Let's Build a Responsible Cyber Society

     
 
This is the draft of E-Commerce Laws drafted in India following UNCITRAL Model Law
recommended by UNO.
This was over ridden by the Information Technology Bill 1999 in December 1999
 
     
 

Draft of Electronic Commerce Act, 1998

 

An Act to establish the law relating to electronic commerce.

WHEREAS it is expedient to establish the law relating to electronic commerce;

PART I - PRELIMINARY

1.       Short Title, Extent and Commencement.

2.       Definitions

3.       Purpose and Construction.

4.       Application. 

5.       Variation by Agreement.

PART II - ELECTRONIC RECORDS AND SIGNATURES GENERALLY 

6.       Legal Recognition

7.       Requirements of Writing.

8.       Electronic Signatures.

9.       Original Record.

10.    Admissibility and Evidentiary Weight of Electronic Records and Electronic Signatures.

11.    Retention of Electronic Records.

PART III -- SECURE ELECTRONIC RECORDS AND SIGNATURES 

12.    Secure Electronic Record.

13.    Secure Electronic Signature

14.    Presumptions Relating to Secure Electronic Records and Signatures

PART IV -- ELECTRONIC CONTRACTS

15.    Formation and Validity.

16.    Effectiveness Between Parties

17.    Attribution

18.    Acknowledgment of Receipt.

19.    Time and Place of Dispatch and Receipt

20.    Applicable Law

PART V -- EFFECT OF DIGITAL SIGNATURES

21.    Secure Electronic Record with Digital Signature.

22.    Digital Signature as a Secure Electronic Signature.

23.    Unreliable Digital Signatures

PART VI -- GENERAL DUTIES RELATING TO DIGITAL SIGNATURES

24.    Foreseeability of Reliance on Certificates.

25.    Prerequisites to Disclosure of Certificate

26.    Publication for Fraudulent Purpose

27.    False or Unauthorized Request.

PART VII - DUTIES OF CERTIFICATION AUTHORITIES

28.    Trustworthy System

29.    Disclosure by Certification Authorities.

30.    Issuing of Certificate.

31.    Representations Upon Issuance of Certificate.

32.    Fiduciary Relationship

33.    Financial Responsibility

34.    Suspension of Certificate.

35.    Revocation of Certificate

PART VIII -- DUTIES OF SUBSCRIBERS

36.    Generating A Key Pair.

37.    Acceptance of Certificate.

38.    Control of Private Key.

39.    Initiating Suspension or Revocation.

PART IX -- REGULATION OF CERTIFICATION AUTHORITIES AND REPOSITORIES

40.    Appointment of Controller and Other Officers

41.    Recognition of Foreign Certification Authorities

42.    Recommended Reliance Limit

43.    Liability Limits for Certification Authorities

44.    Recognition of Repositories.

45.    Liability of Repositories.

PART X - GOVERNMENT USE OF ELECTRONIC RECORDS AND SIGNATURES

46.    Acceptance of Electronic Filing and Issue of Documents.

PART XI -- LIABILITY OF NETWORK SERVICE PROVIDERS

47.    Liability of Network Service Providers

PART XII - COMPUTER CRIME

48.    Computer Crime

49.    Penalities

50.    Forfeiture

PART XIII -- GENERAL

51.    Confidentiality.

52.    Offense by Body Corporate

53.    Controller May Give Directions for Compliance.

54.    Power to Investigate

55.    Access to Computers and Data.

56.    General Penalty

57.    Power to Exempt

58.    Power of Central Government to make rules.

59.    Power to remove difficulties.

THE ELECTRONIC COMMERCE SUPPORT ACT, 1998


Amendments to the Indian Evidence Act, 1872
Amendments to the Indian Contract Act, 1872.
Amendment to the Indian Telegraph Act, 1885
Amendments to the Banker's Books Evidence Act of 1891
Amendments to the General Clauses Act, 1897
Amendments to the Reserve Bank of India Act, 1934,

It is hereby enacted as follows:-- PART I - PRELIMINARY

1. Short Title, Extent and Commencement.

    
(1) This Act may be called the Electronic Commerce Act, 1998.
    (2) This Act extends to the whole of India, except the State of Jammu and Kashmir.
    (3) This Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf.


2. Definitions. In this Act, unless the context otherwise requires -

(a) "Asymmetric cryptosystem" means a computer-based system capable of generating and using a secure key pair, consisting of a private key for creating a digital signature and a public key to verify the digital signature. Comments: Asymmetric cryptography is the core of the current digital signature technology. An asymmetric cryptosystem is an information system utilizing an algorithm or series of algorithms that provide for a cryptographic key pair consisting of a private key and the corresponding public key. A secure key pair is a key pair that is cryptographically strong and is capable of reliably creating and verifying digital signatures.

(b) "Authentication" means a process used to ascertain the identity of a person or the integrity of specific information. For a message, authentication involves ascertaining its source and confirming that it has not been modified or replaced in transit.

(c) "Authorized officer" means any officer that has been authorized by the Controller to exercise the powers of the Controller under this Act as identified in Section 41 of this Act.

Comments: An Authorized Officer will have the authority, if delegated by the Controller (as defined herein), to perform the duties and obligations of the Controller as specified herein.

(d) "Certificate" means a record, that at a minimum: (i) identifies the certification authority issuing it; (ii) names or otherwise identifies its subscriber, or a device or electronic agent under the control of the subscriber; (iii) contains a public key that corresponds to a private key under the control of the subscriber; (iv) specifies its operational period; and (v) is digitally signed by the certification authority issuing it.

(e) "Certification authority" means a person who authorizes or causes the issuance of a certificate.

(f) "Certification practice statement" means a statement issued by a certification authority that specifies the policies or practices that the certification authority employs in issuing, managing, suspending and revoking certificates and providing access to them.

(g) "Computer" means an electronic, magnetic, electromagnetic, digital, optical, or other information processing system or device used for creating, generating, transmitting, receiving, storing, displaying, or otherwise processing information, together with any supporting software, input, output, or data storage devices used therewith. .

(h) "Computer network" means two or more computers in communication with or connected to each other.

(i) "Computer program" means a set of instructions or statements, and related data, to be used directly or indirectly in a computer or computer network in order to cause a certain result.

(j) "Computer security system" means the design, procedures or other measures that the person responsible for the operation and use of a computer employs to restrict the use of the computer to particular persons or uses, or that the owner or licensee of data stored or maintained by a computer in which the owner or licensee is entitled to store or maintain the data employs to restrict access to or protect the confidentiality of the data.

(k) "Computer virus" means any computer instruction, information, data or program that degrades the performance of a computer; disables, damages or destroys a computer; or attaches itself to another computer and executes when the host computer program, data or instruction is executed or when some other event takes place in the host computer, data or instruction.

(l) "Controller" means the Controller of Certification Authorities appointed under Section 41. Source: Singapore Electronic Transactions Act 2.

(m) "Correspond" in relation to private or public keys, means to belong to the same key pair.

(n) "Damage" means any destruction, alteration, disruption, deletion, addition, modification or other impairment to the integrity or availability of a computer, data, electronic record, a program, an information system or information.

Comment: The definition of "damage" is based on the definition contained in the United States Computer Fraud and Abuse Act, but includes a wider range of categories of impairment of computer resources.

(o) "Data" means a representation of information or of concepts that are being prepared or have been prepared in a form suitable for use in a computer. Source: Malaysia Computer Crimes Act 2.

(p) "Digital signature" means an electronic signature consisting of a transformation of an electronic record using an asymmetric cryptosystem and a hash function such that a person having the initial untransformed electronic record and the signer's public key can accurately determine: (i) whether the transformation was created using the private key that corresponds to the signer's public key and (ii) whether the initial electronic record has been altered since the transformation was made. .

(q) "Electronic" includes electrical, digital, magnetic, optical, electromagnetic or any other form of technology that entails capabilities similar to these technologies.

(r) "Electronic device" means a computer program or electronic record or other automated means configured or enabled by a person to independently initiate or respond to electronic records or performances on behalf of that person without review by an individual.

(s) "Electronic record" means a record generated, sent, received or stored by electronic means for use in an information system or for transmission from one information system to another.

(t) "Electronic signature" means any letters, characters, numbers or other symbols in digital form attached to or logically associated with an electronic record, and executed or adopted with the intention of authenticating or approving the electronic record.

(u) "Hash function" means an algorithm mapping or translating one sequence of bits into another, generally smaller, set (the hash result) such that: (i) a record yields the same hash result every time the algorithm is executed using the same record as input; (ii) it is not feasible that a record can be derived or reconstituted from the hash result produced by the algorithm; and (iii) it is computationally infeasible that two records can be found that produce the same hash result using the algorithm.

(v) "Information" includes data, text, images, sound, codes, computer programs, software, databases and the like.

(w) "Information system" means a system for creating, generating, sending, receiving, storing, displaying or otherwise processing information.

