Cyberlaws in India

Q.1. What is the introductory background for Cyberlaws ?

Since the beginning of civilization, man has always been motivated by the need to make progress and better the existing technologies. This has led to tremendous development and progress which has been a launching pad for further development. Of all the significant advances made by mankind from the beginning till date, probably the important of them is the development of Internet. To put in a common man's language, Internet is a global network of computers, all of them speaking the same language. In 1969, America's Department of Defense commissioned the construction of a Super network called ARPANET. The Advanced Research Projects Agency Network (ARPANET), basically intended as a military network of 40 computers connected by a web of links & lines. This network slowly grew and the Internet was born. By 1981, over 200 computers were connected from all around the world. Now the figure runs into millions.

The real power of today's Internet is that it is available to anyone with a computer and a telephone line. Internet places at an individual's hands the immense and invaluable power of information and communication.

Internet usage has significantly increased over the past few years. The number of data packets which flowed through the Internet have increased dramatically. According to International Data Corporation ("IDC"), approximately 163 million individuals or entities will use the Internet by the end of this year as opposed to 16.1 million in 1995. If left to its own measure, it is highly unlikely that such a trend can reverse itself. Given this present state of the Internet, the necessity of Cyberlaws becomes all the more important .

Q.2. Why is there a need for Cyberlaw ?
When Internet was developed, the founding fathers of Internet hardly had any inclination that Internet could transform itself into an all pervading revolution which could be misused for criminal activities and which required regulation. Today, there are many disturbing things happening in cyberspace. Due to the anonymous nature of the Internet, it is possible to engage into a variety of criminal activities with impunity and people with intelligence, have been grossly misusing this aspect of the Internet to perpetuate criminal activities in cyberspace. Hence the need for Cyberlaws.


Q.3. What is Cyberlaw ?

Internet is believed to be full of anarchy and a system of law and regulation therein seems contradictory. However, cyberspace is being governed by a system of law and regulation called Cyberlaw. There is no one exhaustive definition of the term "Cyberlaw". Simply speaking, Cyberlaw is a generic term which refers to all the legal and regulatory aspects of Internet and the World Wide Web. Anything concerned with or related to or emanating from any legal aspects or issues concerning any activity of netizens and others, in Cyberspace comes within the ambit of Cyberlaw. The growth of Electronic Commerce has propelled the need for vibrant and effective regulatory mechanisms which would further strengthen the legal infrastructure, so crucial to the success of Electronic Commerce. All these regulatory mechanisms and legal infrastructures come within the domain of Cyberlaw.


Q.4. What is the importance of Cyberlaw ?

Cyberlaw is important because it touches almost all aspects of transactions and activities on and concerning the Internet, the World Wide Web and Cyberspace. Initially it may seem that Cyberlaws is a very technical field and that it does not have any bearing to most activities in Cyberspace. But the actual truth is that nothing could be further than the truth. Whether we realize it or not, every action and every reaction in Cyberspace has some legal and Cyber legal perspectives.


Q.5. Does Cyberlaw concern me ?

Yes, Cyberlaw does concern me. As the nature of Internet is changing and this new medium is being seen as the ultimate medium ever evolved in human history, every activity of yours in Cyberspace can and will have a Cyberlegal perspective. From the time you register your Domain Name, to the time you set up your web site, to the time you promote your website, to the time you conduct electronic commerce transactions on the said site, at every point of time, there are various Cyberlaw issues involved. You may not be bothered about these issues today because you may feel that they are very distant from you and that they do not have an impact on your Cyber activities. But sooner or later, you will have to tighten your belts and take note of Cyberlaw for your own benefit.

For example, you may knowingly or unknowingly book a Domain Name, say www.xyx.com which may be the trade mark of any other company, person or legal entity in any part of the world, say B. Domain Names are given to you on first come first served basis. But you may be involved by the other party being B in a Cyber legal dispute which may allege that you are deliberately involved in the practice of Cyber squatting (the practice of knowingly registering the trade mark of any legal entity, company or person with the intention of holding on to it and thereafter selling the same to the said legal entity, company or person at a handsome premium). You may also be involved in Cyber litigation as the concerned party, B, may approach the World Intellectual Property Organisation (WIPO) for adjudicating the matter and WIPO by a summary procedure may direct you to relinquish and release the said Domain Name to B, the concerned party. Needless to say, it shall be incumbent on the concerned party, B, to produce all documentary and other evidence to substantiate its claim to the concerned Domain Name. This is just one of the many examples that show the importance of Cyberlaw for you .


