The FAQ covers the following immediate questions to which more will be added with the feedback received from the public.
1. What are the Categories of Complaints that are covered by the Adjudication Process?
2. To whom shall the complaint be made?
3. What is the format of the application?
4. What is the fee to be paid? and How?
5. What are the consequences of a "Frivolous Complaint"?
6.What are the evidences to be presented while filing a complaint?
7. How long does the Adjudication process may take?
8. What kind of compensation can one expect?
9. What if the order is not satisfactory?
10.Is it necessary to physically be present for enquiry?
11. What if the complainant does not know the suspect?
12. Can a complainant be represented by a consultant during the enquiry?
.....And More
Readers are requested to send their views as well as other questions so that the FAQ can be expanded.
Naavi
April 27,2003
1. What are the Categories of Complaints that are covered by the Adjudication Process?
The Adjudication process covers contraventions of ITA-2000 under Chapter IX of ITA-2000. This covers Section 43, 44 and 45of the Act.
If the AO is convinced that the scope of the case extends to the offences listed under Chapter XI of the Act, he shall transfer the case to the Magistrate having jurisdiction to try the case.
Section 43 covers the following types of contraventions.
Unauthorized-
(a) Access to a Computer, Computer system or Computer network
(b) Downloading, copying or extraction of data
(c) Introduction of a Computer Contaminant or Virus
(d) Causing damage to any Computer, Computer System or Computer Network, data, programmes residing in a computer
(e) Causing disruption of Computer, Computer System or Computer Network
(f) Causing Denial of Access
(g) Assisting another person to facilitate access to a computer in contravention of the provisions of the Act, rules or regulations made there under.
(h) causing the services availed by a person to the account of another person
The word "Unauthorized" used above may be taken to mean " Without the permission of the owner or any other person who is in charge of a computer, computer system or computer network.
The compensation under Section 43 can be for a maximum of Rs 1 crore.
Section 44 refers to penalty for failure to furnish returns or documents or maintain proper account books by the Certifying Authorities (CA). It does not apply to the public except to the extent of information that a Digital Certificate holder may be called upon to furnish by a CA.
Section 45 is a general provision which can be applied to any contravention of the rules or regulations made under the Act for which no specific penalty has been prescribed. Penalties under this section are subject to a maximum of Rs 25,000/-
2. To whom shall the complaint be made?
The Complaint shall be made to
The Adjudicating Officer under ITA-2000,
XYZ State/Union Territory, Secretary,
Department of Information Technology,
Government of XYZ State/Union Territory
XYZ CityThe choice of the State or Union territory is subject to the location of any of the Computers involved in the offence being located in the particular State or Union Territory.
3. What is the format of the application?
Application may be made in plain paper on a proforma available here.
4. What is the fee to be paid? and How?
Rs 50 per application + 10 % of the damages claimed, to be enclosed to the application in the form of a Bank Draft payable at the respective city.
5. What are the consequences of a "Frivolous Complaint"?
AO can order making good of the cost of the persons against whom a frivolous complaint has been made and also a damage not exceeding Rs 25000/ as well as impose a fine not exceeding RS 10000/-
6.What are the evidences to be presented while filing a complaint?
Evidence in the form of documents either in electronic form or otherwise indicating the commission of a contravention, the time and place of its occurrence and prima-facie indicating the respondent's involvement.
Though not specified, it is presumed that witnesses can be produced during the enquiry. It is also presumed that the evidence produced should generally satisfy the standards acceptable under the Indian Evidence Act though the AO can adopt his own procedures in this regard.
he AO can call for an investigation if required from the local DSP or CERT-IND or an officer of the Controller of Certifying Authorities and collect evidences of his own.
7. How long does the Adjudication process may take?
As far as possible, the AO is expected to hear and decide the case within 4 months and complete the whole matter in 6 months.
8. What kind of compensation can one expect?
While adjudging the claim, the AO will take into account the amount of unfair advantage wherever quantifiable enjoyed as a result of default, the amount of loss caused to any person as a result of the default, and the repetitive nature of the default, subject to the limits prescribed in the Act.
9. What if the order is not satisfactory?
An appeal can be preferred to the CRAT (Cyber Regulations Appellate Tribunal) along with the copy of the order.
10.Is it necessary to physically be present for enquiry?
The AO is likely to make available infrastructure for promoting on-line settlement of enquiry or disputes or for taking evidence.
Subject to this provision, at present it may be considered that the AO may at his discretion insist on the personal presence of the complainant and/or the respondent in the notice that would be served for the purpose.
11. What if the complainant does not know the suspect?
The procedure in respect of unidentified defaulter is not yet clear. It is presumed that the complainant would provide as much of an identity as feasible at the time of enquiry and the AO would order investigation if he deems it fit.
In practice however, if the stakes are high, the complainant should conduct his own investigation and produce as much of evidence as possible to identify the respondent and the act of default.
12. Can a complainant be represented by a consultant during the enquiry?
While the procedure is not clear in this regard, it is presumed that a representation would be allowed on request.
P.S: The FAQ list will be expanded and corrected if required as more information becomes available. I request the readers to contribute with what ever information is at their disposal in this regard.
Send Your Views if any to Naavi
For Structured Online Courses in Cyber laws, Visit Cyber Law College.com
.