(x)"Internet" means a global network of interconnected computer networks, each using the transmission control protocol/internet protocol or any combination thereof or such other standard network interconnection protocols as is used to transmit data that is directly or indirectly delivered to a computer.

(y) "Key pair" in an asymmetric cryptosystem, means a private key and its mathematically related public key, having the property that the public key can verify a digital signature that the private key creates.

(z) "Network service provider" means a person that provides the software, hardware, telecommunications facilities or any combination of the above, to facilitate access to the Internet or any other computer network, and includes a value added network service provider.

(aa) "Operational period of a certificate" begins on the date and time the certificate is issued by a certification authority (or on a later date and time if stated in the certificate), and ends on the date and time it expires as stated in the certificate or is earlier revoked or suspended.

(bb) "Private key" means the key of a key pair used to create a digital signature.

(cc)"Prescribed" means prescribed by rules made under this Act.

(dd) "Provide access" means, in relation to material provided by a third party, the provision of the necessary technical means by which such material may be accessed and includes the automatic and temporary storage of such material for the purpose of providing access.

(ee) "Public key" means the key of a key pair used to verify a digital signature.

(ff) "Record" means information that is inscribed, stored or otherwise fixed in a tangible medium or that is stored in an electronic or other intangible medium and may be retrieved in perceivable form.

(gg) "Repository" means a system for storing and retrieving certificates or other information relevant to certificates, including information related to the status of a certificate.

(hh) "Revoke a certificate" means to permanently end the operational period of a certificate from a specified time forward.

(ii) "Rule of law" includes any provision contained in an enactment or any rule derived from any other source of law.

(jj) "Security procedure" means a procedure for the purpose of: (i) verifying that an electronic record is that of a specific person or (ii) detecting error or alteration in the communication, content or storage of an electronic record since a specific point in time. A security procedure may require the use of algorithms or codes, identifying words or numbers, encryption, answer back or acknowledgment procedures, or similar security devices.

(kk) "Signed" or "signature," in relation to electronic records, includes any symbol executed or adopted, or any security procedure employed or adopted, using electronic means or otherwise, by or on behalf of a person with the intent to authenticate such record.

(ll) "Subscriber" means a person who is the subject named or identified in a certificate issued, who holds a private key that corresponds to a public key listed in that certificate and who is the person to whom digitally signed messages verified by reference to such certificate are to be attributed.

(mm) "Suspend a certificate" means to temporarily suspend the operational period of a certificate from a specified time forward.

(nn) "Third party" means, in relation to a network service provider, a person over whom the provider has no effective control.

(oo) "Trustworthy system or manner" means the use of, or adoption of any device involving the use of, computer hardware, software and procedures that, in the context in which they are used: (i) can be shown to be reasonably resistant to penetration, compromise and misuse; (ii) provide a reasonable level of reliability and correct operation; (iii) are reasonably suited to performing their intended functions or serving their intended purposes; (iv) comply with applicable agreements between the parties, if any; and (v) adhere to generally accepted security procedures

(pp) "Valid certificate" means a certificate that a certification authority has issued and that the subscriber listed in the certificate has accepted.

(qq) "Verify a digital signature" means to use a public key listed in a valid certificate to determine: (i) that the digital signature was created using the private key corresponding to the public key listed in the certificate and (ii) the electronic record has not been altered since its digital signature was created.

3. Purpose and Construction.

This Act shall be construed consistently with what is commercially reasonable under the circumstances and to effectuate the following purposes:

(a) To facilitate electronic communications by means of reliable electronic records;

(b) To facilitate and promote electronic commerce, to eliminate barriers to electronic commerce resulting from uncertainties over writing and signature requirements, and to promote the development of the legal and business infrastructure necessary to implement secure electronic commerce;

(c) To facilitate the electronic filing of documents with government agencies and statutory corporations, and to promote efficient delivery of government services by means of electronic records;

(d) To minimize the incidence of forged electronic records, intentional and unintentional alterations of records, and fraud in electronic commerce and other electronic transactions;

(e) To promote public confidence in the integrity and reliability of electronic records, electronic signatures and electronic commerce;

(f) To establish uniform rules and standards regarding the authentication and integrity of electronic records; and (g) To create a legal infrastructure for the use of digital signatures.

4. Application.

(a) Parts II or IV of this Act shall not apply to any law requiring writing or signatures in any of the following circumstances:
(1) the creation or execution of a will;
(2) the execution of negotiable instruments;
(3) the creation, performance or enforcement of an indenture, declaration of trust or power of attorney with the exception of constructive and resulting trusts;
(4) any contract for the sale or other disposition of immovable property, or any interest in such property;
(5) the conveyance of immovable property or the transfer of any interest in immovable property;
(6) documents of title for movable or immovable property; or
(7) where such application would involve a construction of a rule of law that is clearly inconsistent with the manifest intent of the lawmaking body or repugnant to the context of the same rule of law, provided that the mere requirement that information be "in writing," "written" or "printed" shall not by itself be sufficient to establish such intent.

(b) The Central Government may modify in the public interest, by notification published in the Official Gazette, the provisions of section (a) by adding, deleting or amending any class of transactions or matters specified in that section.

(c) In relation to this Act, electronic records shall not be liable to stamp duty under the Stamp Act, 1899.

(d) Notwithstanding anything contained in the Telegraph Act, 1885, or rules made under this Act, it shall be lawful to transmit and receive records electronically.

5. Variation by Agreement. As between parties involved in generating, sending, receiving, storing or otherwise processing electronic records, any provision of Part II or IV of this Act may be varied by agreement of the parties.

PART II - ELECTRONIC RECORDS AND SIGNATURES GENERALLY

6. Legal Recognition. Except as provided in Section 4 of this Act, records and signatures shall not be denied legal effect, validity or enforceability solely on the ground that they are in electronic form.

7. Requirements of Writing. Except as provided in Section 4, where any rule of law requires any matter to be in writing, that requirement sufficiently is met by an electronic record if the matter contained therein is accessible so as to be usable for subsequent reference.

8. Electronic Signatures. Except as provided in Section 4, where any rule of law requires that a record bear a signature, or provides for certain consequences if a record is not signed, an electronic signature satisfies that rule of law if:
(a) a method is used to identify the originator and to indicate the originator's approval of the information contained in the electronic record; and
(b) that method is as reliable as was appropriate for the purpose for which the electronic record was generated or communicated, in light of all of the circumstances, including any relevant agreements among the parties involved.

9. Original Record. (a) Where a rule of law requires a record to be presented or retained in its original form, that requirement is met by an electronic record if:

(i) there exists reliable assurance as to the integrity of the record from the time when it was first generated in its final form, as an electronic record or otherwise; and
(ii) where it is required that a record be presented, that record is capable of being displayed to the person to whom it is being presented.
(b) Subsection (a) applies whether the requirement referred to therein is in the form of an obligation or whether the law simply provides consequences for the record not being presented or retained in its original form.
(c) For the purposes of subsection (a)(i):

(i) the criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change which arises in the normal course of communication, storage and display; and
(ii) the standard of reliability required shall be assessed in light of the purpose for which the information was generated and in light of all the relevant circumstances.

10. Admissibility and Evidentiary Weight of Electronic Records and Electronic Signatures.

(a) Nothing in the Indian Evidence Act, 1872 or any rules made under this Act shall apply in any legal proceedings so as to deny the admissibility of an electronic record or an electronic signature into evidence:
(i) on the sole ground that it is an electronic record or an electronic signature; or
(ii) on the grounds that it is not in its original form or is not an original.

(b) Information in the form of an electronic record shall be given due evidentiary weight without regard to the fact that it is an electronic record. In assessing the evidentiary weight of an electronic record or an electronic signature, regard shall be given to:

(i) the reliability of the manner in which it was generated, stored or communicated;
(ii) the reliability of the manner in which its integrity was maintained;
(iii) the manner in which its originator was identified or the electronic record was signed; and
(iv) any other factor that may be relevant.

(c) Nothing in this section shall be construed to affect the provisions of Section 4 of this Act.

11. Retention of Electronic Records.

(a) Where any law for the time being in force requires that certain documents, records or information be retained, whether permanently or for a specified period, that requirement is satisfied by retaining them in the form of electronic records if the following conditions are fulfilled:

(i) the electronic record and the information contained therein remains accessible so as to be usable for subsequent reference;
(ii) the electronic record is retained in the format in which it was originally generated, sent or received, or in a format which can be demonstrated to represent accurately the information originally generated, sent or received; and
(iii) such information as enables the identification of the origin and destination of an electronic record and the date and time when it was sent or received, if any, is retained.

(b) An obligation to retain documents, records or information in accordance with subsection (a) shall not extend to any data the sole purpose of which is to enable the record to be sent or received.

