Let's Build a Responsible Cyber Society


 

Who is Important?...The Common Man/Woman?...or the Intermediary?

 

In a typical Cyber Crime which keeps happening in India with some regularity, a Chandigarh based girls has found her face being morphed on to a nude picture and circulated amongst her relatives and friends. It is said that the investigations have hit a dead end at a Cyber Cafe which has not maintained any details of the user. Another case of harassment has been reported from Kolkata where the Police has tracked down the culprit and are in the process of prosecuting him. This case is similar to the Suhas Katti Case in which Chennai police were successful in getting conviction in record time.

This kind of Cyber Crimes have become a common form of harassing women normally by estranged lovers or family members. Under commercial considerations, most of the celebrities in India are also subjected to such humiliation. While the celebrities from the film world may have the capability to withstand such ignominy, the common women from respectable families may not be so resilient. It would not be surprising if some marriages are broken and some women commit suicides following such incidents.

In the present context when a review of the ITA-2000 is in progress, it is necessary to put on test the recommendations made by the Expert Committee on how their suggestions would affect the interests of the  common people  such as those involved in the above case.

The most important aspect of investigation of the above case is the identification of the offender. This requires the IP address usage details from the ISP and then the actual user details by the Cyber Cafe. Without their active cooperation, the investigation cannot even take off.

Under the present laws, the intermediaries would have a vicarious liability except when they prove "due diligence". Due Diligence can be implied when they have taken reasonable measures to prevent happening of Cyber Crimes and reasonable measures to keep the evidences in tact in case of a Cyber Crime.

Over the last few years, the ISP s and Cyber Cafe owners had been realizing their responsibilities slowly and had started cooperating with the Police. While specific regulations were in place in Karnataka and Maharashtra for maintenance of "Visitor's Registers", even in other places, responsible Cyber Cafe owners had started maintaining registers, displaying notices and generally discouraging use of Cyber Cafe facilities for anything that could harm others. Once these regulations specified that the visitor's registers are to be maintained for a specific period of time, non maintenance of such registers came under the provisions of Section 65 which could impose an imprisonment of 3 years for the Cyber Cafe owner for failing to maintain the records. It was understood that the Cyber cafe owner was not expected to be a Policeman and make a background check on the visitor or check for the veracity of the data entered by the visitor in the register. But he could still capture the handwriting and signature of the users which itself could be of use some time later in the investigations.

In the present recommendations, it has been stated that all intermediaries including the Cyber Cafes would not be liable unless conspiracy or abettment is proved against them. Hence the Police are unlikely to get any help from the Cyber Cafe to probe the case further.

Further the "morphing" activity could be covered in the present Section 66 while the amended section may not be able to cover it.

Under the present disposition the victim could approach the Police and they can arrest a suspect who is likely to be related or known to the victim and have a motive to defame her. But in the proposed amended act the complaint has to be made to the Magistrate's court and the Police cannot secure the arrest without a court order.

It is therefore clear that the proposed amendments would work against the victim in this case.

Even in the Kolkata case (See the details in the link below) the present laws can invoke Section 66 and the website owner who has hosted the information will have a vicarious liability which may force him to part with the IP address details on posting of messsages or uploading of files. In the amended act it would be impossible for the Police to get any information from the website owner and hence the case could not have progressed as much as it has now.

At a time when such Cyber Crimes require a tightening of Cyber Laws, the proposed softening of the laws as suggested by the Expert Committee provides a glaring contrast.

The option before the Government is to decide if it is the interest of the Common man/woman which is important or the interest of the intermediaries? .

Will any member of the Expert Committee or the MCIT let us know how the proposed amendments would fare compared to the present act with specific reference to Section 66,67,72,79 and 80.

Naavi

September 9, 2005

Related Article:

 ...Report in Chandigarh news line

Another Case from Kolkata..Reported in ET

Copy of the Amendments