Cyber Laws & Information Technology (CLIT)

Dr. Aparup Pakhira

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Unit 1 Introduction to Cyber Space

Jurisprudence of Cyber Space.
Definition of Cyber Space Interface between Law and Technology.

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Jurisprudence of Cyber Space

Relation between Law and Jurisprudence
Command of sovereign...?
Derived from the customs.....?

Is law rightness (Ethics) of will...?

Is law the science of the totality...? which has majority approval, would emerge as a principle and set of such principles would thus form Jurisprudence. jurisprudence is nothing but set of majority accepted principles of a given society
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Jurisprudence of Cyber Space

In the words of Savigny--

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Jurisprudence of Cyber Space

Advanced Research Project Agency took first initiative. National Science Foundation ARPANET in 1972

Telnet emerged online in 1973

TCP and DNS came into existence in 1984

HTTP emerged along with software back up

Public Browser Mosaic launched in 1993 200 million people connected across 195 countries

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Jurisprudence of Cyber Space

Sociological approach
Already there was existence of cyber space and it is merely increasing

Technological approach
There was no existence of cyber space and it is created by us.

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Definition of Cyber Space

Virtual space with neither physical wall nor physical dimension In the document of National Military Strategy for Cyberspace Operations, cyberspace is defined as:-

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Definition of Cyber Space

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Definition of Cyber Space

Cyberspace is the virtual space of all IT systems linked at data level on a global scale. The basis for cyber space is the Internet as a universal and publicly accessible connection and transport network which can be complemented and further expanded by any number of additional data networks. IT systems in an isolated virtual space are not part of cyberspace Germany The global network of interdependent information technology infrastructures, telecommunications networks and computer processing systems in which online communication takes place . New Zealand Cyberspace is an interactive domain made up of digital networks that is used to store, modify and communicate information. It includes the internet, but also the other information .. United Kingdom
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Definition of Cyber Space

Cyberspace is the electronic world created by interconnected networks of information technology and the information on those networks. It is a gloBal commons where more than 1.7 billion people are linked together to Exchange ideas, services and friendship. .. Canada

Information Society (Archived), unknown year Word invented by the writer William Gibson in his play le Neuromacien. It describes the virtual space in which the electronic data of worldwide PCs circulate. European Union

Cyberspace is defined as the interdependent network of information technology infrastructures, and includes the Internet, telecommunications networks, computer systems, and embedded processors and controllers in critical industries. Common usage of the term also refers to the virtual environment of information and interactions between people . United States
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Interface between Law and Technology

Law is an instrument of governance of human behavior Technology may be defined as set of refined process The pace of growth of technology and governance are not Compatible raising a series of serious problems. H.A. Linstone Law can always supersede technology

We have to rethink about governance structure

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Jurisdiction

Jurisdiction and the Internet Jurisdiction and I T Act 2000. Case Study

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Jurisdiction
Meaning of the term Jurisdiction

Jurisdiction is the power of a Court to hear any case

The authority of the Court to dispose any dispute

Imposition of boundary in case of cyber crime is irrelevant

Jurisdiction is one of the prerequisite for trial of a case

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Hierarchy of Court
Supreme Court
High Court
Subordinate Courts- Special Courts/Tribunals District Judges Court

Session Judges Court

Assistant Sub Judges Court
C.J.M. Court Magistrate Court Executive Magistrate Court

Assistant Sub Judges Court

Munsiff Court

Jurisdiction
Classification of Jurisdiction :Pecuniary Jurisdiction
Subject Matter Jurisdiction Territorial Matter Jurisdiction

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The apex court of India observed, "a defect of jurisdiction strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties The Hon'ble High Court, Bombay held that "the jurisdiction of the court would be ousted, if there was a bar to the maintainability of the suit" . existing law of jurisdiction is redundant for the cyber world and an entirely different set of rules is required to govern the jurisdiction over the internet which is free from the shackles of geographical borders The term jurisdictioncovers within its ambit the authority of a sovereign to act in legislative, executive and judicial character. In the legislative character, a state has the power, exercisable as a constitutional discretion, to prescribe rules for regulating the conduct of persons. By enforcement jurisdiction is meant the power of a sovereign to effect implementation of its laws. Lastly, the power of the courts of a sovereign to hear and adjudicate upon certain matters in dispute is referred to as curial jurisdiction

Jurisdiction in Indian Context:Section 13 of the Code of Civil Procedure deals with foreign judgments

Jurisdiction by consent
Contracting party can fix Jurisdiction Section 13(d) deals with natural justice Is order of the foreign court subjected to confirmation?

Section 19 of the Code of Civil Procedure Place of residence Place of business activity Place of offence/wrong committed

Section 20 of the Code of Civil Procedure

Other suits to be instituted where defendants reside or cause of action arises .- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction (a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the Suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation : A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Section 20(c) raises these following questions: Cause of action as a complete bundle of material facts for the Plaintiff to institute a suit and failure to produce the facts will fail the case of the Plaintiff. Cause of action will even constitute the smallest fact constituting such an action and not necessarily by any defined portion of the cause of action. Cause of action will constitute the facts and circumstances of each case. Cause of action if arises partially at different places, Plaintiff is vested to initiate and claim for jurisdiction. Cause of action based on the principle of some part of it arising in India will attract the jurisdiction of Indian Courts over a nonresident foreigner.

