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The application of information technology has reached almost all sectors of our lives. However, regulation of this sector is necessary due to the risks posed to financial and commercial transactions, national security systems, banking and communication networks and all other sectors and individual availing of the benefits of the internet and the Information Highway. The rapid development of information and communication technologies has revolutionized business practices and brought in an era of ‘electronic commerce’ which needs legal protection and safeguards to prevent abuse of technology. Some of the most important issues that arise with respect to information technology laws in India are as follows
The Act aims to facilitate the development of a safe environment for growth of electronic commerce by creating a body of law governing electronic contracting, security and integrity of electronic transactions, the use of digital signatures and other incidental issues. The Act is based on the Model Law on Electronic Commerce with Guide to Enactment 1996 created by the United National Commission on International Trade Law (UNCITRAL) to offer national legislators a set of internationally acceptable rules as to how best to overcome legal obstacles and encourage e-commerce. The Model Law has informed the debate on electronic commerce legislation as it contains rules and norms that validate and recognize electronic contracts, sets default rules for contract formation, defines the characteristics of valid electronic signatures and writing and contains rules that support admission of computer evidence in courts. The Act also contains elements of Singapore’s Electronic Transactions Act, 1998.
The IT Act’s primary purpose is to ensure that information is not denied legal validity or effect solely by virtue of it being in electronic and not paper form by authorizing the use of Electronic Data interchange, electronic records and electronic signatures. This is achieved by replacing paper instruments such as records, documents, signatures etc with their electronic counterparts.
The Act also deals with issues such as privacy, fraud, data protection, hacking, theft of electronic records and other offences in contravention of it’s provisions.
This is one of the most controversial issue in the area of IT laws because of the nature of internet transactions and website ownership in different countries vis a vis applicability of domestic laws. The IT Act extends to the whole of India and also extra-territorial jurisdiction in that it covers offences or contraventions of its provisions committed outside the territory of India by any person under Section 1. With respect to nationality of offenders, that is considered irrelevant so long as the act or contravention involves a computer, computer system or computer network located in India (Section 75).
Electronic Contracts and Digital Signatures
The enactment of the Information Technology Act has rendered legitimacy to electronic documents thereby facilitating the formation of contracts using electronic medium. The sender of any electronic message is bound in law by his words. Digital Signatures are considered to be ‘functional equivalents’ of paper-based signatures and a valid electronic signature has the characteristics of unique identification of a person.
Information Technology Offences
The Information Technology Act has brought in certain amendments to the Indian Penal Code so as to bring within its scope offences committed electronically. Further, it prohibits certain conduct or act under Chapter XI. Some broad offences are as follows :
Privacy Violations – This includes the act of knowingly communicating to the public, the image of a private area of a person without his/her consent. Punishment for such offence includes a fine of upto two lakhs and/or imprisonment upto two years under Section 66E.
Identity Theft – This offence is said to have been committed when fraudulent or dishonest use is made of an electronic signature or identification devices unique to a person. Impersonation is considered a serious offence under the IT Act under Section 66C.
Obscenity – is said to have occurred when any material that appeals to the prurient or lascivious interests is published or transmitted in electronic form, the effect of which is to deprave and corrupt persons likely to have access to such material. Prohibited under Section 66F which also prescribes punishment in the form of imprisonment upto five years and a fine of upto ten lakhs. The publication of sexually explicit acts is also prohibited under Section 67A with the exception of the material being justified for public good or preserving heritage or religious identity.
Cyber Terrorism – With the increasing number of terrorist attacks, accessing a computer resource by an unauthorized person with the intent of obtaining information that is restricted for reasons of state security, national interest, preserving foreign relations etc and using such data to cause injury to the nation is considered an act of terrorism and is prohibited under the IT Act.
Other issues that are of relevance are the various ways in which the Internet is abused by persons. ‘Phishing’ is a form of internet fraud whereby a person misrepresents his/her association with a legitimate association such as a bank, insurance company etc in order to have access to personal information and personal gain.
The high incidence of ‘Cyberstalking’ is another evil perpetrated by the internet. Cyberstalking or on-line harassment are situations where a stalker takes advantage of the ease of communication and access to personal information over the internet and the assured anonymity of the crime.
Domain name disputes have also arisen before Courts all over the world. Commonly known as ‘Cybersquatting’ , it involves the use of a domain name by a person with no trademark or any other rights over that name. The most common method is to make profits off a well established company name by slightly mis-spelling the name on the Domain so that search results will direct users to the ‘pirated’ website.