Naavi.org

Hindustan Times is considered a news paper with a history. With the years of experience should have come certain maturity in journalism and principles of ethics. But one doubts if Hindustan Times editor had any inkling of what the article published today under the title “The Darknet: A secret world of snuff porn, drugs and guns” and “In The shadows of Darknet, a shelter for crusaders and law breakers alike” under credit to two authors Pranav Dixit and Rezaul H Laskar, could mean in legal terms.

The articles also contain some self admissions of illegal drug trafficking and consumption activities which can be probed to logical conclusion.

This article was perhaps aimed at painting the Government of India at present in bad light and to promote usage of pornographic content by internet browsers.

The article contains URLs of several pornographic websites, and one of the print editions contains a step by step guideline of how to use dark net to browse such sites.

Naturally there has been a question raised by many whether Hindustan Times is teaching everybody including children how to access dark net and pornographic content on the web.

This is nothing different from running a terrorist training camp or at least a training camp for thieves on how to commit burglary.

Normally sub editors and editors regulate the content which inexperienced journalists try to post in the news paper. But in this case it appears that Hindustan Times had no controls to prevent such blatant illegal coaching.

In order to teach a lesson in ethics to the two journalists who have authored the article and the editors who have failed to carry out due diligence, I draw the attention of the Police in Delhi, the Press Council and the Government to initiate appropriate actions against the concerned persons.

If Government does not show the resolve to pull up such journalists like they rightly did against some TV channels for their coverage of Yakub Memon’s hanging, the unethical and unscrupulous journalists will defeat the very purpose of law such as Section 67B of ITA 2008.

I also call upon the Narcotics Control division to take note of what is stated in the article and follow up.

The Chief Editor of Hindustan Times needs to apologize to the public for such a blatant error of judgement on the part of his publication.

Naavi

Bangalore saw a congregation of enthusiastic domain investors on August 7th and 8th in the second DomainX conference  in India, held at Taj WestEnd. There were several international participants and also from across the country demonstrating a growing interest in “Domaineering”.

It is a part of internet history that registering of popular domain names in the initial stages created huge wealth for some smart domain registrants in the early days of internet. However, after the emergence of UDRP and a number of consistent decisions upholding the rights of the trademark owners against domain registrants, a view prevailed that physical society money power had prevailed over the Netizens and it was unsafe to register any domain name which had a value.

Over a period however a fine distinction has developed between domain names registered in bad faith and likely to cause “consumer confusion” with popular brands and/or meant to prevent the legitimate brand owner from registering his own domain name which were identified as “Cyber Squatting” and innovatively constructed domain names with a potential to be used for business as products that can be created and also traded for profit which are the subject matter of domaineering.

Understanding this difference between “Cyber Squatting” and “Domaineering” is an important step towards considering any investment in domain names.

Naavi was a pioneer in the field of finding solutions to resolving of domain name disputes and came up with two important suggestions way back in 2002 to create

a) Trusted third party disclaimer system (www.lookalikes.in)

b) Economical and legally sustainable online arbitration system (www.arbitration.in)

However the market at that time did not appear to be ripe to accept these suggestions since the concepts remained at pilot stage.

It appears to the credit of some innovative business minds some of whom were present in the DomainX 2015 conference that there is now a growing interest in identifying “Domain Names” as a class of investment which can be traded. Case studies of how some of the participants made money in buying and selling domain names shared during the conference made one sit up and take notice of the opportunities.

At the end of the conference one could recognize that many participants went back with a feeling that they too should start looking at this class of investment.

It was therefore a successful conference which met with its objectives of creating interest in the field of “Domaineering”.

The undersigned participated in the conference as  a Cyber Law Educationist in the legal panel and shared some of his views along with others. The objective of the panel discussion was however limited to the discussion of UDRP and hence all relevant legal issues didnot come for detailed discussion.

The undersigned who is also  an ex Merchant Banker and a long time Financial products Marketer, did have many interesting observations arising out of the conference on the concept of “Domain Name as a class of investments”, “Trading of Domain Names”, “Need for Government Policy Changes”, “Protection of Domain Name investors in India”, “Foreign Exchange and Tax implications of Domaineering” etc. These will be explored further in future articles.

