CHAPTER IX : PENALTIES AND ADJUDICATION

43. Penalty  Compensation for damage to computer, computer system etc. 14C

 

(1) If any person, without permission of the owner or of any other person who is incharge of a computer resource computer, computer or computer network,-

(a) accesses or secures access to such  computer resource; computer, computer system or computer network;
 
(b) downloads, copies or extracts any data, computer data base or information from such computer resource, computer system or computer network including information or data held or stored in any removable storage medium;

(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer resource, computer system or computer network;

(d) damages or causes to be damaged any computer resource, computer system or computer network, data, computer data base or other programmes residing in such computer resource, computer system or computer network;

(e) disrupts or causes disruption or impairment of any computer resource; computer system or computer network;

(f) denies or causes the denial of access to any person authorised to access any computer resource, computer system or computer network by any means ; 

(g) provides any assistance to any person to facilitate access to a computer resource, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder ;

(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer resource, computer system, or computer network, 

he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.

43-2(2) If any body corporate, that owns or handles sensitive personal data or information in a computer resource that it owns or operates, is found to have been negligent in implementing and maintaining reasonable security practices and procedures, it shall be liable to pay damages by way of compensation not exceeding Rs. 1 crore to the person so affected.

Explanation.- For the purposes of this section,-

 

(oi) “body corporate” means any company and includes a firm or other association of individuals engaged in commercial or professional activities.

 
(i) "computer contaminant" means any set of computer instructions that [3]are designed-

(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or

(b) by any means to usurp the normal operation of the computer, computer system, or computer network;

(ii) "computer data base" means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network;

(iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed some other event takes place in that computer resource;
(iv) "damage " means to destroy, alter, delete, add, modify or rearrange any computer resource by any means.

(v) “Reasonable security practices and procedures” means, in the absence of a contract between the parties or any special law for this purpose, such security practices and procedures as appropriate to the nature of the information to protect that information from unauthorized access, damage, use, modification, disclosure or impairment, as may be prescribed by the Central Government in consultation with the self-regulatory bodies of the industry, if any.

(vi) “Sensitive personal data or information” means such personal information, which is prescribed as “sensitive” by the Central Government in consultation with the self-regulatory bodies of the industry, if any.

(vii) “Without the permission of the owner” shall include access to information that exceeds the level of authorized permission to access.

44. Penalty for failure to furnish information, return, etc.

 

If any person who is required under this Act or any rules or regulations made thereunder to-

(a) furnish any document, return or report to the Controller or the Certifying Authority fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty thousand rupees for each such failure;

(b) file any return or furnish any information, books or other documents within the time specified therefore in the regulations fails to file return or furnish the same within the time specified therefore in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day during which such failure continues;

(c) maintain books of account or records, fails to maintain the same, he shall be liable to a penalty not exceeding ten thousand rupees for every day during which the failure continues.

 

45. Residuary penalty

 

Whoever contravenes any rules or regulations made under this Act, for the contravention of which no penalty has been separately provided, shall be liable to pay a compensation not exceeding twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty-five thousand rupees.

46. Power to adjudicate regarding compensation and penalty

 

46-1(1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder which renders him liable to pay penalty or compensation, the Central Government shall, subject to the provisions of sub-section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer for holding an inquiry in the manner prescribed by the Central Government.

(2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section.

(3) No person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial experience as may be prescribed by the Central Government.

(4) Where more than one adjudicating officers are appointed, the Central Government shall specify by order the matters and places with respect to which such officers shall exercise their jurisdiction.

(5) Every adjudicating officer shall have the powers of a civil court which are conferred on the Cyber Appellate Tribunal under sub-section (2) of section 58, and-

(a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code;

(b) shall be deemed to be a civil court for the purposes of section 345 and 346 of the Code of Criminal Procedure, 1973.

47. Factors to be taken into account by the adjudicating officer

 

While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall have due regard to the following factors, namely :-

(a) the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default; 

(b) the amount of loss caused to any person as a result of the default;

(c) the repetitive nature of the default.