(c) It shall be lawful for a person to satisfy the retention requirement referred to in Section 11(a) by using the services of any other person, if the conditions in Sections 11(a)(i) through (iii) are complied with. (d) Nothing in this section shall preclude any department or ministry of the Central Government, State Government or a statutory corporation under Central or State Government from specifying additional requirements for the retention of electronic records that are subject to its jurisdiction.

PART III -- SECURE ELECTRONIC RECORDS AND SIGNATURES

12. Secure Electronic Record.

(a) If a prescribed security procedure or a commercially reasonable security procedure agreed to by the parties involved has been applied to an electronic record in a trustworthy manner and has been relied upon reasonably and in good faith by the relying party to verify that the electronic record has not been altered since a specified point in time, such record shall be treated as a secure electronic record from such specified point in time to the time of verification.

(b) For the purposes of this Section 12 and of Section 13, whether a security procedure is commercially reasonable shall be determined in light of the procedure used and the commercial circumstances prevailing at the time the procedure was used, including:

(i) the nature of the transaction;
(ii) the sophistication of the parties;
(iii) the volume of similar transactions engaged in by the parties involved;
(iv) the availability of alternatives offered to but rejected by any party;
(v) the cost of alternative procedures; and
(vi) the procedures in general use for similar types of transactions.
(c) Whether reliance on a security procedure was reasonable and in good faith shall be determined in light of all the circumstances known to the relying party at the time of the reliance, with regard to:

(i) the information that the relying party knew or should have known of at the time of reliance that would suggest that reliance was or was not reasonable;
(ii) the value or importance of the electronic record, if known: (iii) any course of dealing between the relying party and the purported sender and the available indicia of reliability or unreliability apart from the security procedure;
(iv) any usage of trade, particularly trade conducted by trustworthy systems or other computer-based means; and
(v) whether the verification was performed with the assistance of an independent third party.

13. Secure Electronic Signature. If, through the application of a prescribed security procedure or a commercially reasonable security procedure agreed to by the parties involved, an electronic signature is executed in a trustworthy manner and reasonably and in good faith is relied upon by the relying party, such signature shall be treated as a secure electronic signature at the time of verification to the extent that it can be verified that said electronic signature satisfied, at the time it was made, the following criteria:

(a) it was unique to the person using it;
(b) it was capable of being used to objectively identify such person;
(c) it was created in a manner or using a means under the sole control of the person using it, that cannot be readily duplicated or compromised; and

(d) it is linked to the electronic record to which it relates in a manner such that if the record was changed to electronic signature would be invalidated.

14. Presumptions Relating to Secure Electronic Records and Signatures.
(a) In any civil proceedings involving a secure electronic record, it shall be presumed, unless the contrary is proved, that the secure electronic record has not been altered since the specific point in time to which the secure status relates.
(b) In any civil proceedings involving a secure electronic signature, the following shall be presumed unless the contrary is proved:
(i) the secure electronic signature is the signature of the person to whom it correlates: and
(ii) the secure electronic signature was affixed by that person with the intention of signing or approving the electronic record.

(c) In the absence of a secure electronic record or a secure electronic signature, nothing in this Part shall create any presumption relating to the authenticity and integrity of the electronic record or an electronic signature.

(d) The effect of presumptions provided in this section is to place on the party challenging the integrity of a secure electronic record or challenging the genuineness of a secure electronic signature both the burden of going forward with evidence to rebut the presumption and the burden of persuading the trier of fact that the nonexistence of the presumed fact is more probable than its existence.

(e) For the purposes of this section:
(i) "secure electronic record" means an electronic record treated as a secure electronic record by virtue of Sections 12 or 21; and
(ii) "secure electronic signature" means an electronic signature treated as a secure electronic signature by virtue of Sections 13 or 22.

PART IV -- ELECTRONIC CONTRACTS

15. Formation and Validity.
(a) In the context of the formation of contracts, unless otherwise agreed by the parties involved, an offer and the acceptance of an offer may be expressed by means of electronic records.

(b) Where an electronic record is used in the formation of a contract, that contract shall not be denied validity or enforceability on the sole ground that an electronic record was used for that purpose.

(c) A contract may be formed by the interaction of electronic agents. A contract is formed if the interaction results in the electronic agents' engaging in operations that confirm or indicate the existence of a contract.

(d) A contract may be formed by the interaction of an electronic agent and an individual. A contract is formed if the individual has reason to know that the individual is dealing with an electronic agent and the individual takes actions or makes a statement that the individual has reason to know will cause the electronic agent to perform the subject of the contract, or instruct a person or electronic agent to do so.

16. Effectiveness Between Parties. As between the originator and the addressee of an electronic record, a declaration of intent or other statement shall not be denied legal effect, validity or enforceability solely on the ground that it is in the form of an electronic record.

17. Attribution.

(a) An electronic record is that of the originator if it was sent by the originator himself.

(b) As between the originator and the addressee, an electronic record is deemed to be that of the originator if it was sent:
(i) by a person who had the authority (pursuant to a document in a non-electronic form) to act on behalf of the originator in respect of that electronic record; or
(ii) by an information system programmed by or on behalf of the originator to operate automatically.

(c) As between the originator and the addressee, an addressee is entitled to regard an electronic record as being that of the originator and to act on that assumption if:
(i) in order to ascertain whether the electronic record was that of the originator, the addressee properly and in good faith applied a procedure previously agreed to by the originator for that purpose; or
(ii) the data message as received by the addressee resulted from the actions of a person whose relationship with the originator or with any agent of the originator enabled that person to gain access to a method used by the originator to identify electronic records as its own.

(d) Section 17(c) shall not apply:
(i) from the time when the addressee has both received notice from the originator that the electronic record is not that of the originator, and had reasonable time to act accordingly;
(ii) at any time when the addressee knew or should have known, had it exercised reasonable care or used any agreed procedure, that the electronic record was not that of the originator; or
(iii) if in all the circumstances of the case, it is unconscionable for the addressee to regard the electronic record as that of the originator or to act on that assumption.
(e) Where an electronic record is that of the originator or is deemed to be that of the originator, or the addressee is entitled to act on that assumption, then, as between the originator and the addressee, the addressee is entitled to regard the electronic record received as being what the originator intended to send, and to act on that assumption. The addressee is not so entitled when the addressee knew or should have known, had the addressee exercised reasonable care or used any agreed procedure, that the transmission resulted in any error in the electronic record as received.
(f) The addressee is entitled to regard each electronic record received as a separate electronic record and to act on that assumption, except to the extent that the addressee duplicates the electronic record or the addressee knew or should have known, had the addressee exercised reasonable care or used any agreed procedure, that an electronic record received from the originator was a duplicate.
(g) Nothing in this section shall affect the law of agency or the law on the formation of contracts.

18. Acknowledgment of Receipt. (a) Sections 18(b), (c) and (d) shall apply where, on or before sending an electronic record, or by means of that electronic record, the originator has requested or has agreed with the addressee that receipt of the electronic record be acknowledged.

(b) Where the originator has not agreed with the addressee that the acknowledgment be given in a particular form or by a particular method, an acknowledgment may be given by:
(i) any communication by the addressee, automated or otherwise; or
(ii) any conduct of the addressee, sufficient to indicate to the originator that the electronic record has been received.
(c) Where the originator has stated that the electronic record is conditional on receipt of the acknowledgment, the electronic record is treated as though it had never been sent until the acknowledgment is received.
(d) Where the originator has not stated that the electronic record is conditional on receipt of the acknowledgment, and the acknowledgment has not been received by the originator within the time specified or agreed, or if no time has been specified or agreed within a reasonable time, the originator:
(i) may give notice to the addressee stating that no acknowledgment has been received and specifying a reasonable time by which the acknowledgment must be received; and
(ii) if the acknowledgment is not received within the time specified in Section 18(a), may, upon notice to the addressee, treat the electronic record as though it has never been sent, or exercise any other rights it may have.

(e) Where the originator receives the addressee's acknowledgment of receipt, it is presumed, unless evidence to the contrary is adduced, that the related electronic record was received by the addressee, but that presumption does not imply that the content of the electronic record corresponds to the content of the record received.

(f) Where the received acknowledgment states that the related electronic record met technical requirements, either agreed upon or set forth in applicable standards, it is presumed, unless evidence to the contrary is adduced, that those requirements have been met.

(g) Except as it relates to the sending or receipt of the electronic record, this section is not intended to address the legal consequences that may flow either from that electronic record or from the acknowledgment of its receipt.

19. Time and Place of Dispatch and Receipt

(a) Unless otherwise agreed to between the originator and the addressee, the dispatch of an electronic record occurs when it enters an information system outside the control of the originator or the person who sent the electronic record on behalf of the originator.