At a corner of my mind is also a concern that like in the case of “Bitcoins”, the field of domaineering may have to fight the prospect of keeping its activities on the right side of law or face a legal backlash. Another concern is how the changes in technology in the form of increasing influence that Mobiles are having on our internet activity could affect the future prospect of domaineering.

At the same time, the undersigned also sees a better prospect of making services such as lookalikes.in and ceac  fortified  arbitration.in  more relevant if suitable technology partners emerge besides the additional prospects arising for services like Cyber-notice.com.

Also the need for Cyber Insurance industry to be pushed to debate the status of  domain names as an asset class both for the users and investors has emerged.

We will devote some of the next few articles here to discuss these issues for the general information of the public and to create a platform for further debate.

I invite the suggestions of the readers and their comments in this regard.

Naavi

We refer to the various articles published in this forum (Refer here) on the judgement in the Shreya Singhal Case in which the honourable Supreme Court bench of Justices, F.Nariman and J. Chelmeshwar on 24th March 2015 held that Section 66A of ITA 2008 was not meeting the requirements of constitution and it is so badly drafted that it cannot be “read down”.

The essence of our argument was that the decision was based on a wrong premise that Section 66A was adversely affecting “Free Speech” and was probably guided by a preconceived notion that the arrests made by the Police under Section 66A were all done under the correct interpretation of Section 66A.

On the other hand the facts were different. All the arrests which made the petitioner take up the case to the Court and brought apparently eminent advocates into an argument that the section is unconstitutional were based on “Publishing of content” and not on “Sending of Messages” and hence the entire case was conducted under an erroneous presumption.

As a result the errors of judgement of the police in the field was carried through upto the Supreme Court  and resulted in the quashing of the section.

The Government was incapable of putting up the right argument and let the petition carry through.

The irony was that all those who were supporting Section 66A suddenly turned out as champions of free speech and hailed the decision of the Supreme Court as “Land Mark Judgement”.

Journalists were equally ignorant and in pursuance of a populist opinion praised the decision sky high.

In this entire cacophony, Naavi.org had the conviction to stick its neck out and call the decision a “Mistake” and tried to persuade the Government to apply for a curative petition.

Unfortunately the Government did not share the conviction nor was concerned enough to apply for a revision.

In this background, it is now amusing but satisfying to observe that another bench of the Supreme Court headed by Justice Dipak Misra and Prafulla C Pant seems to have felt the need for  reintroduction of Section 66A  and a need to regulate Social Media.

Refer Article in Times of India

The court’s observation was reportedly made when senior advocate L Nageswara Rao informed the bench that a message was recently circulated on WhatsApp that he was involved in a case of Section 376 of IPC (rape).

Senior advocate K Parasaran, who was assisting the court as amicus curiae, also appears to have cited a recent incident in which wrong information regarding him was widely circulated on the social media.

We are pleased that between March 24 to August 6, the euphoria created by quashing of Section 66A has evaporated and better sense appears to have been restored.

Let’s us hope that at least now the Government of India will draft the revised section to replace Section 66A properly so that uninformed enthusiasts like Shreya Singhal donot rush to Supreme Court and be instruments of creating bad law.

Naavi

Earlier Articles in Naavi.org are available here:

Also here

Pavan Duggal the well known Cyber Law expert in India has joined the panel of experts in the Cyber Law Guru app launched by Naavi with a view to make Cyber Law knowledge reach the common men through an android device. With his joining the expert panel, the panel will now have Naavi, Prashant Mali and Pavan Duggal in the panel. For those who are aware of the development of Cyber Law consultancy in India, Pavan Duggal represents one of the earliest entrants into the field and we are happy that his joining the panel provides a huge boost to the Cyber Law Guru initiative.

The “Cyber Law Guru”  is Part of Naavi’s initiative to take Cyber Law Education to the masses. Presently the App is available on the Android platform  and in due course the ios version will  also be launched.

Both Mr Prashant Mali and Pavan Duggal have impeccable international reputation and I personally thank both  of them for joining hands on this platform. I hope the Netizens of India will appreciate this great opportunity to interact with experts and enrich themselves. We feel that it is the public who by raising intelligent questions can  make this develop into a useful knowledge base.

