are extremely di cult to be identi ed.
Procedure
For instance in crimes like cyber phishing, where a user shares
his credentials to a disguised trustworthy site but  Abhijit Sen on
subsequently becomes a victim of fraud. The pace with which Offences Against
such crimes are evolving is very striving yet a country like Women Under the IPC
India lacks far behind when it comes to laws and rules
regulating cyber world. Much to our surprise there is no
de nition of cyber crimes in India. Although we have come up
with IT Act, 2000 and the subsequent amendment to it in 2008 CALENDAR
yet we are not able to cover the complete ambit of cyber
crimes. Like a very crucial issue of right to privacy. It has
SEPTEMBER 2018
almost no relevance when the cyber crimes in India are
investigated. This only shows the imbalance between age old
M T W T F S S
procedure adopted in India and the advancement which Indian
society has made. However liability can also be found under   1 2
criminal and tort law which has maintained their coordination
3 4 5 6 7 8 9
with the procedural part.  
10 11 12 13 14 15 16
INTRODUCTION
17 18 19 20 21 22 23
 “When a man is denied the right to live the life he believes in, he
24 25 26 27 28 29 30
has no choice but to become an outlaw.”
« Oct    
― Nelson Mandela

What does crime mean?


TAGS
Crime, in modern times this term doesn’t have any universally
accepted de nition, but one can de ne crime, also called an
offence as an act harmful not only to some individual,  but also to  ADR  agency

 Arbitration
the community or the state also known as public wrong. Such acts 
are forbidden and punishable by law. What is a criminal offence is  Competition

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de ned by criminal law of each country. While many countries  constitution

have a crime catalogue known as the criminal code however in  constitutional law

some common law countries no such comprehensive statute  contract

exists.  contracts  criminal

law  death penalty


The state has the power to severely restrict one’s liberty for
 divorce  education
committing a crime. Modern societies therefore adopt and adhere
 evidence  fair trial
a criminal procedure during the investigation and trial of the
 Family Law
offence and only if found guilty, the offender may be sentenced to
 Fundamental Rights
various punishments, such as life imprisonment or in some
 goods  Human
jurisdictions like in India even death.
Rights  independence of

To be classi ed as a crime, the act of doing something bad also judiciary  India

called as actus reus must be usually accompanied by the intention  Indian Contract Act

to do something bad i.e. mens rea, with certain exceptions like  information technology

strict liability.  insider trading

 IPC  IPR
What is cyber crime?  jurisdiction

 jurisprudence  law
Cyber crime is any criminal activity in which a computer or
 limited liability
network is the source, target or tool or place of crime. According
 maintenance
to The Cambridge English Dictionary cyber crimes are the crimes
 marriage  minor
committed with the use of computers or relating to computers,
 natural justice
especially through the internet. Crimes which involve use of
 patent  president
information or usage of electronic means in furtherance of crime
 privacy  Property
are covered under the ambit of cyber crime. Cyber space crimes
 Property Law  rape
may be committed against persons, property, government and
 Right to information
society at large.
 separation of powers

The common types of cyber crimes are:-  tax  Transfer Of

Property Act  USA


1. Hacking – An unauthorized user who attempts to or gains
 WOMEN
access to an information system is known as hacker.
Hacking is a cyber crime even if there is no visible damage to
the system, because it is an invasion in to the privacy of
data.

There are 3 different classes of Hackers.

a)          White Hat Hackers – They are those hackers who believe
that information sharing is good, and that it is their duty to share
their expertise by facilitating access to information. However there
are some white hat hackers who are just “joy riding” on computer 
systems.

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b)      Black Hat Hackers – Black hat hackers cause damage after
intrusion. They may steal or modify data or insert viruses or
worms which damage the system. They are also known as
crackers.

c)          Grey Hat Hackers – These type of hackers are typically


ethical but occasionally they can violate the hacker ethics. They
will hack into networks, stand-alone computers and software.
Network hackers try to gain unauthorized access to private
computer networks just for challenge, curiosity, and distribution of
information.

2. Cyber Stalking – Cyber stalking involves use of internet to


harass someone. The    behavior includes false accusations,
threats etc. Normally, majority of cyber stalkers are men and the
majority of victims are women.

3. Spamming – Spamming is sending of unsolicited bulk and


commercial messages over the internet. Although irritating to
most email users, it is not illegal unless it causes damage such as
overloading network and disrupting service to subscribers or
creates negative impact on consumer attitudes towards Internet
Service Provider.

 4. Cyber Pornography – With the increasing approach of internet


to the people, there is also a increase in the victimization of
Women and children for sexual exploitation through internet.
Pedophiles (a person 16 years of age or older who is primarily or
exclusively sexually attracted to children who have not begun
puberty) use the internet to send photos of illegal child
pornography to targeted children so as to attract children to such
funs and later they are sexually exploited for gains.

5. Cyber Phishing – It is a criminally fraudulent process in which


cyber criminal acquires sensitive information such as username,
passwords and credit card details by disguising as a trustworthy
entity in an electronic communication.

6. Software Piracy – It is an illegal reproduction and distribution of


software for business or personal use. This is considered to be a
type of infringement of copy right and a violation of a license
agreement. Since the unauthorized user is not a party to the

license agreement it is di cult to nd out remedies. There are

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numerous cases of software piracy. Infact according to one report


New Delhi’s Nehru market is the Asia’s largest market where one
can easily nd pirated software.

7. Corporate Espionage – It means theft of trade secrets through


illegal means such as wire taps or illegal intrusions.

8. Money Laundering – Money laundering basically means the


moving of illegally acquired cash through nancial and other
systems so that it appears to be legally acquired. This is possible
prior to computer and internet technology and now times
electronic transfers have made it easier and more successful.

9. Embezzlement – Internet facilities are misused to commit this


crime. It is the unlawful misappropriation of money, property or
any other thing of value that has been entrusted to the offender’s
care, custody or control.

10. Password Sniffers – These are programs that monitor and


record the name and password of network users as they log in,
jeopardizing security at a site. Whoever installs the sniffer can
impersonate an authorized user and log in to access on restricted
documents.