Q.6. What is the general awareness about Cyberlaw today ?

Today, the awareness about Cyberlaw is beginning to grow. Many technical experts in the beginning felt that legal regulation of Internet is not necessary. But with the rapid growth of technologies and Internet, it is crystal clear that no activity on Internet can remain free from the influence of Cyberlaw. Publishing a Web page is an excellent way for any commercial business or entity to vastly increase its exposure to millions of persons, organisations and governments world-wide. It is that feature of the Internet which is causing much controversy in the legal community.


Q.7. Is Cyberlaw constantly evolving ?

Yes, Cyberlaw is constantly being evolved. As new and new opportunities and challenges are surfacing, Cyberlaw, being a constantly evolving process, is suitably modifying itself to fit the call of the time. As the Internet grows, numerous legal issues arise. These issues vary from Domain Names, to Intellectual Property Rights to Electronic Commerce to Privacy to Encryption to Electronic Contracts to Cybercrime to Online Banking to Spamming and so on. The list is very long.


Q.8. What is the stage of development of Cyberlaw today ?

Cyberlaw today, on a global scale, is at an early stage of development. Just as different civilizations and societies in history have taken time to develop and refine their legal systems, in the case of Internet too, it will take some time for Cyberlaws to be fully developed and refined. Different countries in different parts of the world are adopting their own strategies to this new field .

DOMAIN NAMES
Q.9. What is an IP address ?

The Internet is a network of computers. Each computer on the said network has its own distinct entity and presence. That is the reason why every computer is given a distinct Electronic Address called the Internet Protocol address or in short IP address. This IP address is given by numerical values like 202.54.15.75. The IP address is just like any telephone number which identifies a particular computer on the Internet.


Q.10. What is a Domain Name ?

Since it is not possible to remember each and every numerical value of an IP address, the system of domain names evolved. Internet domain names, in a common man's language, are used as an easy-to-remember alias which point to a specific IP address. The dominant purpose of the domain name is simply to provide an easy method for remembering another's electronic address. It's a unique name used to identify, among other things, a specific Web site. Thus a typical domain name would be http://www.indiainfoline.com.


Q.11. What are the components of a Domain Name ?

Any domain name consist of two components, namely the top level domain name(TLD) and a second level domain name. Thus in the said example, http://www.indiainfoline.com, ".com" would be the top level domain name while "indiainfoline" would be second level domain name.


Q.12. What are the categories of Top Level Domain Names (TLDs)?

As on date, there are two categories of top level domain names. In the first category comes the domain names .com, .net, .org, .edu. When the system of registering domain names began, the norms were that the .com name is to be given to commercial organizations, while others such as .org, .net, .gov and .edu are to be assigned to non-commercial organizations, network providers, government agencies and educational institutions respectively. However, as time has passed, due to the enhanced volumes of domain name registrations, the said norms have been abandoned and today anyone can, without any restriction of any kind whatsoever, can register any domain name.

The second category of top level domain names is the country code TLDs denoted by a two letter country code. For instance, the top level domain name for India is .in. The responsibility for assigning the same is given in each country to a specified country domain name registrar. In India, the TLD.in is registered by NCST at Bombay.


Q.13. Who registers Domain Names ?

The domain names were initially registered by Network Solutions only, who had the sole monopoly to register the said TLDs. This monopoly of Network Solutions continued for many years and only in 1999, the Internet Corporation Assigned Names and Numbers (ICANN) allowed other accredited registrars to register domain names. Today there are more than 100 registrars with whom one can register a TLD.


Q.14. What is the unique feature of Domain Names ?

The unique feature of domain names is that the said domain names are given on "first come, first served" basis. This feature of domain names gives rise to numerous legal issues and disputes. Thus the important thing in domain names registration is speed. To take an example, the domain name www.microsoft.org was available and was registered by Amit Mehrotra much before Microsoft Corporation could think of it. This led to numerous ticklish legal issues. Microsoft Corporation, despite having the trademark Microsoft, could not get the domain name www.microsoft.org because of the "first come, first served" criteria of domain name registration.