It is clarified that Cyber Law Guru is not meant for  “Legal Consultancy” and users are free to contact the experts separately if they want any case specific assistance. However general public and more particularly students can make use of this app to be conversant with the Cyber Laws in the country.

Naavi

[Since other experts were unable to respond to queries on the android app, it has been decided to drop their names in the subsequent versions. This post remains only as a matter of record…Naavi]

It had been reported earlier that a Cyber Cafe owner in Pune was imprisoned for 15 days and fined for Rs 10000/-  under Section 67(C) of Information Technology Act 2000 as amended in 2008 (ITA2000/8). We now have a copy of the judgement in this regard provided by Advocate Prashant Mali.  In view of the judgement becoming a precedent at least in a limited jurisdiction, as well as for academic interest, it is necessary for us to dig a little deeper into the judgement and understand the logic behind the decision. This discussion is based only on the copy of the judgement and we donot have access to any other evidence, points of argument or document which was considered by the Court. Copy of the judgement is available here.

Accused Vishal Hiraman Bhogade, Sandesh Sopan Dere have been convicted under this judgement for offences punishable under Section 67(C)(2) of ITA2000/8 but were acquitted under Sec 43(g),66 of ITA 2000/8, and Section 188 of IPC. It is admitted that the main culprit has not been traced till date and the charge sheet against the unknown accused has been ordered to be kept open.

The judgement dated 31st July 2015 is from Honourable Justice S.R.Nimse, JMFC (Court No 3), Pune. The counsel for the accused was Shri K.R.Subedar and for the prosecution, A.P.P. Sou Narote.

The incident that triggered the case was an e-mail received by the Police Commissioner on 25/8/2012 containing a threat that a bomb blast will occur during the Ganesh festival and challenged the Commissioner to stop it. We can recall that in a similar incident in Chennai occurred in December 2004 when a person inspired by the movie “Ramana” sent an email to some secretaries that “Bombs will explode in Six TASMAC shops between Paris and Guindy”.  This was the time when the undersigned was assisting the Chennai police in investigating such crimes and the culprit was arrested the very next day.  At that time there was no ITA 2008 and hence there was no Sec 66A nor 66F to use. Perhaps the case was pursued under IPC. ( Further details of what happened to the case is not known).

It is interesting to note that in the instant case in Pune the initial charge sheet was filed under Sec 43/66 of ITA2008, and Sec 188 of IPC. Subsequently Section 67(C) was added and finally conviction occurred under this section. Police could have tried Sec 66A though how the Court would have dealt with it after the section being squashed by Supreme Court is not known since at the time the offence was committed, Section 66A was in operation and “Threat through E Mail” could have been tried under the section.

An important precedent that this Case has thrown up is that conviction of an intermediary is possible even before the ultimate cyber criminal is traced.  In many of the Bank fraud cases, the undersigned has been complaining that the Police are reluctant to proceed against the Bank as an intermediary and this judgement would be a good precedent at least in the State of Maharashtra for booking criminal cases against Banks in respect of Phishing complaints. There are already several cases in which the Adjudicator of Maharashtra has held that the Bank involved in Phishing is guilty of negligence and therefore liable under ITA 2008 to pay compensation to the victim. The Police need to follow up such cases immediately and take action against the Bank. This will at least prevent the Banks from further harassing the cyber crime victims by taking up appeals in higher courts to delay payment of compensation to the victims.

The second notable aspect of this judgement is that the Court has punished the accused with imprisonment of 15 days having found him guilty under a cognizable offence for which punishment could have been 3 years. Of course, in this case, perhaps even 15 days was avoidable since there was no “malicious intention” behind the negligence of the Cyber Cafe owner.

In the instant case it appears that the accused at some point of time has decided not to contest and perhaps plead guilty under the assumption that the offence is not serious enough to warrant any imprisonment. But even 15 days imprisonment is rather uncomfortable and deserves an appeal.

Let’s look at Section 67(C), reproduced below to analyze why an appeal is deserved.

Sec : 67 C: Preservation and Retention of information by intermediaries
(1) Intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe.

(2) Any intermediary who intentionally or knowingly contravenes the provisions of sub section (1) shall be punished with an imprisonment for a term which may extend to three years and shall also be liable to fine.