11. Spoo ng – Spoo ng is the act of disguising one computer to


electronically “look” like another compute, in order to gain access
to a system that would be normally is restricted.

12. Credit Card Fraud – In U.S.A. half a billion dollars have been
lost annually by consumers who have credit cards and calling card
numbers. These are stolen from on-line databases. In present
world this cyber crime is emerged as a major threat as numerous
cases had been led in almost every major developed and
developing country.

13. Web Jacking – The term refers to forceful taking of control of


a web site by cracking the password.

14. Cyber terrorism – The use of computer resources to intimidate


or coerce government, the civilian population or any segment
thereof in furtherance of political or social objectives is called
cyber terrorism. Individuals and groups quite often try to exploit
anonymous character of the internet to threaten governments and

terrorize the citizens of the country. [1]

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EVOLUTION & PRESENT


DEVELOPMENT
“Cyber bullies can hide behind a mask of anonymity online, and do
not need direct physical access to their victims to do unimaginable
harm.”     -Anna Maria Chavez

Crime is both a social as well as a economic phenomenon. Its


history is as old as human society. Many books right from the pre-
historic days, and mythological stories have spoken about crimes
committed by individuals be it against another individual like
ordinary theft and burglary or against the nation like spying,
treason etc. Kautilya’s Arthashastra which is written around 350
BC, considered to be an authentic administrative treatise in India,
discusses the various crimes, security initiatives to be taken by the
rulers, possible crimes in a state etc. and also advocates
punishment for the list of some stipulated offences. Different
kinds of punishments have been prescribed for listed offences and
the concept of restoration of loss to the victims has also been
discussed in it.

Crime in any form adversely affects all the members of the


society. In developing economies, cyber crime has increased at
rapid strides, due to the rapid diffusion of the Internet and the
digitization of economic activities. Thanks to the huge penetration
of technology in almost all walks of society right from corporate
governance and state administration, up to the lowest level of
petty shop keepers computerizing their billing system, we nd
computers and other electronic devices pervading the human life.
The penetration is so deep that man cannot spend a day without
computers or a mobile. Snatching some one’s mobile will
tantamount to dumping one in solitary con nement!

Internet is the fastest technique on earth that one can nd these


days and for everything it is the best solution that people consider
looking into. It has all the bene ts and advantages like
communication, advertisement, online movie and songs
downloads, emailing, instant messaging and searching out the
concerns and issues there are plenty of things that internet has
got wrong as well. There are different kinds of internet scams and
frauds that are happening and one needs to be very careful. This is 
something that has been bothering individuals and organizations

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ever since internet was introduced and many a time, simple things
could make you a victim even when you are unaware of it.

It is rightly said that technological development in every area is


likely to cause drastic effects in every walk of life. The scienti c
and technological advancement, especially in the eld of
communication and information have created havoc thus, opening
new vistas for the human beings including the criminals. Today’s
crime reports reveal that many cyber crimes are committed by
assistance of internet and cell phones. On the other hand,
legislatures have been compelled to frame exclusive enactments
to deal with crimes committed with the help of concerned device.
If one is to believe newspaper reports, many scandals such as C.D.
rackets were busted by the police. It is other side of revolution in
the eld of information and technology. Under the Information
Technology Act, 2000, there is a apparatus de ned as “computer”
which means “Any electronic magnetic, optical or other high speed
data processing device or system which performs logical
arithmetical and memory functions by manipulations of electronic
magnetic or optical impulses and all input, output, processing
storage, computer software, or communication facilities which are
connected and related to the computer in a computer system or
computer network”. [2]

Development of Cyber Crime:-

Cyber Crime is neither de ned in the IT Act 2000 nor in the I.T.
Amendment Act 2008 nor in any other legislation in India. To
de ne cyber crime, we can say, it is just a combination of crime
and computer. To put it in simple terms ‘any offence or crime in
which a computer is used is a cyber crime’. Interestingly even a
petty offence like stealing or pick-pocket can be brought within the
broader purview of cyber crime if the basic data or aid to such an
offence is a computer or information stored in a computer used
(or misused) by the fraudster. It could be hackers vandalizing one’s
site, viewing con dential information or stealing trade secrets or
intellectual property with the use of internet. It can also include
‘denial of services’ and viruses attacks preventing regular tra c
from reaching your site.

Cyber crimes also includes criminal activities done with the use of
computers which further perpetuates crimes i.e. nancial crimes,

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sale of illegal articles, pornography, online gambling, intellectual


property crime, e-mail, spoo ng, forgery, cyber defamation, cyber
stalking, unauthorized access to Computer system, theft of
information contained in the electronic form, e-mail bombing,
physically damaging the computer system etc. In a cyber crime,
computer or the data itself is the target or the object of offence or
a tool in committing some other offence, providing the necessary
inputs for that offence. All such acts of crime will come under the
broader de nition of cyber crime.

In the past, cybercrime has been committed by individuals or small


groups of individuals. However, we are now seeing an emerging
trend with traditional organized crime syndicates and criminally
minded technology professionals working together and pooling
their resources and expertise.

This approach has been very effective for the criminals involved. In
2007 and 2008 the cost of cybercrime worldwide was estimated at
approximately USD 8 billion. As for corporate cyber espionage,
cyber criminals have stolen intellectual property from businesses
worldwide worth up to USD 1 trillion.

Categories of Cyber Crimes


Cyber crimes can be classi ed into following different categories:

i) Crimes Against Persons:

Harassment via E-Mails:  Harassment through sending


letters, attachments of les & folders i.e. via e-mails. At
present harassment is common as usage of social sites i.e.
Orkut, hangout, zapak, Facebook, Twitter etc. increasing day
by day.

Cracking: It is amongst the gravest cyber crimes known till


date. In this a cyber criminal broke into your computer
systems without your knowledge and consent and Tampere
with your precious con dential data and information.

Cyber-Stalking: It means expressed or implied a physical


threat that creates fear through the use to computer
technology such as internet, e-mail, phones, text messages,
webcam, websites or videos. 

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Hacking: It means unauthorized control/access over


computer system and act of hacking completely destroys the
whole data as well as computer program. Hackers usually
hacks telecommunication and mobile network.