Q.15. How are Domain Names different from Trade Marks ?

To put it simply, Domain names are indeed different from trademarks. While it is possible that the same trademark may be registered by different persons in different categories and different lines of businesses, it may be possible to only register one domain name corresponding to such trademark. This aspect of domain names has led to numerous legal problems.


Q.16. What is Cybersquatting ?

Another legal issue surrounding domain names is that of Cybersquatting.Cybersquatting is the practice by means of which a person or legal entity books up the trade mark, business name or service mark of another as his own domain name for the purpose of holding on to it and thereafter selling the same domain name to the other person for valuable premium and consideration. Cybersquatters book up domain names of important brands in the hope of earning quick millions .


Q.17. What are the recent trends relating to tackling Cybersquatters ?

The Internet history has shown that while some corporate players have been willing to and have indeed coughed up money to get back their legitmate domain names, the recent trend is more towards taking the cybersquatters by the horns and fighting them out by legal processes. Courts throughout the world, including in India, have been proactive and have been granting injunctions to stop cybersquatters from operating their web sites.


Q.18. What is the latest most effective remedy against Cybersquatting ?

The latest breath of fresh air in the fight against Cybersquatting has been the Uniform Domain Name Dispute Resolution Policy which has been duly approved by ICANN. Under the said Domain Names Dispute Resolution Policy, a summary procedure is adopted to adjudicate the complaint of any complainant relating to any domain name on payment of processing fees. This policy has been in operation since the end of last year.


Q.19. Under the Uniform Domain Name Dispute Resolution Policy, have the Indian companies had any success ?

Under the said policy, Indian companies are also beginning to get back their legitimate domain names. The domain name www.theeconomictimes.com and www.timesofindia.com have been won back under the said policy. Two recent success for Indian Companies under the said policy include winning back the domain names www.tata.org and www.philipsindia.com by TATA and Philips India respectively.

CYBERCRIME
Q.20. What is Cybercrime ?
When Internet was developed, the founding fathers of Internet hardly had any inclination that Internet could also be misused for criminal activities. Today, there are many disturbing things happening in cyberspace. Cybercrime refers to all the activities done with criminal intent in cyberspace. These could be either the criminal activities in the conventional sense or could be activities, newly evolved with the growth of the new medium. Because of the anonymous nature of the Internet, it is possible to engage into a variety of criminal activities with impunity and people with intelligence, have been grossly misusing this aspect of the Internet to perpetuate criminal activities in cyberspace. The field of Cybercrime is just emerging and new forms of criminal activities in cyberspace are coming to the forefront with the passing of each new day.


Q.21. Do we have any one exhaustive definition of Cybercrime ?

There can be no one exhaustive definition about Cybercrime. However, any activities which basically offend human sensibilities, can also be included in its ambit. Child Pornography on the Internet constitutes one serious Cybercrime. Similarly, online pedophiles, using internet to induce minor children into sex, are as much Cybercriminals as any others.


Q.22. What are the various categories of Cybercrimes ?

Cybercrimes can be basically divided into 3 major categories being Cybercrimes against persons, property and Government.

Q.23. Tell us more information about Cybercrimes against persons ?

Cybercrimes committed against persons include various crimes like transmission of child-pornography, harassment of any one with the use of a computer such as e-mail, and cyber-stalking.
The trafficking, distribution, posting, and dissemination of obscene material including pornography, indecent exposure, and child pornography, constitutes one of the most important Cybercrimes known today. The potential harm of such a crime to humanity can hardly be overstated. This is one Cybercrime which threatens to undermine the growth of the younger generation as also leave irreparable scars and injury on the younger generation, if not controlled.


Q.24. Is Cyber harassment also a Cybercrime ?

Cyber harassment is a distinct Cybercrime. Various kinds of harassment can and does occur in cyberspace, or through the use of cyberspace. Harassment can be sexual, racial, religious, or other. Persons perpetuating such harassment are also guilty of cybercrimes. Cyber harassment as a crime also brings us to another related area of violation of privacy of netizens. Violation of privacy of online citizens is a Cybercrime of a grave nature. No one likes any other person invading the precious and extremely touchy area of his or her own privacy which the medium of Internet grants to the netizen.


