Cyber Jurisprudence at Indian and International Level

The advent of the internet has contributed to the human goal of attaining the status of techno-zenith. This Virtual platform has its own role to play in the daily life of every single man in this digital era. The status quo is that man and technology have become inseparable units. Despite the cause of aiding the human community, technology has also been termed as a threatening factor for the privacy and safety of user’s data.

One of the significant roles of this cyberspace is to connect people all around the world and to disseminate productive information about the current state of affairs. But this cyberspace has been used by cyber crooks as a tool to commit fraudulent activities and crimes. Here comes the need for cyber laws and regulations. However, these kinds of new-age crimes are congenial with traditional crimes like forgery, theft, fraud, mischief, and defamation. The prevailing practice of committing crimes in cyberspace has given birth to the concept of cybercrime. For preventing these kinds of misuse of cyber platforms, the government has taken various measures to control it. This article deals with the Indian and international approaches to cybercrimes with relevant provisions of law.

Introduction

The functionalistic progression of society has been achieved by the advancement in all aspects of technology. This era was known to be an artificial intelligence age; the cyber world is much bigger and wider than any other dimension of communication. As it is open to all, anyone can participate. Despite connecting people and aiding by spreading novel information across boundaries, it has become a tool to commit crimes. Any illegal activities that take place through computers or computer related network are called cyber crimes. Cybercrimes as well as the prevention of cybercrimes require technical know-how. It amounts to cybercrime, whether it is a simple dispute in a chat room or monetary loss caused by cyber fraud. 

The broad range of cybercrimes can be divided into two categories for better understanding. Type one is a single event of cybercrime, which may be phishing, virus attack, e-commerce fraud, and identity theft. Type two cybercrimes are pretty serious in nature; it involves repeated interaction with the target, for example, cyberstalking, harassment, blackmail, and so on. It is an on-going series of events forming a chain of crimes. 

The term jurisprudence is derived from the Latin words “jus” and “prudence”. The common English meaning is “knowledge of the law”. Basically, cyber jurisprudence is the study of cyber jurisdiction. 

General definitions

Cyberspace: Cyberspace is an intangible dimension of a virtual platform, where communication occurs through the medium of computers via the internet.

Cyber community or cyber society: Ab initio, cyber society is the replica of real society; where the group of individuals shares the cyber platform and since it is easily accessible to the entire community of users. They disseminate and share ideas via the internet. The word cyber community or cyber society can merely refer to internet users.

Cybercrime: committing unlawful deeds wherein the computers are either a tool or a target or both. Due to the exponential development of information technology it has become a vanishing point of law. Since it is a vacuum and has no boundaries, it created and continues to create trouble in all aspects of the law. Indeed, to obviate the cybercrimes, the requisite cyber law is framed.

Law and Jurisprudence

To define cyber jurisprudence, it is a prerequisite to be aware of the definition of jurisprudence in general. “It is a method of legal study that concentrates on the logical structure of law, the meanings and uses of its concepts, and the formal terms and modes of its operation” according to Black’s law dictionary. 

It is understandable that jurisprudence is somewhat related to theory and philosophical perspectives of law. It also studies the concepts of law and how the law has been the instrument of social change or vice versa. Jurisprudence refers to both philosophies of law or legal theory and case laws. 

Thus, law is something that can be interpreted in many ways. Savigny, the father of the historical school of law, considered a peculiar system of law was a reflection of the “spirit of the people”. He called it volksgiest. On the other end of the spectrum, John Austin, the Father of the positive or analytical school of law, considered the law as the command of the sovereign. The other perception of law is that it is the rightness (Ethics) of will and never be enforced by external legislations. As a contradiction, others say that law is the science of the totality of rules for which external legislation is possible (Nomology). 