Dissemination of Obscene Material: It includes Indecent


exposure/ Pornography (basically child pornography),
hosting of web site containing these prohibited materials.
These obscene matters may cause harm to the mind of the
adolescent and tend to deprave or corrupt their mind. This
can create a huge blunder in the society.

SMS Spoo ng: Spoo ng is a blocking through spam which


means the unwanted uninvited messages. Here a offender
steals identity of another in the form of mobile phone
number and sending SMS via internet and receiver gets the
SMS from the mobile phone number of the victim.

Assault by Threat: it refers to threatening a person with fear


for their lives or lives of their families through the use of a
computer network i.e. E-mail, videos or phones.

Page jacking: when a user, click on a certain link and an


unexpected website gets opened through that link then the
ser is said to be ‘pagejacked’. This happens when someone
steals part of a real website and uses it in a fake site. If they
use enough of the real site, Internet search engines can be
tricked into listing the fake site and people will visit it
accidentally. Unfortunately one cannot prevent page jacking
but only can deal with it.

Advance fee scams: An advance fee scam is fairly easy to


identify as you will be asked for money or goods upfront in
return for giving you credit or money later. These advance fee
scams can seem convincing and have taken in many people.

Defamation: It is an act of imputing any person with intent to


lower down the dignity of the person by hacking his mail
account and sending some mails with using vulgar language
to unknown persons mail account.

E-Mail Spoo ng: A spoofed e-mail may be said to be one,


which misrepresents its origin. It shows it’s origin to be 
different from which actually it originates.
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Child Pornography: It involves the use of computer networks


to create, distribute, or access materials that sexually exploit
underage children.

Carding: It means false ATM cards i.e. Debit and Credit cards
used by criminals for their monetary bene ts through
withdrawing money from the victim’s bank account mala-
dely. There is always unauthorized use of ATM cards in this
type of cyber crimes.

Cheating & Fraud: It means the person who is doing the act
of cyber crime i.e. stealing password and data storage has
done it with having guilty mind which leads to fraud and
cheating.

ii) Crimes Against Persons Property:

As a result of rapid growth in the international trade where


businesses and consumers are increasingly using computers to
create, transmit and to store information in the electronic form
instead of traditional paper documents there are some of the
offences which affect person’s property:

Intellectual Property Crimes:  Any unlawful act by which the


owner is deprived completely or partially of his rights is an
offence. The common form of IPR violation may be said to
be software piracy, infringement of copyright, trademark,
patents, designs and service mark violation, theft of
computer source code, etc.

Cybersquatting: It means where two persons claim for the


same Domain Name either by claiming that they had
registered the name rst on by right of using it before the
other or using something similar to that previously. For
example two similar names i.e. www.yahoo.comand
www.yaahoo.com.

Cyber Vandalism: Vandalism means deliberately destroying


or damaging property of another. Hence cyber vandalism
means destroying or damaging the data when a network
service is stopped or disrupted. It may include within its
purview any kind of physical harm done to the computer of
any person. These acts may take the form of the theft of a 

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computer, some part of a computer or a peripheral attached


to the computer.

Hacking Computer System:  Due to the hacking activity there


will be loss of data as well as computer. Also research
especially indicates that those attacks were not mainly
intended for nancial gain too and to diminish the reputation
of particular person or company.

Transmitting Virus: Viruses are programs that attach


themselves to a computer or a le and then circulate
themselves to other les and to other computers on a
network. They usually affect the data on a computer, either
by altering or deleting it. Worm attacks plays major role in
affecting the computerize system of the individuals.

Cyber Trespass: It means to access someone’s computer


without the right authorization of the owner and does not
disturb, alter, misuse, or damage data or system by using
wireless internet connection.

Internet Time Thefts: Basically, Internet time theft comes


under hacking. It is the use by an unauthorized person, of the
Internet hours paid for by another person. The person who
gets access to someone else’s IP user ID and password,
either by hacking or by gaining access to it by illegal means,
uses it to access the Internet without the other person’s
knowledge. You can identify time theft if your Internet time
has to be recharged often, despite infrequent usage.

iii) Cyber Crimes Against Government:

There are certain offences done by group of persons intending to


threaten the international governments by using internet facilities:

Cyber Terrorism: Cyber terrorism is a major burning issue in


the domestic as well as global concern. The common form
of these terrorist attacks on the Internet is by distributed
denial of service attacks, hate websites and hate e-mails,
attacks on sensitive computer networks etc. Cyber terrorism
activities endanger the sovereignty and integrity of the
nation.

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Cyber Warfare: It refers to politically motivated hacking to


conduct sabotage and espionage. It is a form of information
warfare sometimes seen as analogous to conventional
warfare although this analogy is controversial for both its
accuracy and its political motivation.

Distribution of pirated software: It means distributing pirated


software from one computer to another intending to destroy
the data and o cial records of the government.-25

Possession of Unauthorized Information: It is very easy to


access any information by the terrorists with the aid of
internet and to possess that information for political,
religious, social, ideological objectives.

iv) Cybercrimes Against Society at large:

An unlawful act done with the intention of causing harm to the


cyberspace will affect large number of persons:

Child Pornography: It involves the use of computer networks


to create, distribute, or access materials that sexually exploit
underage children. It also includes activities concerning
indecent exposure and obscenity.

Cyber Tra cking: It may be tra cking in drugs, human


beings, arms weapons etc. which affects large number of
persons. Tra cking in the cyberspace is also a gravest
crime.

Online Gambling: Online fraud and cheating is one of the


most lucrative businesses that are growing today in the
cyber space. There are many cases that have come to light
are those pertaining to credit card crimes, contractual
crimes, offering jobs, etc. [3]

Financial Crimes: This type of offence is common as there is


rapid growth in the users of networking sites and phone
networking where culprit will try to attack by sending bogus
mails or messages through internet. Ex: Using credit cards
by obtaining password illegally. [4]

Forgery: It means to deceive large number of persons by


sending threatening mails as online business transactions 

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are becoming the habitual need of today’s life style. [5]

NEED FOR CYBER LAWS


Information technology has spread throughout the world. As the
user of cyberspace grows increasingly diverse and the range of
online interaction expands, there is expansion in the cyber crimes
i.e. breach of online contracts, perpetration of online torts and
crimes etc. Due to the consequences there was need to adopt a
strict law by the cyber space authority to regulate criminal
activities relating to cyber and to provide better administration of
justice to the victim of cyber crime. In the modern cyber
technology world it is very much necessary to regulate cyber
crimes and most importantly cyber law should be made stricter in
the case of cyber terrorism and hackers.