The condition precedent to applying this section is that there should be an “Intentional” and “Knowing” failure to maintain “Such information as may be (Ed: might have been) prescribed by the Central Government.

There are many sections in ITA 2008 which use the word “Appropriate Government”. However, this section uses the word “Central Government” specifically and hence does not apply to the non compliance of any state laws including the Cyber Cafe regulations under the State Police Act.

Has the Central Government prescribed that a Cyber Cafe needs to preserve and retain information such as the “identity of the users of cyber cafe”? is therefore the main question which the Court ought to have examined.

If there were any regulations for Cyber Cafes in Maharashtra prior to 27th October 2009 when the ITA 2008 became effective and 11th April 2011 when the “Information Technology (Guidelines for Cyber Cafe) Rules, 2011. ” was notified, then they would have to be re notified by making reference to the ITA 2008 which defined Cyber Cafes and the above rules of April 2011. Any earlier notifications should be deemed to have lapsed after ITA 2008 was notified in 2009.

Though the Cyber Cafe rules of 2011 empowers the State Government to make further rules, and also includes requirements regarding the identity verification of the user,  the most important direction of this notification was for the State Governments to form a regulatory authority for Cyber Cafe regulations which shall introduce registration formalities and notify the agency to whom the log record information etc should be submitted.

The undersigned has submitted detailed suggestions for Cyber Cafe regulations under ITA 2008 to Karnataka Government and also developed Cyber Law Compliance requirements for Cyber Cafes to avoid the non compliance of the ITA 2008. However, like many other suggestions provided by the undersigned over the last several years, neither the Government nor the Cyber Cafes were interested in implementing the suggestions. Though there are several softwares available to cyber cafes to manage ITA 2008 compliance some of which have been even recommended by Police in several States, the State Governments have not created the back end systems to receive data created from these softwares and therefore the use of such software has not gained popularity.

I would have very much appreciated if the Pune Court had devoted some attention on what the Government needs to do to improve compliance rather than putting the Cyber Cafe owner in imprisonment for 15 days. It is unfortunate that representative bodies such as the Cyber Cafe Associations of India or Maharashtra failed to implead in the suit and protect the Cyber Cafe owner.

I wish at least now, public spirited lawyers intervene and appeal against the part of the judgement which sentences the  Cyber Cafe owner to imprisonment. Financial penalty is an adequate penalty in such cases where there is no malicious intention and there is negligence of the authorities as well in not regulating the system.

If not maintaining a visitor’s register is a punishable offence and a cause of action under ITA 2008, not prescribing the nature and format of record keeping by the Cyber Cafes is a negligence on the part of the State Government also. (P.S: Whether the Cyber Cafe rules of 2011 are practical or excessive is a separate debate which the undersigned has presented in the past and hence not repeated here.)

Naavi

Android App available on Google App Store

Android App available on Google App Store

Cyber Law Guru is a mobile App meant to be a channel through which the public an raise any question on Cyber Law to be answered by experts. It is part of the Cyber Law Education initiative of Naavi.

We are glad to inform that Advocate Prashant Mali who is an Internationally renowned Cyber Law & Cyber Security Expert,  Author & a well known practicing advocate in the country has joined the expert panel associated with the app and will be contributing his valuable views on any questions raised by a member of public.

Prashant is Masters in Computer Science, Masters in Law with certification in Computer Forensics Professional & prior working experience in the field of IT Security & Law for more than 20 Yrs.

He has authored 5 books on Cyber Crimes & Cyber Laws. He is a legal adviser to Govt Companies ,MNC’s, Corporates and represents them in various courts. His research interest are in Cyber warfare, Cyber war, Cyber weapon.

Mr Prashant Mali is the president of Cyber Law Consulting, a  premier Law firm involved in Litigation and Consulting matters related to Cyber Law, Privacy Law, Economic Offences, Telecom, Trade Mark & Copyrights, Media and Entertainment, EContracts’, Software Piracy and also provides Expert Legal Opinion and Legal Compliance to Organizations & Individuals.

He has been awarded as “Cyber Security & Cyber Law Lawyer of The Year:2014” by Indian National Bar Association .

We heartily welcome Prashant Mali to the expert panel of Cyber Law Guru.

Naavi

Ed: The panel has now been revamped and Naavi handles all the queries….Naavi