This is part of a series of articles on the proposed Digital India Act set to replace the ITA 2000 which was once amended in 2008. Another small set of amendments proposed by a single man committee of T K Vishwanathan in 2017 was scrapped. Now MeitY is interested in bringing the law upto date to accommodate the current technology eco system which includes Blockchain, Artificial Intelligence, Meta Verse, Crypto Currencies and new crimes like Ransomware.
In this context some discussions have ensued in the media and provide our comments. Viewers may be aware that there is no other website in the world which has more comprehensive discussions of Cyber Law in India starting from around 1998 till date. If you click on the menu link on ITA 2008 and the next link on The Evolution of Amendments , you will reach the page where you can catch all discussions from E Commerce Act 1998 to ITA 2000, the Expert Committee suggestion of ITA 2005, then ITA 2008 etc. (Click for the link here)
Now we will start our discussions on the Digital India Act as well from the news paper generated discussions now until the Act is finally passed.
I request all interested persons to keep watching this space and add their comments.
We shall create a “Block Chain” of suggestions
The Digital India Act appears to be the brainchild of Mr Rajeev Chandrashekar and the success or failure of the same may both be attributed to him.
While any clarifications in terms of a new law is welcome since many of our lawyers and even the Courts donot understand the Technology environment, let us also see how the old ITA 2000 itself can be applied for some of these issues arising out of new technological developments.
In one of the articles which appeared in Economic Times yesterday titled “Digital India Act to Police Social Media and OTT Platforms”, a ghost digital expert who is privy to the discussions appeared to have raised the following question in justification of the need for the new law.
So, for instance, if a metaverse avatar bullies or sexually abuses another avatar, how does one even register such a crime?”
“Or, someone is stealing my crypto assets, replicating my NFTs, or for that matter, who could access my digital credentials, including Aadhar card data, or my finance data, or the food that I order on apps?”
Now let us try to interpret the status of the “Meta Verse Avatar” and the impact of its actions in the “Meta Verse Platform”.
In techno legal terms, a “Meta Verse Avatar” is an electronic document with a specific characteristics. While an “e-mail address” is an electronic document with an associated name and any e-mails sent under that name can be attributed to the owner of the e-mail (May be with a digital signature to back or the intermediary to substantiate), the “Meta Verse Avatar” is also an electronic document with a more detailed set of parameters which gets converted on a computer screen not as firstname.lastname@example.org but as a 3D picture. Just as one can send a series of messages in a WhatsApp account and each such message is an electronic document including an audio or a video, the actions of a meta verse avatar is also a video. While normal videos are pre-recorded, the Meta Verse avatar is a participant in the video in real time.
Hence laws applicable to an electronic document under ITA 2000/8 can be applied to the Meta Verse avatar.
The “Abuse” can be recognized that the victim avatar can identify herself and produce a Section 65B certified evidence about the conduct of the accused avatar whose identity may not be known to the victim. But the police can investigate and find out the identity of the accused avatar with the help of the Meta Verse platform which is the “Intermediary”.
It is possible that the “Abusive Act” might have happened in a “Public Meta Verse space” or a “Private Meta Verse Space”. A Public Meta Verse space is one where there are other avatars other than the accused and the victim. There is an element of “Virtual Defamation” in the crime. On the other hand if the abuse occurs in a private space where only the victim and the accused alone were there, then we are looking at “harassment” and consequences arising there of.
Current IPC has sections to address both defamation and harassment and they can be applied in this case using ITA 2000 along with the assistance of the Intermediary obliged to cooperate under Section 79.
We must however recall that our honourable Supreme Court did not understand the concept of “Digital harassment” when it struck down Section 66A under the wrong perception that “Publishing” and “Messaging” are same and hence “Harassment through messages” could be considered as “Free Speech” and hence restricting it through Section 66A was not correct. It came to the conclusion that Section 66A had a chilling effect on free speech and hence should be scrapped.
We can use the same incorrect judgement of the Supreme Court now and say that the so called sexual abuse of one avatar by another avatar is the free speech right of the accused avatar and hence Section 66A kind of legislation cannot be applied. Any way, now that Section 66A has been scrapped, one can use an appropriate section under IPC including sexual harassment and say that the “Psychological impact of the abuse on the victim avatar was equivalent to the physical sexual abuse” and hence can be brought under IPC provided the evidence is proved as per the ITA 2000 and Section 65B of Indian Evidence Act.
Hence we donot need to scrap the ITA 2000 to take the Meta Verse crimes to the Adjudicator or the Cyber Crime police.
The argument that we need to scrap the current ITA 2000 because it is incapable of meeting the current technological environment is therefore wrong.
( to be continued…)