Cyber law, it is a term that encapsulates the legal issues related to


use of communicative, transactional, and distributive aspects of
networked information devices and technologies. It is less a
distinct eld of law than property or contract law, as it is a domain
covering many areas of law and regulation. IT Law is a set of
recent legal enactments, currently in existence in several
countries, which governs the process and dissemination of
information digitally. These legal enactments cover a broad gamut
of different aspects relating to computer software, protection of
computer software, access and control of digital information,
privacy, security, internet access and usage, and electronic
commerce. These laws have been described as “paper laws” for
“paperless environment”.

IT legislation in India: Mid 90’s saw an impetus in globalization and


computerization, with more and more nations computerizing their
governance, and e-commerce seeing an enormous growth.
Previously, most of international trade and transactions were done
through documents being transmitted through post and by telex
only. Evidences and records, until then, were predominantly paper
evidences and paper records or other forms of hard-copies only.
With much of international trade being done through electronic
communication and with email gaining momentum, an urgent and
imminent need was felt for recognizing electronic records i.e. The
data what is stored in a computer or an external storage attached

thereto. The United Nations Commission on International Trade

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Law (UNCITRAL) adopted the Model Law on e-commerce in 1996.


The General Assembly of United Nations passed a resolution in
January 1997 inter alia, recommending all States in the UN to give
favorable considerations to the said Model Law, which provides for
recognition to electronic records and according it the same
treatment like a paper communication and record.

Objectives of I.T. legislation in India: It is against this background


the Government of India enacted its Information Technology Act
2000 with the objectives as follows, stated in the preface to the
Act itself. “to provide legal recognition for transactions carried out
by means of electronic data interchange and other means of
electronic communication, commonly referred to as “electronic
commerce”, which involve the use of alternatives to paper-based
methods of communication and storage of information, to
facilitate electronic ling of documents with the Government
agencies and further to amend the Indian Penal Code, the Indian
Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891 and
the Reserve Bank of India Act, 1934 and for matters connected
therewith or incidental thereto.”

The Information Technology Act, 2000, was thus passed as the


Act No.21 of 2000, got President’s assent on 9 June and was
made effective from 17 October 2000.

The Act essentially deals with the following issues:

Legal Recognition of Electronic Documents


Legal Recognition of Digital Signatures
Offenses and Contraventions
Justice Dispensation Systems for cyber crimes. [6]

Amendment Act 2008: Being the rst legislation in the nation on


technology, computers and ecommerce and e-communication, the
Act was the subject of extensive debates, elaborate reviews and
detailed criticisms, with one arm of the industry criticizing some
sections of the Act to be draconian and other stating it is too
diluted and lenient. There were some conspicuous omissions too
resulting in the investigators relying more and more on the time-
tested (one and half century-old) Indian Penal Code even in
technology based cases with the I.T. Act also being referred in the
process and the reliance more on IPC rather on the ITA. 

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Thus the need for an amendment – a detailed one – was felt for
the I.T. Act almost from the year 2003-04 themselves. Major
industry bodies were consulted and advisory groups were formed
to go into the perceived lacunae in the I.T. Act and comparing it
with similar legislations in other nations and to suggest
recommendations. Such recommendations were analyzed and
subsequently taken up as a comprehensive Amendment Act and
after considerable administrative procedures; the consolidated
amendment called the Information Technology Amendment Act
2008 was placed in the Parliament and passed without much
debate, towards the end of 2008. This

Amendment Act got the President assent on 5 Feb 2009 and was
made effective from 27 October 2009.

Some of the notable features of the ITAA are as follows:

Focusing on data privacy


Focusing on Information Security
De ning cyber café
Making digital signature technology neutral
De ning reasonable security practices to be followed by
corporate
Rede ning the role of intermediaries
Recognizing the role of Indian Computer Emergency
Response Team
Inclusion of some additional cyber crimes like child
pornography and cyber terrorism
Authorizing an Inspector to investigate cyber offences (as
against the DSP earlier)

INDIAN PERSPECTIVE
Talking about Indian scenario of cyber space crimes and cyber
space laws, there was no statute in India for governing Cyber Laws
involving privacy issues, jurisdiction issues, intellectual property
rights issues and a number of other legal questions. With the
tendency of misusing of technology, there arisen a need of strict
statutory laws to regulate the criminal activities in the cyber world
and to protect the true sense of technology IT ACT, 2000 was
enacted by Parliament of India to protect the eld of e-commerce,
e-governance, e-banking as well as penalties and punishments in 
the eld of cyber crimes. The above Act was further amended in
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the form of IT Amendment Act, 2008. Also certain sections of IPC


and as some cyber space crime are invading right to privacy,
article 21 of Indian constitution are some governing laws for cyber
space crime which imposes various liabilities in India.

CONSTITUTIONAL LIABILITY

Hacking into someone’s private property or stealing some one’s


intellectual work is a complete violation of his right to privacy. The
Indian constitution does not speci cally provide the “right to
privacy” as one of the fundamental rights guaranteed to the Indian
citizens but it is protected under IPC.

Right to privacy is an important natural need of every human being


as it creates boundaries around an individual where the other
person’s entry is restricted. The right to privacy prohibits
interference or intrusion in others private life. The apex court of
India has clearly a rmed in its judicial pronouncements that right
to privacy is very much a part of the fundamental right guaranteed
under article 21 of the Indian constitution.

Thus right to privacy is coming under the expended ambit of


article 21 of Indian constitution. So whenever there is some cyber
crime which is related to the persons private property or its
personal stuff then the accused can be charged of violation of
article 21 of Indian constitution, and prescribed remedy can be
invoked against the accused.