Q.25. What are Cybercrimes against property ?

The second category of Cybercrimes is that of Cybercrimes against all forms of property. These crimes include unauthorized computer trespassing through cyberspace, computer vandalism, transmission of harmful programs, and unauthorized possession of computerized information.


Q.26 . Is hacking a Cybercrime ?

Hacking and cracking are amongst the gravest Cybercrimes known till date. It is a dreadful feeling to know that a stranger has broken into your computer systems without your knowledge and consent and has tampered with precious confidential data and information. Coupled with this , the actuality is that no computer system in the world is hacking proof. It is unanimously agreed that any and every system in the world can be hacked. The recent denial of service attacks seen over the popular commercial sites like E-bay, Yahoo, Amazon and others are a new category of Cybercrimes which are slowly emerging as being extremely dangerous. Using one's own programming abilities as also various programmes with malicious intent to gain unauthorized access to a computer or network are very serious crimes. Similarly, the creation and dissemination of harmful computer programs or virii which do irreparable damage to computer systems is another kind of Cybercrime. Software piracy is also another distinct kind of Cybercrime which is perpetuated by many people online who distribute illegal and unauthorised pirated copies of software.

Q.27. What is Cybercrime against Government ?

The third category of Cybercrimes relate to Cybercrimes against Government. Cyber Terrorism is one distinct kind of crime in this category. The growth of Internet has shown that the medium of Cyberspace is being used by individuals and groups to threaten the international governments as also to terrorise the citizens of a country. This crime manifests itself into terrorism when an individual "cracks" into a government or military maintained website.


Q.28. Is there any comprehensive law on Cybercrime today ?

Since Cybercrime is a newly specialised field, growing in Cyberlaws, a lot of development has to take place in terms of putting into place the relevant legal mechanism for controlling and preventing Cybercrime. As of now, there is absolutely no comprehensive law on Cybercrime any where in the world. This is reason that the investigating agencies like FBI are finding the Cyberspace to be an extremely difficult terrain. These various Cybercrimes fall into that grey area of Internet law which is neither fully nor partially covered by the existing laws and that too in some countries.

Q.29. Is there any recent case which demonstrates the importance of having Cyberlaw on Cybercrime within the national jurisdictions of countries ?

The most recent case of the virus "I love you" demonstrates the need for having cyberlaws concerning Cybercrimes in different national jurisdictions. At the time of the web publication of this feature, Reuters has reported that "The Philippines has yet to arrest the suspected creator of the 'Love Bug' computer virus because it lacks laws that deal with computer crime, a senior police officer said". The fact of the matter is that there are no laws relating to Cybercrime in the Philippines. The National Bureau of Investigation is finding it difficult to legally arrest the suspect behind the 'Love Bug' computer virus. As such, the need for countries to legislate Cyberlaws relating to Cybercrime arises on an urgent priority basis.

Q.30. What is the approach adopted by US Courts regarding Cybercrimes ?

The courts in United States of America have already begun taking cognizance of various kinds of fraud and Cybercrimes being perpetuated in Cyberspace. For the victims of various Cybercrimes, there is no one healing remedy. They can either file for civil damages or wait for the culprits to be nabbed and then to be tried under provisions, existing or envisaged which are not comprehensive at all. However, a lot of work has to be done in this field. Just as human mind is ingenious enough to devise new ways for perpetuating crime, similarly, human ingenuity needs to be channelised into developing effective legal and regulatory mechanisms to control and prevent Cybercrimes.

Q.31. Why do we need to fight Cybercrime ?

We all must remember that Cyberspace is a common heritage of ours which we have inherited in our life times from the benefits of ever growing technologies. This Cyberspace is the lifeline of the entire universe and given its irreversible position today, it is the duty of every netizen to contribute toward making the said cyberspace free of any trouble or cybercrime. To rephrase the famous words of Rabindra Nath Tagore in today's context, "Where the Cyberspace is without fear or crime and the head is held high, where knowledge is free, where tireless striving stretches its arms towards perfection, ….. into that cyber heaven of freedom, O my father, let our humanity awake."