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Saturday, May 21, 2005

An amateur's take on the Information Technology Act

It seems the author of this article has a passing knowledge of the IT ACT and IPC.


Sunil J Thacker reflects on the task before the judiciary
to make up for the lacunas in the Indian IT Act (Source : Lawyers Collective Website]

Accessing one's mail without his/her consent, understanding his personal data and later forwarding it to other(s) would amount to infringement of privacy under the Information Technology Act, 2000 (IT Act) or would attract a suit for defamation under Indian Penal Code, 1980 (IPC).

The Cyber Industry has long talked of self-regulations, but has failed to check the abuse and violation of individual privacy. And now it is in the hands of judiciary to take into account the importance, vitality and significance of privacy, not only for a citizen, but also for a netizen/netsurfer.

Section 43(a) of the IT Act reflects on the infringement of privacy wherein penalty of Rs. 1 Crore is attracted. However, where privacy has not merely been interrupted but has been leaked, it tantamount to defamation and hence, Section 499 of IPC is attracted. No man has the right to disparage or destroy the reputation of another. Conversely, every person has a right to have his good name maintained.

The Indian IT Act is full of discrepancies and lacunas. It may be noted that, although the Act has been enacted, the daily used terms by a netsurfer like password, E-mail, web-page and the like are not defined under the Act.

In an interesting case, a person had logged on to the net and chatted on with a lady's name without her consent, after she had logged off, and forwarded her telephone numbers and allied details to people who were logged on at that time to the net. This made the lady's life miserable, as she had to attend crank calls at any time. She lodged a complaint against that person. But the case was filed under the IPC and not under the IT Act, although the provisions of IT Act were clearly violated.

Further, regarding dealing with passwords, it is interesting to note that one might also take the plea that it was not him who interrupted the privacy of another, but it was in fact in the memory of Computer. It may be noted that, many times, password is retained under a check- box1 that is normally below the password field, and such technicalities are in real life hard to evaluate and assess.

User Name :

Password :

Again the question would arise: How would one prove that it was the accused, who has breached the privacy? In many instances, there is no proof that such an act infringed the privacy. But if such alleged act amounts to defamation, one can move the court in that regard under the purview of Section 499 of the IPC.

Further, though the IPC is amended with respect to IT Act, the question would arise as to whether anything in context to e-mail fall under the purview of Section 499 of the IPC? In my opinion, Yes, as Section 499 clearly states "Whoever by words either spoken or intended to be read, by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person." Further, facts of every case have to be examined very carefully as to whether or not one can claim protection or file a suit under the exceptions provided in the said section, which,

1. relates to imputation made/done for public good

2. reflects acts done in good faith

3. refers to conduct with respect to Public good

4. with respect to Justice of peace making inquiry in Court.

5. deals with cases decided, be it Civil or Criminal by Courts of Justice

6. with respect to judgment of public, character of authorities

7. It emits act of imputation committed on basis of authority contended by law or lawful contracts in good faith

However, as the IT Act is yet emerging, the party so defamed due to such violation of its privacy, can either claim damages of 1 Crore under Section 43 the IT Act, or can move the court for defamation. In cases of defamation, the Courts have to consider the following aspects to assess damages, namely the conduct of the Plaintiff, position and standing, the nature of libel, absence or refusal of any apology and the whole conduct of Plaintiff from date of publication to the date of decree.

In a recent case of Vivek Goenka and Others v YR Patil, 2000 7 SC 468, the court has held that it will be for the accused to prove that he was protected by the exceptions laid down in Section 499 of the IPC. A civil action in defamation should be based on `Justice, Equity and Good Conscious', and as the same is not a codified law, hence the terms are to be interpreted accordingly.

Similarly an issue would arise for every legal professional as to whether opening of a Website/Webpage would amount to Professional misconduct. This had been a recent Moot issue. I would like to bring it to the attention of the readers about the same in the following passage.

Firstly, if professionals do provide their information under the Yellow Pages, wherein instances have come to my view, certain advertisements do provide/reflect areas of Specialization (which is clearly violative of Professional Conduct and Code of Etiquette), but such mode of communication has been accepted today. Secondly, with reference to providing information on the net, unless and until one does not inform another about his/her website, it is not violative of professional misconduct. To put it in technical terms, unless there is a hyperlink one cannot access the site. To cite an example, Mr A, a practising legal professional, opens a web page and links his website to Mr B's website, who is his friend, dealing in Cosmetics. In this case, when any one who accesses to the website of Mr B automatically gets linked to the website of Mr A. If such hyperlink exists it is a gross misconduct

It is also interesting to note that due to the introduction of Internet and the IT Act, serious amendments has been made in the Code of Criminal Procedure, 1973, the Indian Penal Code, 1980, The Indian Evidence Act, 1872, The Banking Regulation Act, 1949, but no Act for the professionals like the Chartered Accountants, Company Secretary or Lawyers have been introduced.

Now a question would arise, what if one (Indian Legal Professional) develops his website in the United Kingdom (UK) and registers the same in Sri Lanka. Once the site is in the air, it can be accessed by anyone throughout the globe. In this case, even if such a hyperlink were provided, would it amount to professional misconduct? This issue would be dealt by taking into account, whether the aforesaid two countries do permit opening of such web page firstly in country A and registering it in country B? And whether there is any person of either two aforesaid countries associated with such Indian in opening of web site?

And, how would one deal with Pornography? Taking the above example if Mr A (Indian) with help of Mr B (European) opens a Porn site in UK (which is say, permitted there) and puts it on the net would he fall under the Indian IT Act?

These issues can be solved only in the courts and it is in the hands of panel of jury assessing such cases.
Conclusion:

There is an immediate and urgent need to curb crimes under the Information and Technology Act, which is possible not only by mere implementation but does need a sparkling change so that in the near future no person can take the lacuna of the aforesaid act in any manner whatsoever.

Sunil J Thacker is a Practicing Tax Consultant at Mumbai

6 Comments:

Anonymous health drinks said...

Hello sarbajit and top of the morning to you! I came across your site by accident while looking for stuff on A.C.T.. It isn't quite what I am looking for, but I enjoyed your site anyway, and can see why it came up for searches on A.C.T.. Good luck with your site and your life, and thanks again for the interesting diversion.

3:19 AM  
Blogger Kevin said...

Yes. I read the article written by Mr. Sunil Thacker here. Infact, upon doing a thorough research on the author, I was surprised to find that he is the guy who was the driving force behind the Indian I. T. Law. A law student at that time, Mr. Sunil Thacker was specially invited by the Bombay High Court as a part of committee to resolve cyber crime matters.

Check these links:

http://web.mid-day.com/1news/city/2001/october/16106.htm

www.roltanet.com/highcourt/hcfullreportvol1.pdf

4:56 PM  
Blogger sarbajit said...

very good kevin,
now will the real kevin step forward please.

5:39 PM  
Blogger Kevin said...

Hi. Could I request some more background on Indian IT law please? Yes, what would you like to know? I am pursuing my Masters in Law with specialization in IT here in Delaware.

I am doing a research for my dissertation and I need as many inputs as possible on South East Asian Law

Kevin

10:15 PM  
Blogger Kevin said...

Hi. Could I request some more background on Indian IT law please? Yes, what would you like to know? I am pursuing my Masters in Law with specialization in IT here in Delaware.

I am doing a research on IT law for South East Asian nations and I found a great deal of information on your site for India.


Kevin

10:16 PM  
Blogger Attiq Ur Rehman said...

I think this practice for the betterment of the political parties to save their systems from the spy. I hope so the politician are also supportive to this act.
Rechtsberatung

12:02 PM  

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