CRIMINAL LIABILITY

Criminal liability in India for cyber crimes is de ned under the


Indian Penal Code (IPC). Certain Following sections of IPC deal
with the various cyber crimes:

Sending threatening messages by e-mail  (Sec .503 IPC)


Word, gesture or act intended to insult the modesty of a
woman (Sec.509 IPC)
Sending defamatory messages by e-mail (Sec .499 IPC)
Bogus websites , Cyber Frauds (Sec .420 IPC)
E-mail Spoo ng (Sec .463 IPC )
Making a false document (Sec.464 IPC)
Forgery for purpose of cheating (Sec.468 IPC)
Forgery for purpose of harming reputation (Sec.469 IPC) 
Web-Jacking (Sec .383 IPC)
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E-mail Abuse (Sec .500 IPC)


Punishment for criminal intimidation (Sec.506 IPC)
Criminal intimidation by an anonymous communication
(Sec.507 IPC)
Obscenity (Sec. 292 IPC )
Printing etc. of grossly indecent or scurrilous matter or
matter intended for blackmail (Sec.292A IPC)
Sale, etc., of obscene objects to young person (Sec .293 IPC)
Obscene acts and songs (Sec.294 IPC )
Theft of Computer Hardware (Sec. 378 )
Punishment for theft (Sec.379 )
Other then the IPC some other piece of legislations also
imposes criminal liability on the accused and these
legislations are:-
Online Sale of Drugs  (NDPS Act )
Online Sale of Arms (Arms Act )
Copyright infringement (Sec.51 of copyright act, 1957)
Any person who knowingly infringes or abets the
infringement of (Sec.63 of copyright act, 1957)
Enhanced penalty on second and subsequent convictions
(Sec.63 A of copyright act, 1957)
Knowing use of infringing copy of computer program to be
an offence (Sec.63B of copyright act, 1957)

The applications of these sections are subject to the investigating


style of investigating o cer and charge sheet led by the
investigating agency and nature of cyber crime.

In India there are number of cases led under these IPC provisions
related to the cyber crime. According to the report of Home
Ministry, in 2012 there are 601 cases led under the various
provisions of IPC. [7]

 TORTIOUS LIABILITY

Basic liability in cyber crime is established through the principle of


neighborhood established from the case of Donoghue v.
Stevenson. But the major tortuous liability in cyber crimes is
through Information Technology Act, 2000 (as amended).

In India the Information Technology Act 2000 was passed to


provide legal recognition for transactions carried out by means of 
electronic communication. The Act deals with the law relating to

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Digital Contracts, Digital Property, and Digital Rights Any violation


of these laws constitutes a crime. The Act prescribes very high
punishments for such crimes. The Information Technology
(amendment) Act, 2008(Act 10 of 2009), has further enhanced the
punishments. Life imprisonment and ne upto rupees ten lakhs
may be given for certain classes of cyber crimes. Compensation
up to rupees ve crores can be given to affected persons if
damage is done to the computer, computer system or computer
network by the introduction of virus, denial of services etc.

The following sections are dealing with the cyber crimes:

Penalty and Compensation for damage to computer,


computer system, etc (sec. 43 IT act)
Compensation for failure to protect data (sec. 43A IT Act)
Tampering with computer source Documents (sec. 65 IT Act)
Hacking with computer systems, Data Alteration (sec. 66 IT
Act)
Sending offensive messages through communication
service, etc (sec. 66A IT Act)
Dishonestly receiving stolen computer resource or
communication device (sec. 66B IT Act)
Identity theft (sec. 66C IT Act)
Cheating by personating by using computer resource (sec.
66D IT Act)
Violation of privacy (sec. 66E IT Act)
Cyber terrorism (sec. 66F Act)
Publishing or transmitting obscene material in electronic
form (sec. 67 IT Act)
Publishing or transmitting of material containing sexually
explicit act, etc. in electronic form (sec. 67A IT Act)
Punishment for publishing or transmitting of material
depicting children in sexually explicit act, etc. in electronic
form (sec. 67B IT Act)
Preservation and Retention of information by intermediaries
(sec.67C IT Act)
Powers to issue directions for interception or monitoring or
decryption of any information through any computer
resource (sec. 69 IT Act)
Power to issue directions for blocking for public access of
any information through any computer resource (sec. 69A IT 
Act)
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Power to authorize to monitor and collect tra c data or


information through any computer resource for Cyber
Security (sec. 69B IT Act)
Un-authorized access to protected system (sec. 70 IT Act)
Penalty for misrepresentation (sec. 71 IT Act)
Breach of con dentiality and privacy (sec. 72 IT Act)
Publishing False digital signature certi cates (sec. 73 IT Act)
Publication for fraudulent purpose (sec. 74 IT Act)
Act to apply for offence or contraventions committed outside
India (sec. 75 IT Act)
Compensation, penalties or con scation not to interfere with
other punishment
(sec. 77 IT Act)
Compounding of Offences (sec.77A IT Act)
Offences with three years imprisonment to be cognizable
(sec. 77B IT Act)
Exemption from liability of intermediary in certain cases
(sec. 79 IT Act)
Punishment for abetment of offences (sec. 84B IT Act)
Punishment for attempt to commit offences (sec. 84C IT
Act)
Offences by Companies (sec. 85 IT Act)

The applications of these sections are subject to the investigating


style of investigating o cer and charge sheet led by the
investigating agency and nature of cyber crime.

In India there are number of cases led under these IT provisions


related to the cyber crime. According to the report of Home
ministry of India, In 2012 there are 2876 cases led under the
various provisions of IT act. [9]

ANALYSIS OF INDIAN CYBER LAWS


AND POLICING SYSTEM
Noted cyber law expert in the nation and Supreme Court advocate
Shri Pavan Duggal, “While the lawmakers have to be
complemented for their admirable work removing various
de ciencies in the Indian Cyber law and making it technologically
neutral, yet it appears that there has been a major mismatch
between the expectation of the nation and the resultant effect of 
the amended legislation. The most bizarre and startling aspect of

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the new amendments is that these amendments seek to make the


Indian cyber law a cyber crime friendly legislation; – a legislation
that goes extremely soft on cyber criminals, with a soft heart; a
legislation that chooses to encourage cyber criminals by lessening
the quantum of punishment accorded to them under the existing
law; ….. a legislation which makes a majority of cybercrimes
stipulated under the IT Act as bailable offences; a legislation that
is likely to pave way for India to become the potential cyber crime
capital of the world……”  [11]

Let us not be pessimistic that the existing legislation is cyber


criminal friendly or paves the way to increase crimes. Certainly, it
does not. It is a commendable piece of legislation, a landmark rst
step and a remarkable mile-stone in the technological growth of
the nation. But let us not be complacent that the existing law
would su ce. Let us remember that the criminals always go faster
than the investigators and always try to be one step ahead in
technology.