(b) Unless otherwise agreed between the originator and the addressee, the time of receipt of an electronic record is determined as follows:

(i) if the addressee has designated an information system for the purpose of receiving electronic records, receipt occurs:
(A) at the time when the electronic record enters the designated information system; or
(B) if the electronic record is sent to an information system of the addressee that is not the designated information system, at the time when the electronic record is retrieved by the addressee.
(ii) if the addressee has not designated an information system, receipt occurs when the electronic record enters an information system of the addressee.

(c) Section 19(b) shall apply notwithstanding that the place where the information system is located may be different from the place where the electronic record is deemed to be received under Section 19(d).

(d) Unless otherwise agreed between the originator and the addressee, an electronic record is deemed to be dispatched at the place where the originator has its place of business, and is deemed to be received at the place where the addressee has its place of business.

(e) For the purposes of this section:
(i) if the originator or the addressee has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction or, where there is no underlying transaction, the principal place of business;
(ii) if the originator or the addressee does not have a place of business, reference is to be made to the usual place of residence; and
(iii) "usual place of residence" in relation to a body corporate, means the place where it is incorporated or otherwise legally constituted.
(f)This section shall not apply to such circumstances as may be prescribed.

20 .Applicable Law. Where a contract to which this Act applies is a transnational contract, and a dispute arises out of or in connection with, such contract, the following provisions shall apply:

(a) The dispute shall be decided in accordance with the rule of law designated by the parties as applicable to the substance of the dispute;
(b) Any designation by the parties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to substantive law of that country and not to its conflict of laws rules;
(c) Failing any such designation of the law under subsection (a) by the parties the court or arbitral tribunal shall apply the rules of law which it considers to be appropriate given all the circumstances surrounding the dispute;
(d) In all cases the court of tribunal shall decide in accordance with the terms of the contract and shall take into account the usage of the trade applicable to the transaction;

Explanation: In this section "transnational contract" means a contract in which at least one of the parties is (i) an individual who is a national of or habitually resident in any country other than India; (ii) a body corporate which is incorporated in any country other than India; (iii) a company or an association or a body of individuals whose central management and control is situated in any country other than India; or (iv) the Government of a foreign country.

PART V -- EFFECT OF DIGITAL SIGNATURES

21. Secure Electronic Record with Digital Signature. The portion of an electronic record that is signed with a digital signature shall be treated as a secure electronic record if the digital signature is a secure electronic signature by virtue of Section 13.

22. Digital Signature as a Secure Electronic Signature. When any portion of an electronic record is signed with a digital signature, the digital signature shall be treated as a secure electronic signature with respect to such portion of the record, if:

(a) the digital signature was created during the operational period of a valid certificate and is verified by reference to the public key listed in such certificate; and

(b) the certificate is considered trustworthy, in that it is an accurate binding of a public key to a person's identity because the following requirements have been fulfilled:

(i) the certificate was issued by a certification authority operating in compliance with the rules made under this Act;
(ii) the certificate was issued by a certification authority outside India recognized for this purpose by the Controller pursuant to rules made under this Act;
(iii) the certificate was issued by a department or ministry of the Central Government, State Government or a statutory corporation of Central or State Government approved by Central Government to act as a certification authority on such conditions as the Controller may by rules impose or specify; or
(iv) the parties have expressly agreed between themselves (originator and addressee) to use digital signatures as a security procedure, and the digital signature was properly verified by reference to the originator's public key.

23. Unreliable Digital Signatures. Unless otherwise provided by a rule of law or contract, a person relying on a digitally signed electronic record assumes the risk that the digital signature is invalid as a signature or authentication of the signed electronic record, if reliance on the digital signature is not reasonable under the circumstances having regard to the following factors:

(a) facts which the person relying on the digitally signed electronic record knows or has notice of, including all facts listed in the certificate or incorporated in it by reference;

(b) the value or importance of the digitally signed record, if known;

(c) the course of dealing between the person relying on the digitally signed electronic record and the subscriber and any available indicia of reliability or unreliability apart from the digital signature; and

(d) usage of trade, particularly trade conducted by trustworthy systems or other electronic means.

PART VI -- GENERAL DUTIES RELATING TO DIGITAL SIGNATURES

24. Foreseeability of Reliance on Certificates. It may be presumed that persons relying on a digital signature also will rely on a valid certificate containing the public key by which the digital signature can be verified.

25. Prerequisites to Disclosure of Certificate. A person shall not publish a certificate or otherwise make it available to anyone known by that person to be in a position to rely on the certificate or on a digital signature that is verifiable with reference to a public key listed in the certificate, if such person knows that:
(a) the certification authority listed in the certificate has not issued it;
(b) the subscriber listed in the certificate has not accepted it; or (c) the certificate has been revoked or suspended, unless such publication is for the purpose of verifying a digital signature created prior to such suspension or revocation.

26. Publication for Fraudulent Purpose. Any person who knowingly creates, publishes or otherwise makes available a certificate for any fraudulent or unlawful purpose shall be guilty of an offense and shall be liable on conviction to imprisonment for a term not exceeding 2 years or a fine not exceeding Rs.1,00,000 or both.

27. False or Unauthorized Request. Any person who knowingly misrepresents to a certification authority his identity or authorization for the purpose of requesting a certificate or for suspension or revocation of a certificate shall be guilty of an offense and shall be liable on conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding Rs. 50,000 or both.

PART VII - DUTIES OF CERTIFICATION AUTHORITIES

28. Trustworthy System. Except as otherwise conspicuously set forth in its certification practice statement, a certification authority and a person maintaining a repository must:
(a) maintain and utilize trustworthy systems and operate in a trustworthy manner in performing its services;
(b) possess the reliability necessary for offering certification services;
(c) employ personnel which possess the expert knowledge, experience and qualifications necessary for the offered services;
(d) record and retain records of all relevant information concerning a certificate for an appropriate period of time, in particular to be able to provide evidence of certification in the context of a dispute or lawsuit; and
(e) publish all relevant information concerning the proper and secure use of certification services and established procedures for complaints and dispute resolution and settlement.

29. Disclosure by Certification Authorities.

(a) A certification authority shall disclose the following:
(i) its certificate that contains the public key corresponding to the private key used by that certification authority to digitally sign another certificate (defined for purposes of this section as a certification authority certificate);
(ii) any relevant certification practice statement;
(iii) notice of any revocation or suspension of its certification authority certificate; and (iv) any other fact that materially and adversely affects either the reliability of a certificate that the authority has issued or the authority's ability to perform its services.

(b) In the event of an occurrence that materially and adversely affects a certification authority's trustworthy system or its certification authority certificate, the certification authority shall act in accordance with procedures governing such an occurrence specified in its certification practice statement or, in the absence of such procedures, use reasonable efforts to notify any person who is known to be or reasonably foreseeably will be affected by that occurrence.

30. Issuing of Certificate. A certification authority may issue a certificate to a prospective subscriber only after the certification authority has received a request for issuance from the prospective subscriber and
(a) if it has a certification practice statement, complied with all of the practices and procedures set forth in such certification practice statement including procedures regarding identification of the prospective subscriber; or

(b) in the absence of a certification practice statement addressing these issues, or if the parties involved have not entered into an agreement specifically providing otherwise, confirmed by itself or through an authorized agent that the following is the case:

(i) the prospective subscriber is the person to be listed in the certificate to be issued;
(ii) if the prospective subscriber is acting through one or more agents, the subscriber authorized the agent to have custody of the subscriber's private key and to request issuance of a certificate listing the corresponding public key;
(iii) the information in the certificate to be issued is accurate;
(iv) the prospective subscriber rightfully holds the private key corresponding to the public key to be listed in the certificate;
(v) the prospective subscriber holds a private key capable of creating a digital signature; and
(vi) the public key to be listed in the certificate can be used to verify a digital signature affixed by the private key held by the prospective subscriber.

31. Representations Upon Issuance of Certificate.

(a) By issuing a certificate, a certification authority represents, to any person who reasonably relies on the certificate or a digital signature verifiable by the public key listed in the certificate, that the certification authority has processed, approved and issued, and will manage and if necessary suspend or revoke the certificate, in accordance with any applicable certification practice statement incorporated by reference in the certificate, or of which the relying person has notice.

(b) In the absence of such a certification practice statement, the certification authority represents that it has confirmed the following:

(i) the certification authority has complied with all applicable requirements of this Act and other appropriate authority in issuing the certificate and, if the certification authority has published the certificate or otherwise made it available to such relying person, that the subscriber listed in the certificate has accepted it;
(ii) the subscriber identified in the certificate holds the private key corresponding to the public key listed in the certificate;
(iii) the certification authority has verified the identity of the subscriber to the extent stated in the certificate or its applicable certification practice statement or, in lieu thereof, that the certificate authority has reasonably verified the identity of the subscriber;
(iv) the subscriber's public key and private key constitute a functioning key pair;
(v) all information in the certificate is accurate, unless the certification authority has stated in the certificate or incorporated by reference in the certificate a statement that the accuracy of specified information is not confirmed; and
(vi) that the certification authority has no knowledge of any material fact which if it had been included in the certificate would adversely affect the reliability of the representations in this section.