Execution of Decrees:
Section 44 of the Code of Civil Procedure

The State Government may, by notification in the Official Gazzete, declare that the decrees of any revenue Court in any part of India to which the provisions of this Code do not extend, or any class of such decrees, may be exe Cuted in the State as if they had been passed by Courts In that State
Section 44(A) of the Code of Civil Procedure
Execution of decrees passed by Courts in reciprocating territory.(1)Where a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court. (2) Together with the certified copy of the decree shall be filed a certificate from such superior court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisf action or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

Jurisdiction under the criminal law

Section 177 of the Code of Criminal Procedure.. Section 178 of the Code of Criminal Procedure..

Section 179 of the Code of Criminal Procedure..

Section 182 of the Code of Criminal Procedure..

Jurisdiction under Information Technology Act

Relevancy of Section 13 of the I T Act
Section 13(4) of the I T Act

Section 13(5) of the I T Act

Section 13(6) of the I T Act Section 75 of the I T Act

Jurisdiction in IPR Related Issues

Jurisdiction:Prescribe Adjudicate Enforce

Theories of Jurisdiction:Subjective territoriality Objective territoriality Nationality Protective Principle Passive Nationality Universality

Territoriality
Dealt with law of the server

Nationality
In International Law Nationality is much more important.

Res nullius and res communis Pennoviya v. Neff.

Jurisdiction in personam Jurisdiction in rem

International shoe v. Washington

Non-resident of a State may be sued Court was looking for certain minimum contact Minimum contact theory

Re-construction of Minimum contact theory

Intention of the defendant Conduct of the defendant Notion of substantial justice and fair play is not violated

Effect Theory Purposeful Availment Theory Active and Passive Theory

Personal Jurisdiction
This is a requirement of constitutional due-process

Must do some act or consumate some transaction

Defendants must have some forum related activities

New York Convention of 1958

Allows arbitration and recognise foreign awards.

Hague Convention on Jurisdiction

Judgment passed by one country is enforceable in other signatory countries. There may not be any connection with the dispute. Not necessary to confirmation by local Court

The State of Tamil Nadu Vs Suhas Katti C.C.NO.4680/2004

Obscene, defamatory and annoying message was posted 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
Complaint was made by the victim in February 2004.On 24-32004 Charge Sheet was filed and judgment was on 5-11-04.

CMM Egmore by citing 18 witnesses and 34 documents and material objects The accused was punished u/s 67 of IT Act 2000, 469 and 509 IPC
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Issues

Laws

National Actions

International Actions

Contracts

Electronic Transaction Act

Hong Kong/ China, Singapore, Thailand etc.

Australia, China, HK/China, India, Japan, Malysia, New Zealand, Philippines, Singapore etc. Hong Kong/China, USA,UK,EU etc. Philippine Hong Kong/China, S.Korea, Singapore, India, EU etc.

UNCITRAL: Model Law

Harmful sites or contents

Penal Law or Legislation,

N.A.

Obscenity Law, Communication Decency Act, Obscene Publication Act Hacking & virus Intellectual Property Right (IPR) E-Commerce Act Copyright Law, Patents Law, Trade Marks Law, IPR Law, Green Paper Counterfeiting & etc. Personal Data Law Privacy Law, Directive, Self-regulation etc.

N.A. WIPO: Ratification

on Piracy

Data protection & privacy 3/25/2014

Hong Kong/China, S.Korea, EU(e.g.,D95/46/EC)[1 ] USA etc.

OECD: Guidelines on Trans-border Data Barriers & The 29 Protection of Privacy

Issues

Laws

National Actions

International Actions

Security

Electronic Transactions Act, Digital Signature Laws,

Hong Kong/China, Germany, Italy, Malaysia Singapore etc. UK (e.g., BS7799) India ITU: Recommendations ISO: Standards

Standards IT Act etc.

Taxation Domain names

Internet Tax Freedom Act etc. N.A.

USA etc. Adopt ICANN practice in many nations. EU etc. ICANN

N.A.

Consumer protection

Extension of existing consumer protection Act

N.A.

SPAM Beyond national jurisdiction 3/25/2014

Spam Bill (2003) N.A.

Australia, EU & USA N.A.

ITU: New initiative (2004)[3] ITU & ISO standards EU: Cyber-crime Treaty 30 (2002)

illegal access: the access to the whole or any part of a computer system without right illegal interception: the interception without right, made by technical means, of non-public transmissions of computer data to, from or within a computer system data interference: the damaging, deletion, deterioration, alteration or suppression of computer data without right system interference: the serious hindering without right of the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data
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misuse of devices:when committed intentionally and without right

Cyber-crime Agency called European and Network Information Security Agency (ENISA) was created in early 2004 The National Cyber Security Center (NCSC) was set up under the wing of the National intelligence Service (NIC) in South Korea in 2004
Operation Cyber Seep in the USA is being coordinated nationwide between the Justice Department, the FBI the Federal Trade Commission, postal inspectors

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