There are several loopholes in IT Act as:-

The hurry, in which the legislation was passed, without


su cient public debate, did not really serve the desired
purpose. Experts are of the opinion that one of the reasons
for the inadequacy of the legislation has been the hurry in
which it was passed by the parliament and it is also a fact
that su cient time was not given for public debate. But
many problems of the act were amended by the amended
act of 2008. [12]

Uniform law

Mr. Vinod Kumar holds the opinion that the need of the hour is a
worldwide uniform cyber law to combat cyber crime. Cyber crime
is a global phenomenon and therefore the initiative to ght it
should come from the same level. [13]

Lack of awareness

The Act of 2000 is not achieving complete success because of the


lack of awareness among the masses about their rights. Further
most of the cases are going unreported. If only the people are
vigilant about their rights, can the law protect their rights. 

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Raising a cyber army-

There is a need for a well equipped task force to deal with the new
trends of hi tech crime. The government has taken a leap in this
direction by constituting cyber crime cells in all metropolitan and
other important cities. Further the establishment of the Cyber
Crime Investigation Cell (CCIC) of the Central Bureau of
Investigation (CBI).

Cyber savvy bench

Cyber savvy judges are the need of the day. Judiciary plays a vital
role in shaping the enactment according to the order of the day.
One such stage, which needs appreciation, is the P.I.L., which the
Kerala High Court has accepted through an email.

Dynamic form of cyber crime

Speaking on the dynamic nature of cyber crime FBI Director Louis


Freeh has said, “In short, even though we have markedly improved
our capabilities to ght cyber intrusions the problem is growing
even faster and we are falling further behind.” The (de)creativity of
human mind cannot be checked by any law. Thus the only way out
is the liberal construction while applying the statutory provisions
to cyber crime cases.

Hesitation to report offences

As stated above one of the fatal drawbacks of the Act has been
the cases going unreported. One obvious reason is the non-
cooperative police force. “The police are a powerful force today
which can play an instrumental role in preventing cybercrime. At
the same time, it can also end up wielding the rod and harassing
innocents, preventing them from going about their normal cyber
business.” For complete realization of the provisions of this Act a
cooperative police force is required. [14]

Apart from these loopholes and problems the present form of


police system and many police o cials are not familiar with the
cyber crimes and they need training to be familiar with the “Modus
operandi” of cyber crimes though the existing relevant act is
comprehensive legislation but from the practical point of view
there are some shortcomings in the errant form of the act. It is the

need of the hour that the e ciency of police system at all ranks

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should be upgraded in terms of cyber crimes. The immoral, lethal


minds of criminals take advantages of ine cient police system.

Both bench and Bar should realize the extent of cyber crimes. They
should familiarize themselves with the intricacies of cyber law,
otherwise they would nd it extremely di cult to deal with cyber
crime cases.

CYBER CRIME CASES IN INDIA


Pune Citibank Mphasis Call Center Fraud

It is a case of sourcing engineering. US $ 3, 50,000 from City bank


accounts of four US customers were dishonestly transferred to
bogus accounts in Pune, through internet. Some employees of a
call centre gained the con dence of the

US customers and obtained their PIN numbers under the guise of


helping the customers out of di cult situations.. Later they used
these numbers to commit fraud. By April 2005, the Indian police
had tipped off to the scam by a U.S. bank, and quickly identi ed
the individuals involved in the scam. Arrests were made when
those individuals attempted to withdraw cash from the falsi ed
accounts, $426,000 was stolen; the amount recovered was
$230,000.

Court held that Section 43(a) was applicable here due to the
nature of unauthorized access involved to commit transactions.

State of Tamil Nadu Vs Suhas Katti

The case related to posting of obscene, defamatory and annoying


message about a divorcee woman in the yahoo message group. E-
Mails were also forwarded to the victim for information by the
accused through a false e-mail account opened by him in the
name of the victim. The posting of the message resulted in
annoying phone calls to the lady in the belief that she was
soliciting.  Based on a complaint made by the victim in February
2004, the Police traced the accused to Mumbai and arrested him
within the next few days. This is considered as the rst case in the
state of Tamil Nadu, in which the offender was convicted under
section 67 of Information Technology Act 2000 in India.

The Bank NSP Case

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The Bank NSP case is the one where a management trainee of the
bank was engaged to be married. The couple exchanged many
emails using the company computers. After some time the two
broke up and the girl created fraudulent email ids such as “Indian
bar associations” and sent emails to the boy’s foreign clients. She
used the banks computer to do this. The boy’s company lost a
large number of clients and took the bank to court. The bank was
held liable for the emails sent using the bank’s system.

SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra

In this case, the defendant Jogesh Kwatra being an employee of


the plaintiff company started sending derogatory, defamatory,
obscene, vulgar, lthy and abusive emails to his employers as also
to different subsidiaries of the said  company all over the world
with the aim to defame the company and its Managing Director.
The Delhi High Court restrained the defendant from sending
derogatory, defamatory, obscene, vulgar, humiliating and abusive
emails either to the plaintiffs or to its sister subsidiaries all over
the world including their Managing Directors and their Sales and
Marketing departments. Further, Hon’ble Judge 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 signi cance as this is for
the rst time that an Indian Court assumes jurisdiction in a matter
concerning cyber defamation and grants an injunction restraining
the defendant from defaming the plaintiffs by sending defamatory
emails.