(c) Where there is an applicable certification practice statement which has been incorporated by reference in the certificate, or of which the relying person otherwise has notice, subsection (b) shall apply to the extent that the representations are not inconsistent with the certification practice statement.

(d) Certification authorities shall keep and maintain as current a publicly accessible electronic register of certificates issued, indicating the time when any individual certificate expires or when it was suspended or revoked.

(e) Notwithstanding subsection (a) through (d), if a certification authority issued the certificate subject to the laws of another jurisdiction, the certification authority makes all warranties and representations, if any, otherwise applicable under the law governing its issuance.

32. Fiduciary Relationship. (a) A certification authority is a fiduciary to a subscriber where a certification authority holds that subscriber's private key or where provided by contract among the parties involved.

(b) A certification authority is not otherwise a fiduciary to a subscriber and is not a fiduciary to any relying party, except where otherwise expressly provided by contract or law.

33. Financial Responsibility. A certification authority must have sufficient financial resources: (a) to maintain its operations in conformity with its duties; and
(b) to be reasonably able to bear its risk of liability to subscribers and other relying parties relying on certificates issued by the certification authority and digital signatures verifiable by reference to public keys listed in such certificates.

34. Suspension of Certificate. (a) Unless the certification authority and the subscriber agree otherwise, the certification authority that issued a certificate shall suspend the certificate as soon as possible after receiving a request by a person whom the certification authority reasonably believes to be one of the following:

(i) the subscriber listed in the certificate;
(ii) a person duly authorized to act for that subscriber; or
(iii) a person acting on behalf of that subscriber, who is unavailable.

(b) Except as otherwise specifically provided in its certification practice statement, or unless the certification authority and the subscriber agree otherwise, a certification authority that issued a certificate shall suspend the certificate as soon as possible after confirmation by the certification authority that:

(A) a material fact represented in the certificate is false;
(B) a material requirement for issuance of the certificate was not satisfied;
(C) the certification authority's private key or trustworthy system was compromised in a manner materially affecting the certificate's reliability; or
(D)the subscriber's private key has been compromised.

(c) Immediately upon suspension of a certificate by a certification authority, the certification authority shall notify the subscriber and relying parties in accordance with its certification practice statement or, in the absence of such statement, shall promptly notify the subscriber, promptly publish a signed notice of the suspension in the repository specified in the certificate for publication of notice of suspension, and otherwise disclose the fact of suspension on inquiry be any relying party. Where one or more repositories are specified, the certification authority shall publish signed notices of the suspension in all such repositories.

35. Revocation of Certificate

(a) Except as otherwise specifically provided in its certification practice statement, or unless the certification authority and the subscriber agree otherwise, a certification authority shall revoke a certificate that it issues upon the occurrence of the following:

(i) receiving a request for revocation by the subscriber named in the certificate, and confirming that the person requesting revocation is the subscriber or is an agent of the subscriber with authority to request the revocation;
(ii) receiving a certified copy of the subscriber's death certificate, or upon confirming by other verifiable evidence that the subscriber is dead;
(iii) upon presentation of documents effecting a corporate dissolution of the subscriber or upon confirming by other verifiable evidence that the subscriber has been dissolved or has ceased to exist; or
(iv) confirmation by the certification authority that of the following events has occurred, provided that no such revocation may be made until the subscriber has had a reasonable opportunity for a hearing:

(A) a material fact represented in the certificate is false;
(B) a material requirement for issuance of the certificate was not satisfied;
(C) the certification authority's private key or trustworthy system was compromised in a manner materially affecting the certificate's reliability; or
(D)the subscriber's private key has been compromised.

(b) Upon effecting such a revocation, the certification authority shall immediately provide notice as follows:

(i) immediately upon revocation of a certificate by a certification authority, the certification authority shall promptly notify the subscriber listed in the revoked certificate (if not deceased, dissolved or ceased to exist) and any relying parties in accordance with its certification practice statement or, in the absence of such statement, shall promptly notify the subscriber, promptly publish a signed notice of the revocation in the repository specified in the certificate for publication of notice of revocation, and otherwise disclose the fact of revocation on inquiry by a relying party; and
(ii) where one or more repositories are specified, the certification authority shall publish signed notices of the revocation in all such repositories.

PART VIII -- DUTIES OF SUBSCRIBERS

36. Generating A Key Pair.

(a) If the subscriber generates the key pair whose public key is to be listed in a certificate issued by a certification authority and accepted by the subscriber, the subscriber shall generate that key pair using a trustworthy system.

(b) This section shall not apply to a subscriber who generates the key pair using a system approved by the certification authority. 37. Obtaining A Certificate. All material representations made by the subscriber to a certification authority for purposes of obtaining a certificate, including all information known to the subscriber and represented in the certificate, shall be accurate and complete to the best of the subscriber's knowledge and belief, regardless of whether such representations are confirmed by the certification authority.

37. Acceptance of Certificate.

(a) A subscriber shall be deemed to have accepted a certificate if that subscriber:
(i) publishes or authorizes the publication of a certificate in one of the following ways:

(A) to one or more persons; or
(B) in a repository; or

(ii) otherwise demonstrates approval of a certificate while knowing or having notice of its contents.

(b) By accepting a certificate issued by a certification authority, the subscriber listed in the certificate certifies to all who reasonably rely on the information contained in the certificate as follows:
(i) that the subscriber rightfully holds the private key corresponding to the public key listed in the certificate;
(ii) that all material representations made by the subscriber to the certification authority and material to the information listed in the certificate are true; and
(iii) that all information in the certificate that is within the knowledge of the subscriber is true.

38. Control of Private Key.
(a) By accepting a certificate issued by a certification authority, the subscriber identified in the certificate assumes a duty to exercise reasonable care to retain control of the private key corresponding to the public key listed in such certificate and to prevent its disclosure to any person not authorized to create the subscriber's digital signature.
(b) Such duty shall continue during the operational period of the certificate and during any period of suspension of the certificate.

39. Initiating Suspension or Revocation. A subscriber who has accepted a certificate shall as soon as possible notify the issuing certification authority and request said authority to suspend or revoke the certificate if the private key corresponding to the public key listed in the certificate has been compromised.

PART IX -- REGULATION OF CERTIFICATION AUTHORITIES AND REPOSITORIES

40. Appointment of Controller and Other Officers

(a) The Central Government shall appoint a Controller of Certification Authorities for the purpose of this Act and, in particular, for the purposes of licensing, certifying, monitoring and overseeing the activities of certification authorities.
(b) The Controller may, after consultation with the Central Government, appoint such number of Deputy and Assistant Controllers of Certification Authorities and officers as the Controller considers necessary to exercise and perform all or any of the powers and duties of the Controller under this Act or rules made under this Act, except for the Controller's power to direct compliance as set forth in Section 54 of this Act.
(c) The Controller, the Deputy and Assistant Controllers and officers appointed by the Controller under Section 41 shall exercise, discharge and perform the powers, duties and functions conferred on the Controller under this Act or any rules made under this Act, subject to such written directions as may be issued by the Central Government to the Controller and subject to Section 54 of this Act.
(d) The Controller shall maintain a publicly accessible database containing a certification authority disclosure record for each certification authority which shall contain all the particulars required under the rules made under this Act.
(e) The Controller may investigate complaints or other information indicating violations of rules adopted under this Act, and may refer for prosecution any suspected or alleged violations to the appropriate government agency.
(f) In the application of the provisions of this Act to certificates issued by the Controller and digital signatures verified by reference to those certificates, the Controller shall be deemed to be a certification authority.
(g) The Controller, the Deputy, Assistant Controller and officers appointed by the Controller shall be deemed to be public servants for the purposes of the Penal Code.
(h) In exercising any of the powers under this Act, any officer appointed by the Controller shall on demand produce to the person against whom he is acting the authority issued to him by the Controller.

41. Recognition of Foreign Certification Authorities
(a) Certificates issued by a foreign certification authority, and signatures and records complying with the laws of another jurisdiction relating to digital or other electronic signatures, are recognized as legally equivalent to certificates issued by certification authorities operating under this Act, and to the signatures and records complying with this Act, if the laws of the other jurisdiction and the practices of the foreign certification authority require a level of reliability at least equivalent to that required for such certificates, records and signatures under this Act.
(b) Notwithstanding the preceding paragraph, the Controller and parties to commercial and other transactions may specify that a particular certification authority, class of certification authorities or class of certificates must be used in connection with messages or signatures submitted to them.
(c) The determination of equivalence described in subsection (a) may be made by a published determination of the Controller in the Official Gazette or through bilateral or multilateral agreement with other jurisdictions. The determination of equivalence, shall be made with regard to the following factors:

(i) financial and human resources, including existence of assets within jurisdiction;
(ii) trustworthiness of hardware and software systems; (iii) procedures for processing of certificates and applications for certificates and retention of records;
(iv) availability of information to subscribers identified in certificates and to potential relying parties;
(v) regularity and extent of audit by an independent body;
(vi) the existence of a declaration by the jurisdiction, an accreditation body or the certification authority regarding compliance with or existence of the foregoing;
(vii) susceptibility to the jurisdiction of the courts of the enacting jurisdiction; and
(viii) the degree of discrepancy between the law applicable to the liability of the certification authority and the law of the enacting jurisdiction.