Sony.Sambandh.Com Case

A complaint was led by Sony India Private Ltd, which runs a


website called www.sonysambandh.com, targeting Non Resident
Indians. In May 2002, someone logged onto the website under the
identity of Barbara Campa and ordered a Sony Colour Television
set and a cordless head phone. She gave her credit card number
for payment and requested that the products be delivered to Arif
Azim in Noida. After one and a half months the credit card agency
informed the company that this was an unauthorized transaction
as the real owner had denied having made the purchase. The
company lodged a complaint for online cheating at the Central

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Bureau of Investigation. The court convicted Arif Azim for cheating


under Section 418, 419 and 420 of the Indian Penal Code. This
was the rst time that a cyber crime has been convicted. The
judgment is of immense signi cance for the entire nation. Besides
being the rst conviction in a cyber crime matter, it has shown that
the Indian Penal Code can be effectively applied to certain
categories of cyber crimes which are not covered under the
Information Technology Act 2000.

Nasscom v. Ajay Sood & Others

The plaintiff in this case was the National Association of Software


and Service Companies (Nasscom), India’s premier software
association. The defendants were operating a placement agency
involved in head-hunting and recruitment. In order to obtain
personal data, which they could use for purposes of head-hunting,
the defendants composed and sent e-mails to third parties in the
name of Nasscom. The High court recognised the trademark
rights of the plaintiff and passed an injunction restraining the
defendants from using the trade name or any other name
deceptively similar to Nasscom. According to the terms of
compromise, the defendants agreed to pay a sum of Rs1.6 million
to the plaintiff as damages for violation of the plaintiff’s trademark
rights. The Delhi HC stated that even though there is no speci c
legislation in India to penalize phishing, it held phishing to be an
illegal act by de ning it under Indian law as “a misrepresentation
made in the course of trade leading to confusion as to the source
and origin of the e-mail causing immense harm not only misused.”
The court held that, to the consumer but even to the person whose
name, identity or password is act of phishing as passing off and
tarnishing the plaintiff’s image.

This case achieves clear milestones: It brings the act of “phishing”


into the ambit of India laws even in the absence of speci c
legislation; It clears the misconception that there is no” damages
culture” in India for violation of IP rights.

Bazee.com case

On 9 December 2004 a news item appeared with the Headline


“DPS sex video at baazee.com”. The news item stated: “India’s
biggest online trading portal baazee.com had listed the said MMS 
clip under the title ‘DPS girls having fun’ with the member ID of

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27877408. CEO of the website Baazee.com was summoned by the


Delhi High Court for having allowed this clip to be listed for auction
under sections 67 and 85 of the IT Act, 2000. While Section 67
prohibits publishing obscene information in electronic form,
Section 85 allows the prosecution of a person responsible for the
business of a company over violations. This incident caused a
sudden panic across the country and many discussions regarding
the ine ciency of the IT Act, 2000 and the need to amend it
started. Also, after this scandal, owing to debates around
culpability, liability and prosecution of material on the internet,
several key judgments were passed including banning the use of
mobile phones in college and school campuses across India.

PNB, Pune case

In the largest compensation awarded in legal adjudication of a


cyber crime dispute, Maharashtra’s IT secretary Rajesh Aggarwal
has ordered Punjab National Bank to pay Rs 45 lakh to Manmohan
Singh Matharu, MD of Pune-based rm Poona Auto Ancillaries. A
fraudster had transferred Rs 80.10 lakh from Matharu’s account in
PNB, Pune after Matharu responded to a phishing email. Matharu
has been asked to share the liability since he responded to the
phishing mail. Matharu’s is one of 13 e-fraud cases, all originating
in Maharashtra and with an imprint across six states, in which the
state’s IT secretary, serving as an adjudicating o cer under the IT
Act 2000, last month passed critical orders against nine banks,
four telecom rms and two mobile recharge portals. These cases
cover e-fraud committed through illegal data access, hacking bank
accounts, cloning credit cards, issuing duplicate SIM cards and
phishing, among others.

Syed Asifuddin and Ors. Vs. The State of Andhra Pradesh

In this case, Tata Indicom employees manipulated the electronic


32- bit number (ESN) programmed into cell phones theft were
exclusively franchised to Reliance Infocomm. Court held that
tampering with source code invokes Section 65 of the Information
Technology Act.

Bomb Hoax mail

In 2009, a 15-year-old Bangalore teenager was arrested by the



cyber crime investigation cell (CCIC) of the city crime branch for

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allegedly sending a hoax e- mail to a private news channel. In the


e-mail, he claimed to have planted ve bombs in Mumbai,
challenging the police to nd them before it was too late.

The Mumbai police have registered a case of ‘cyber terrorism’—the


rst in the state since an amendment to the Information
Technology Act—where a threat email was sent to the BSE and
NSE on Monday. The MRA Marg police and the Cyber Crime
Investigation Cell are jointly probing the case. The suspect has
been detained in this case.

The MRA Marg police have registered forgery for purpose of


cheating, criminal intimidation cases under the IPC and a cyber-
terrorism case under the IT Act.

COMPARATIVE STUDY
As against the alone legislation ITA and ITAA in India, in many
other nations globally, there are many legislations governing e-
commerce and cyber crimes going into all the facets of cyber
crimes. Data Communication, storage, child pornography,
electronic records and data privacy have all been addressed in
separate Acts and Rules giving thrust in the particular area
focused in the Act.

United States of America

USA have the Health Insurance Portability and Accountability Act


popularly known as HIPAA which inter alia, regulates all health and
insurance related records, their upkeep and maintenance and the
issues of privacy and con dentiality involved in such records.The
Sarbanes-Oxley Act (SOX) signed into law in 2002 mandated a
number of reforms to enhance corporate responsibility, enhance
nancial disclosures, and combat corporate and accounting fraud.
Besides, there are a number of laws in the US both at the federal
level and at different states level like the Cable Communications
Policy Act, Children’s Internet Protection Act, and Children’s Online
Privacy Protection Act etc.

United Kingdom

In the UK, the Data Protection Act and the Privacy and Electronic
Communications Regulations etc are all regulatory legislations 
already existing in the area of information security and cyber crime

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prevention, besides cyber crime law passed recently in August


2011.

Similar to these countries we also have cyber crime legislations


and other rules and regulations in other nations like Australia, New
Zealand, China etc.

INTERPOL’S ROLE:-

INTERPOL’s cybercrime programme is built around training and


operations and works to keep up with emerging threats. It aims to:

¾      Promote the exchange of information among member


countries through regional working parties and conferences;

¾      Deliver training courses to build and maintain professional


standards;

¾    Coordinate and assist international operations;

¾    Establish a global list of contact o cers available around the


clock for cybercrime investigations (the list contained 134
contacts at the end of 2012);

¾      Assist member countries in the event of cyber-attacks or


cybercrime investigations through investigative and database
services;

¾      Develop strategic partnerships with other international


organizations and private sector bodies;

¾      Identify emerging threats and share this intelligence with


member countries;

¾      Provide a secure web portal for accessing operational


information and documents.

Cyber crimes cases in other Countries

Worm Attack: First person to be prosecuted under the


‘Computer and Fraud Act, 1986’ was the Robert Tappan
Morris well Known as First Hacker. His worm was
uncontrollable due to which around 6000 computer
machines were destroyed and many computers were shut
down until they had completely malfunctioned. He was

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ultimately sentenced to three years probation, 400 hours of


community service and assessed a ne of $10500.

Hacker Attack:  A Ph.D. student of the University of Southern


California, in the year 1983, made a short programme as an
experiment that could “infect” computers, make copies of it,
and spread from one machine to another. A professor of his
suggested the name “virus”. Now that student runs a
computer security rm.

Internet Hacker: Wang Qun, alias “playgirl”, was arrested


making the rst ever arrest of an internet hacker in China. He
was a 19 year old computing student, arrested in connection
with the alleged posting of pornographic material on the
homepages of several government-run web sites.

CONCLUSION
Cyber crime is a new form of crime that has emerged due to
computerization of various activities in an organization in a
networked environment. With the rapid growth of information
technology cyber crimes are a growing threat.

Technology has a negative aspect as it facilitates commercial


activity. Ordinarily the law keeps pace with the changes in
technology but the pace of technological developments in the
recent past, especially in the eld of information and technology is
impossible to keep pace with legal system. An important concern
relates to modernizing penal laws of many countries which
predate the advent of computers. On the one hand, the existing
laws have to be change to cope with the computer related fraud
such as hacking, malicious falsi cation or erasure of data,
software theft, software attacks etc. and on the other, new
legislation is also necessary to ensure data protection and piracy.
The need for a law on data protection is paramount if India is to
sustain investor con dence, especially among foreign entities that
send large amounts of data to India for back-o ce operations.
Data protection is essential for outsourcing arrangements that
entrust an Indian company with a foreign company’s con dential
data or trade secrets, and/or customers’ con dential and personal
data.

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Also in the above chapters we have talked about the Indian police
system for cyber crimes which is subjected to the improvisation,
and a new and clear speci c legislation which can ght easily
against the cyber crimes. Further the proposed initiatives and
amendments by government to the IT act, which are likely to be
implemented, soon will be implemented as soon as possible. The
proposed amendments widen the liability for breach of data
protection and negligence in handling sensitive personal
information. Additionally, the Government of India, with the help of
the Department of Information Technology, is currently working on
a holistic law on data protection based on the European Union
directive. Further, the government plans to create a “Common
Criterion Lab,” backed by the Information Security Technical
Development Council, where intensive research in cryptography
and product security can be undertaken.  As Prevention is always
better than cure, a smart internet user should take certain
precautions while operating the internet and should follow certain
preventive measures for cyber crimes, these measures can be
considered as suggestions also:

A person should never send his credit card number to any


site that is not secured, to guard against frauds.

One should avoid disclosing any personal information to


strangers via e-mail or while chatting.

One must avoid sending any photograph to strangers by


online as misusing of photograph incidents increasing day by
day.

It is always the parents who have to keep a watch on the


sites that your children are accessing, to prevent any kind of
harassment or depravation in children.

Web site owners should watch tra c and check any


irregularity on the site. It is the responsibility of the web site
owners to adopt some policy for preventing cyber crimes as
number of internet users are growing day by day.

Strict statutory laws need to be passed by the Legislatures


keeping in mind the interest of netizens (cybercitizen or an
entity or person actively involved in online communities and

a user of the Internet).

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Web servers running public sites must be physically


separately protected from internal corporate network.

An update Anti-virus software to guard against virus attacks


should be used by all the netizens and should also keep back
up volumes so that one may not suffer data loss in case of
virus contamination.

It is better to use a security program by the body corporate to


control information on sites.
IT department should pass certain guidelines and
noti cations for the protection of computer system and
should also bring out with some more strict laws to
breakdown the criminal activities relating to cyberspace.

As Cyber Crime is the major threat to all the countries


worldwide, certain steps should be taken at the international
level for preventing the cybercrime.

Special police task force which is expert in techno eld will


be constituted.

Complete justice must be provided to the victims of cyber


crimes by way of compensatory remedy and offenders to be
punished with highest type of punishment so that it will
anticipate the criminals of cyber crime. [15]

Edited By Parul Padhi

[1] http://cybercellmumbai.gov.in accessed on 1 Dec 2013

[2] Information Technology Act, 2000A computer has multifarious


functions and it is regarded as a superman. It provides information
as well as communication by means of internet. It is the fastest
mean for input and output of transportation of informations. In
o cial meaning, the term “internet” is popularly known as “world
wide web” (www)

[3] http://www.legalindia.in accessed on 1 Dec 2013

[4] http://cybercellmumbai.gov.in accessed on 1 Dec 2013

[5] Ibid

[6] http://jurisonline.in accessed on 2nd Dec 2013 

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9/14/2018 Crimes in Cyberspace: Right to Privacy and Other Issues - Academike

[7] http://www.mha.nic.in accessed on 4th Dec 2013

[8] Ibid

[90 Ibid

[10] Ibid

[11] Pawan Duggal, Is this treaty a treat? Available at


http://www.naavi.org/pati/pati_cybercrimes_dec03.htm

[12] Ibid

[13] Kumar Vinod, Winning the Battle against cyber Crimes


available at
http://www.cyberriskinsuranceforum.com/content/are-we-losing-
battle-against-cyber-crime

[14] Dewang Mehta, Role of Police in Tackling Cyber Crimes


available at
http://www.naavi.org/pati/pati_cybercrimes_dec03.htm

[15] Ibid

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