42. Recommended Reliance Limit

(a) A certification authority may, in issuing a certificate to a subscriber, specify a recommended reliance limit in the certificate.
(b) The certification authority may specify different limits in different certificates as it deems appropriate.

43. Liability Limits for Certification Authorities. Unless a certification authority expressly waives the application of this section, a certification authority shall not be liable for the following:

(a) For any loss caused by reliance on a false or forged digital signature of a subscriber if, with respect to the false or forged digital signature, the certification authority complied with the requirements of this Act and applicable regulations; and

(b) For an amount in excess of the amount specified in the certificate as its recommended reliance limit for either:

(i) a loss caused by reliance on a misrepresentation in the certificate of any fact that the certification authority is required to confirm; or
(ii) intentional or knowing failure to comply with any provisions of this Act in issuing the certificate, unless such failure to comply was done intentionally or knowingly.

44. Recognition of Repositories.

(a) The Controller may recognize one or more repositories after determining that a repository to be recognized satisfies the requirements prescribed in the regulations made under this Act.
(b) The Controller shall publish a list of recognized repositories in such form and manner as he may determine.

45. Liability of Repositories.

(a) Notwithstanding any disclaimer by the repository or any contract to the contrary between the repository and a certification authority or a subscriber, a repository shall be liable for a loss incurred by a person reasonably relying on a digital signature verified by the public key listed in a suspended or revoked certificate, if loss was incurred more than one business day after receipt by the repository of a request to publish notice of the suspension or revocation, and the repository had failed to publish the notice when the person relied on the digital signature.

(b) Unless waived, a recognized repository or the owner or operator of a recognized repository:
(i) shall not be liable for failure to record publication of a suspension or revocation, unless the repository has received notice of publication and one business day has elapsed since the notice was received;
(ii) shall not be liable under subsection (a) in excess of the amount specified in the certificate as the recommended reliance limit;
(iii) shall not be liable under subsection (a) for:

(A) punitive or exemplary damages; or
(B) damages for pain or suffering;

(iv) shall not be liable for misrepresentation in a certificate published by a certification authority;
(v) shall not be liable for accurately recording or reporting information which a certification authority, a court or the Controller has published as required or permitted under this Act, including information about the suspension or revocation of a certificate; and
(vi) shall not be liable for reporting information about a certification authority, a certificate or a subscriber, if such information is published as required or permitted under this Act or is published by order of the Controller in the exercise of his powers under this Act.

PART X - GOVERNMENT USE OF ELECTRONIC RECORDS AND SIGNATURES

46. Acceptance of Electronic Filing and Issue of Documents.

(a) Any department or ministry of Central Government, State Government or a statutory corporation under Central or State Government that, pursuant to any enactment:

(i) accepts the filing of documents or requires that documents be created or retained;
(ii) issues any permit, license or approval; or
(iii) provides for the method and manner of payment, may, notwithstanding anything to the contrary in such enactment:

(A) accept the filing of such documents, or the creation or retention of such documents, in the form of electronic records;

(B) issue such permit, license or approval in the form of electronic records; or

(C) make such payment in electronic form.

(b) In any case where a department or ministry of Central Government, State Government or a statutory corporation under Central or State Government decides to perform any of the functions in subsection (a)(i), (ii), or (iii), such agency may specify:
(i) the manner and format in which such electronic records shall be filed, created, retained or issued;
(ii) where such electronic records are required to be signed, the type of electronic signature required (including, if applicable, a requirement that the sender use a secure electronic signature);
(iii) the manner and format in which such signature shall be affixed to the electronic record, and the identity of or criteria that shall be met by any certification authority used by the person filing the document;
(iv) control processes and procedures as appropriate to ensure adequate integrity, security and confidentiality of electronic records or payments; and
(v) any other required attributes for electronic records or payments that are currently specified for corresponding paper documents.

(c) Nothing in this Act shall by itself compel any department or ministry of the Central Government, State Government or a statutory corporation under Central or State Government to accept or issue any document in the form of electronic records.

PART XI -- LIABILITY OF NETWORK SERVICE PROVIDERS

47.Liability of Network Service Providers. (a) A network service provider shall not be subject to any civil or criminal liability under any rule of law in respect of third party material in the form of electronic records to which such provider merely provides access if such liability is founded on:

(i) the making, publication, dissemination or distribution of such materials or any statement made in such material; or
(ii) the infringement of any rights subsisting in or in relation to such material.

(b) Nothing in this section shall affect:
(i) any obligation of the network service provider founded on principles of contract law;
(ii) the obligation of a network service provider as such under a licensing or other regulatory regime established under any enactment for the time being in force; or
(iii) any obligation imposed under any enactment for the time being in force or by a court to remove, block or deny access to any material;
(iv) the provisions of Section 52 of this Act.

(c) Nothing in clause (a) of this section shall render a network service provider immune from liability for any violation of law for the time being in force (including provisions of this Act) committed intentionally or knowingly.

PART XII - COMPUTER CRIME

48. Computer Crime. For the purpose of this Act, any person who commits any of the following acts is guilty of an offense of computer crime:
(a) Intentionally accesses, damages or conceals, or attempts to access, damage or conceal, temporarily or permanently, any computer data base, computer, information system or computer network, without permission from the owner, in order to either:
(i) wrongfully control, obtain, make use of or prevent others from deriving the benefits of money, property, data or electronic records;
(ii) copy or destroy any data or electronic records;
(iii) use or disrupt any functions of computers, computer networks or information systems; or
(iv) commit any act that is an offense under the Indian Penal Code.

(b) Knowingly, and with the intent to defraud, obtains or attempts to obtain any computer services by false representation, false statement or unauthorized charging to the account of another, by installing or tampering with any facilities or equipment, or by any other means.

(c) Intentionally or recklessly introduces or allows the introduction of any computer virus into any computer, computer system or computer network without permission of the owner.

49. Penalities

(a) Any person who commits the offense of computer crime as set forth in the provisions of Section 49(a) of this Act is punishable as follows:
(i) For the first offense that does not result in damage, by imprisonment up to 1 year or by a fine not to exceed Rs. 1,00,000 or both;
(ii) For second or subsequent offenses, or in cases where damage occurs, by imprisonment up to three years or by a fine up to Rs. 2,00,000, or by both, and if government or public property is injured, by imprisonment up to three years or by a fine up to Rs. 5,00,000 or both;

(b) Any person who commits offense as under Section 49(b) of this Act shall be punishable as follows :

(i) For the first offense which does not result in damage, and where the value of the computer services used does not exceed Rs. 10,000, by a fine not exceeding Rs. 1,00,000, or by imprisonment not exceeding one year, or by both.

(ii) For any offense which results in damage of an amount greater than Rs. 1,00,000 or in an damage, or if the value of the computer services used exceeds Rs. 10,000, or for any second or subsequent violation, by a fine not exceeding Rs. 2,00,000, or by imprisonment up to three years, or by both.

(c) Any person who commits offense as per Section 49(c) of this Act is punishable as follows :

(i) For a first offense which does not result in damage, an infraction punishable by a fine not exceeding Rs. 10,000. (ii) For any offense which results in damage in an amount not greater than Rs. 50,000, or for a second or subsequent violation, by a fine not exceeding Rs. 1,00,000 or by imprisonment not exceeding one year, or by both.

(iii) For any offense which results in damage in an amount greater than Rs. 50,000, by a fine not exceeding Rs. 2,00,000, or by imprisonment up to three years, or by both.

(d) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offenses under this Act shall be bailable, noncognizable, and triable exclusively by the Chief Metropolitan Magistrate, Additional Chief Metropolitan Magistrate, Chief Judicial Magistrate or Additional Chief Judicial Magistrate.

50. Forfeiture.

(a) Any person who commits the offense of computer crime as set forth in Section 49 of this Act shall forfeit, according to the provisions of this section, any monies, profits or proceeds, and any interest or property which the sentencing court determines he has acquired or maintained, directly or indirectly, in whole or in part, as a result of such offense. Such person shall also forfeit any interest in, security, claim against or contractual right of any kind which affords him a source of influence over any enterprise which he has established, operated, controlled, conducted or participated in conducting, where his relationship to or connection with any such thing or activity directly or indirectly, in whole or in part, is traceable to any item or benefit which he has obtained or acquired through computer fraud.

(b) Any computer, computer system, computer network or any software or data, owned by such person, which is used during the commission of any public offense described in Section 49 or any computer, owned by the person, which is used as a repository for the storage of software or data illegally obtained in violation of Section 49 shall be subject to forfeiture under orders of the Court ordering his conviction.

PART XIII -- GENERAL

51. Confidentiality.

(a)Obligation of Confidentiality.

(i) Except where compelled by any court of law or pursuant to any law for the time being in force, no certification authority, Controller or network service provider, or their respective agents or employees, that have obtained access to any material, shall disclose such material to any other person without the prior consent of the owner of such material, except in cases where such disclosure is being made for the purpose of protecting his interest or for such other purpose as may be prescribed.
(ii)Except where compelled by any court of law or pursuant to any law for the time being in force, no person who has obtained unauthorized access to any electronic record shall intentionally or knowingly disclose such record or its contents to any other person. The provisions of this section shall be without prejudice to any liability which such person may have incurred by reason of the unauthorized access.

(b) Penalty for Breach of Confidentiality.

(i) Any network service provider who intentionally, knowingly or negligently contravenes subsections (a) shall be (A) enjoined by a court from acting as a network service provider for a period not to exceed three (3) months, or (B) liable in damages sustained by the owner, such damages to amount to no less than Rs. 10,000, or (C) both.

(ii) Any person other than a network service provider who intentionally contravenes subsection (a) shall be guilty of an offense and shall be liable upon conviction to imprisonment not to exceed 6 months or fines not to exceed Rs. 50,000 or to both. Explanation: In this section, "material" includes any electronic record, book, register, correspondence, information or document.

52. Offense by Body Corporate. Where an offense under this Act or any rules made under this Act is committed by a body corporate and such offense is proved to have been committed with the consent or connivance of, or is proved to be attributable to, any act or default on the part of any director, manager, secretary or other similar officer of the body corporate, he as well as the body corporate, shall be guilty of that offense and shall be liable to be proceeded against and punished accordingly.

53. Controller May Give Directions for Compliance.

(a) The Controller may direct, by notice in writing, a certification authority or any officer or employee thereof to take such measures or stop carrying on such activities as are specified in the notice, if such action is necessary to ensure compliance with the provisions of this Act or any rules made under this Act.
(b) Any person who fails to comply with any direction specified in a notice issued under subsection(a) shall be guilty of an offense and shall be liable on conviction to imprisonment for a term not exceeding 1 year or a fine not exceeding Rs. 1,00,000 or both.

54. Power to Investigate.
(a) The Controller or an authorized officer may investigate, pursuant to a written order issued by the Controller or the officer, the activities of a certification authority in relation to its compliance with this Act and any rules made under this Act.
(b) For the purposes of subsection (a), the Controller may in writing issue an order to a certification authority to further its investigation.
(c) The Controller or an authorized officer may make reasonable inquiry, pursuant to a written order, of any person reasonably believed to have relevant information in connection with the commission of any offense under this Act.

55. Access to Computers and Data. The Controller or an authorized officer shall:

(a) be entitled at any time reasonable under the circumstances to:

(i) have access to, inspect and check the operation of any information system and any associated apparatus or material which he has reasonable cause to suspect is or has been in use in connection with any offense under this Act;
(ii) use or caused to be used any such information system to search any data contained in or available to such information system; or

(b) be entitled to require:

(i) the person by whom or on whose behalf the Controller or authorized officer has reasonable cause to suspect the computer is or has been so used; or
(ii) any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material, to provide him with such reasonable technical and other assistance as he may require for the purposes of subsection (a).

57. Production of Documents, Data, etc. The Controller shall, for the purposes of the implementation of this Act, have power to do all or any of the following:

(a) require, by a written order, the production of records, accounts, data and documents kept by a certification authority and to inspect, examine and copy any of them;
(b) require, by a written order, the production of any document from any person reasonably in relation to any offense under this Act or any regulations promulgated under this Act.

56. General Penalty. Any person who (a) contravenes any provision of this Act or (b) fails to comply with any notice or written order lawfully issued under this Act, shall be guilty of an offense and, if no penalty is provided in this Act for such offense, shall be punished with imprisonment for a term not exceeding 6 months or a fine not exceeding 1,00,000 or both. 59. Sanction for prosecution. No prosecution in respect of any offense under this Act or any rule made under this Act shall be instituted except by or with the previous sanction of the Central Government.

57. Power to Exempt. The Central Government may by notification published in the Official Gazette, exempt, in the public interest, any person or class of persons from all or any of the provisions of this Act or any rules made under this Act.

58. Power of Central Government to make rules.

(a) The Central Government may make rules, by notification in the Official Gazette, to carry out the purposes of this Act.
(b) Without prejudice to the generality of the power conferred by clause (a), the rules made thereunder may provide for all or any of the following matters:

(i) to define when a digital signature qualifies as a secure electronic signature consistent with the provisions of this Act;
(ii) to ensure the quality of repositories and the services they provide;
(iii) licensing of certification authorities and their authorized representatives and matters incidental thereto; the activities of certification authorities, including the manner, method and place of soliciting business, and the conduct of such solicitation, if any.
(v) the standards to be maintained by certification authorities;
(vi) prescribing the appropriate standards with respect to the qualifications, experience and training of applicants for any certification authority or for their employees;
(vii) prescribing the conditions for the conduct of business by a certification authority;
(viii) providing for the content and distribution of written, printed or visual material and advertisements that may be distributed or used by a person in respect of a digital certificate or key;
(ix) prescribing the form and content of a digital certificate or key;
(x) prescribing the particulars to be recorded in, or in respect of, accounts kept by certification authorities;
(xi) providing for the appointment and remuneration of an auditor appointed under the regulations and for the costs of an audit carried out under the regulations;
(xii) providing for the establishment and regulation of any electronic system by a certification authority, whether by itself or in conjunction with other certification authorities, and for the imposition and modification of such requirements, conditions or restrictions as the Controller may deem appropriate;
(xiii) the manner in which a certification authority conducts its dealings with its customers, conflicts of interest involving the certification authority and its customers, and the duties of the certification authority to its customers with respect to digital certificates;
(xiv) prescribing any forms for the purposes of the rules; and
(xv) prescribing fees to be paid in respect of any matter or thing required for the purposes of this Act or the rules.

(c) Rules made under this section may provide that a contravention of a specified provision shall be an offense and may provide penalties not exceeding a fine of Rs. 50,000.

(d)Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised of in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

(e) All rules made by the Central Government under this Act shall be published in the Official Gazette.

59.Power to remove difficulties. If any difficulty arises in giving effect to the provisions of this Act, the Central Government may by an order published in the Official Gazette make such provisions as necessary for the purpose of removing the difficulty. No such order shall be made after two years from the commencement of this Act.

THE ELECTRONIC COMMERCE SUPPORT ACT, 1998

An Act to amend various Central Acts to facilitate electronic commerce. WHEREAS the rapid development of electronic commerce in India makes it expedient to amend existing legislation to facilitate the continued growth of electronic commerce and to resolve questions raised regarding the applicability of such legislation to the unique features of the electronic regime;
It is hereby enacted as follows:


1.Short title, Extent and Commencement. This Act may be called the Electronic Commerce Support Act, 1998. This Act extends to the whole of India, except the state of Jammu and Kashmir.
This Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf.

2.Amendments to the Indian Penal Code.
(a). The Indian Penal Code is amended by adding to the end of section 29 the words ";or an electronic record as defined by the Electronic Commerce Act, 1998."
(b). A new Section 4A shall be added to the Indian Penal Code after section 4 of that Code, as under:


"4A. Electronic Records and Electronic Signatures. In the application of the provisions of this Code to offences relating to electronic records or electronic signatures, due regard shall be given to the provisions of the Electronic Commerce Act, 1998 and, in particular, words and expressions used but not defined in this Code shall, unless the context otherwise requires, be construed as having the same meaning as is assigned to them respectively by that Act."

(c). New sections 29A, 29B, 29C and 29D shall be added to the Indian Penal Code after section 29, as under:

"29A. Electronic Record. The term "electronic record," shall have the same meaning as assigned to it in the Electronic Commerce Act, 1998.


29B. Electronic Signature. The term "electronic signature" shall have the same meaning as assigned to it in the Electronic Commerce Act, 1998.

29C. Signature and Sign. The terms "signature" and "sign" shall have the same meanings as assigned to them in the Electronic Commerce Act, 1998.

29D. Writing. The term "writing" shall have the same meaning as assigned to it in the General Clauses Act, 1897, as amended by the Electronic Commerce Support Act, 1998."

3.Amendments to the Indian Evidence Act, 1872. (a) Section 1 of the Indian Evidence Act, 1872 shall be amended by inserting at the end of the paragraph entitled "Extent" the following:

"In the application of this Act to electronic records or electronic signatures as defined in the Electronic Commerce Act, 1998, due regard shall be had to the provisions of the latter Act."

(b) The definition of "document" in Section 3 of the Indian Evidence Act, 1872 shall be replaced with the following definition:

"Document means (i) any matter expressed, inscribed or described upon any substance by means of letters, figures or marks, or by more than one of those means, which is intended to be used or which may be used for the purpose of recording that matter; or (ii) any electronic record."

(c) Section 3 of the Indian Evidence Act, 1872 shall be amended by adding the following definitions at the end of that section:

"electronic signature" shall have the meaning assigned to it in the Electronic Commerce Act, 1998.
"electronic record" shall have the meaning assigned to it in the Electronic Commerce Act, 1998.
"writing" shall have the meaning assigned to it in the General Clauses Act, 1897 as amended by the Electronic Commerce Support Act, 1998.
"signature" or "signed" shall have the meaning assigned to it in the Electronic Commerce Act, 1998.
"books" shall include electronic records and shall be construed accordingly.

(d) The definition of "evidence" in Section 3 of the Indian Evidence Act, 1872 shall be amended by replacing the second clause with the following:

"(2) all documents produced for the inspection of the court, including matter in the form of electronic records."

(e) Section 35 of the Indian Evidence Act, 1872 shall be amended by adding the words "including an electronic record" after the word "record."

(f) Section 47 of the Indian Evidence Act, 1872 shall be amended by adding at the end of that section the following:

"In assessing the weight of electronic records or electronic signatures, due regard shall be had to the provisions of the Electronic Commerce Act, 1998."

(g) Section 58 of the Indian Evidence Act, 1872 shall be amended by inserting after the words "under their hands" the words "or under their electronic signature."

(h) Section 61 of the Indian Evidence Act, 1872 shall be amended by adding at the end of that section the following:

"Provided that nothing in this section shall affect the provisions of the Electronic Commerce Act, 1998."

(i) Section 62, Explanation 2 of the Indian Evidence Act, 1872 shall be amended by adding at the end of that Explanation the following:

"Nothing in this Section shall affect the provisions of Section 9 or 10 of the Electronic Commerce Act, 1998."

(j) Section 63 of the Indian Evidence Act, 1872 shall be amended by adding at its end the following:

"(6) electronic records that do not qualify as originals under Section 9 of the Electronic Commerce Act, 1998."

(k) Section 65 of the Indian Evidence Act, 1872 shall be amended by adding in clause (d) after the word "movable" the following: "or forms part of an electronic record."

(l) A new Section 67A shall be inserted into the Indian Evidence Act after Section 67 as under:

"67A. Proof of electronic signatures. Subject to the provisions of the Electronic Commerce Act, 1998, if an electronic record is alleged to bear the electronic signature of any person, such signature must be proved to be his.

Comments: This section is intended to amend the Indian Evidence Act to facilitate the use of electronic records and signatures as evidence and to harmonize this Act with the Electronic Commerce Act.

4.Amendments to the Indian Contract Act, 1872. (a) Section 1 of the Indian Contract Act, 1872 is amended by adding at the end of the paragraph entitled "Extent, commencement" the following:

"In the application of this Act to contracts entered into through an electronic record or bearing an electronic signature, as those terms are defined by the Electronic Commerce Act, 1998, due regard shall be had to the provisions of the latter Act."

(b) New sections 2A, 2B, 2C and 2D shall be added to the Indian Contract Act, 1872, as under: "2A. Electronic Record. The term "electronic record," shall have the same meaning as assigned to it in the Electronic Commerce Act, 1998.

2B. Electronic Signature. The term "electronic signature" shall have the same meaning as assigned to it in the Electronic Commerce Act, 1998.

2C. Signature and Sign. The terms "signature" and "sign" shall have the same meanings as assigned to them in the Electronic Commerce Act, 1998.

2D. Writing. The term "writing" shall have the same meaning as assigned to it in the General Clauses Act, 1897, as amended by the Electronic Commerce Support Act, 1998."

5.Amendment to the Indian Telegraph Act, 1885. The Indian Telegraph Act, 1885 is amended by adding a new section 34A as under:

"Nothing in this Act shall affect the provisions of the Electronic Commerce Act, 1998 and, in particular, nothing in this Act shall be construed to prohibit the transmission or receipt of encrypted data in the form of electronic records, as that term is defined in the Electronic Commerce Act, 1998."

6. Amendments to the Banker's Books Evidence Act of 1891. (a) In Section 2 of the Banker's Books Evidence Act, 1891, sub-section (3) is replaced with the following:

"(3)" banker's books" include ledgers, day-books, cash books, account-books and other records used in the ordinary business of the bank, whether those records are in written form or are electronic records, as defined in the Electronic Commerce Act, 1998."

(b) New sections 2A, 2B, 2C and 2D shall be added to the Indian Penal Code, as under:

"2A. Electronic Record. The term "electronic record," shall have the same meaning as assigned to it in the Electronic Commerce Act, 1998.

2B. Electronic Signature. The term "electronic signature" shall have the same meaning as assigned to it in the Electronic Commerce Act, 1998.

2C. Signature and Sign. The terms "signature" and "sign" shall have the same meanings as assigned to them in the Electronic Commerce Act, 1998.

2D. Writing. The term "writing" shall have the same meaning as assigned to it in the General Clauses Act, 1897, as amended by the Electronic Commerce Support Act, 1998."

7. Amendments to the General Clauses Act, 1897. (a) The General Clauses Act, 1897 is amended by inserting immediately after section 3(18) the following:

"and includes an electronic record, as defined by the Electronic Commerce Act, 1998."

(b) The General Clauses Act, 1897 is amended by inserting at the end of section 3(65) the following:

"and includes electronic records, as defined by the Electronic Commerce Act, 1998."

Comments: This section expands the definitions of "document" and "writing" under the General Clauses Act to incorporate electronic records.

8. Amendments to the Reserve Bank of India Act, 1934,

(a) The Reserve Bank of India Act, 1934 is amended by inserting after Chapter IIIC, the following Chapter III D: "Chapter III D

(1) If the Bank is satisfied that in the interest of development of efficient payment systems it is necessary to promote and establish multiple electronic funds transfer (EFT) systems, it may by order, allow banking companies, financial or other institutions, or any other person desirous of setting up an EFT System to apply for authorisation from the Bank to commence and operate an EFT System.

(2) An application for approval under sub-section (1) shall be submitted in the form specified by the Bank from time to time, along with a scheme of operations of the proposed system and the documents relating to rights, duties and liabilities of the person participating in such system.

(3) The Bank may, before granting approval for any such proposed system, require the applicant or the proposed participants in the system to submit such further information and particulars as considered necessary and the Bank may also cause such reasonable inspection of the premises, equipments, machineries, books or other documents, or accounts and transactions, relating to the proposed system as considered essential by the Bank, with permission of the applicant.

(4) The Bank may, subject to such modifications and alterations to the scheme and any contract and documents submitted therewith as are considered desirable, approve or reject any application submitted for approval under sub-section (2). Provided that while approving the scheme, the Bank may impose such terms, restrictions, limitations and conditions as it may deem fit, on the applicant or the proposed participant or any other person likely to be affected or benefited thereby. Provided further, that before rejecting any such application the Bank may serve notice on the applicant requiring it to show cause as to why the application should not rejected and if so requested by the applicant, an opportunity for hearing should also be given.

(5) Any Regulation framed by the Bank for regulation of multiple payment systems shall be binding on the applicant, the proposed participants and any other person likely to be affected or benefited thereby.

(6) No person, other than a person whose application is approved by the Bank under sub-section (4) shall commence or operate any EFT System.

Explanation: For the purpose of this Section:

"EFT System" means the Electronic Fund Transfer System established by these Regulations for carrying out interbank and intrabank funds transfers within India, through EFT centres connected by a network, and providing for settlement of payment obligations arising out of such funds transfers, between participating banks or institutions. "banking company" means a company as defined in Section 5 of the Banking Regulation Act, 1949, and includes the State Bank of India, constituted by the State Bank of India Act, 1955, a Subsidiary Bank constituted under the State Bank of India (Subsidiary Banks) Act, 1959, a Corresponding New Bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 or the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980, a cooperative bank, as defined in Section 56 of Part V of the Banking Regulation Act, 1949 and such other banks as may be specified from time to time. "Financial Institutions" shall bear the meaning assigned to it in Section 4A(1) of the Companies Act, 1956 and includes an institution notified under Sub-section (2) of that Section. "Institution" means a public financial institution and includes a department or agency of the Central or State Government or any other organisation approved by the Reserve Bank as eligible to open a settlement account with it."

(b) Section 58(2) of the Reserve Bank of India Act, 1934, is amended by inserted after existing clause (P), the following new clause (PP):

"(PP) The regulation of multiple payment systems"