By reading various definitions of law one should not conclude that law is something vast and undefined since it is perceptual in nature. These notions of law, which have been approved by the majority of the society, form a principle. The set of such principles compile the jurisprudence. Hence, jurisprudence is a set of principles accepted by a majority of the given society. The philosophy of law or theory of law does not study the characteristics of law in a particular country but studies the law in general, that is, those attributions that are common to all legal systems.

Can the criminal law jurisprudence be applied to cyber law? 

The notion of jurisprudence can be applied to almost every facet of law. Before going deeper into cyber jurisprudence, it is essential to study how the notion of jurisprudence has been applied to criminal law. As far as criminal law is concerned, there are many ways to approach it with the theory of law. The American legal researcher Larry A Alexander chose to approach it with the justifiable legal punishments. He approached the same as; if anyone’s deeds are likely to affect others’ well-being or his acts are against the common good of the public then he could be sanctioned by the law of that land. 

The other theorists approach punishment as retribution, prevention, and reformation. So even the existing criminal law jurisprudence can be applied to cybercrimes as both are concerned about the rights of society. Whether it is the cyber or the physical society, if someone breaks the law, then he could be held liable, and if something is committed against society, it will be termed as a crime. 

But the questions likely to arise are, how far the existing criminal law can be applied to cybercrimes? Whether or not a deed committed in cyberspace will be considered as an act against a society? Probably, that could be applied, but cyberspace needs special legislation to regulate, as it is dynamic and intangible. Touching cyberspace requires unique laws when unique disputes arise. Its impact extends from inconvenience to death. If cybercrime exceeds to make an impact on the victim’s real-life then the criminal law should also be considered.

Cyber jurisprudence

In general, jurisprudence is the concept of law, an analysis of how social norms and changes have contributed to the development of law. Thus, cyber jurisprudence might be defined as law directly related to cybercrimes. In the words of Savigny, “law grows with the growth and strength with the strength of people and its standard of excellence will generally found at any given period to be complete harmony with the prevailing ideas of the best class of citizens”. Thus if the world is progressing towards digitalization, then the law should also adapt to the same. Since nurturing of society is the ultimate goal of jurisprudence, no matter whether it is virtual or physical society. Hence the cyber jurisprudence is the legal study of the virtual infrastructure of cyberspace, the meaning and root of the concept, nature of its pattern, meaning, and modes of operations of cyber law.

Need for cyber laws

The need for the law comes when the conflict arises in a society; the so-called “conflict” arises with the difference of opinion in the shared ideas. Thus disputes and confrontation of ideas in the society have led to the promulgation of the law. Since cyberspace is considered to be a medium of communication with no jurisdictional boundaries and being a vast platform, which is open to participation by all. When disputes arise in cyberspace, cyber laws are needed to restore order in the cyber society.

Contemporary society encounters several cybercrimes on  a daily basis. Electronic information has become the primary object of cybercrime as in this prevailing digital era everything has become computerized non-physical data. Online transactions of money, virtual banking coins, E-commerce, and even storage of intellectual properties in computers has led to cyber theft. Cyber invasion is a kind of cybercrime, which has been reported as a crime committed against a country. Someone invades cyberspace to unshackle the foundation of the most secured nations to hack the available information stored in a remote computer, to destroy, copy, to defraud the same, to the extent of making the country undergo an economic crisis.

Thus, there is no doubt that, whether it is an individual or a country both are vulnerable to cybercrimes.  To face this divergent issue, which is not the physical world, where we can use penal provision to punish the offenders the government has implemented cyber laws to obviate the misuse of information technology.

Indian cyber law

“Legal order must be flexible as well as stable. Law must be overhauled continuously and refitted continually to the change in social life which it is to govern”  

Roscoe Pound

According to Roscoe Pound, the law should change in accordance with social change. The misuse of cyberspace has paved the way for a gamut of new age crimes. The Indian parliament went about legislating the Information and Technology Act, 2000, exclusively for addressing cybercrimes. This Act came into force on October 17, 2000, and an amendment was made in 2008. It penalizes criminal activities taking place in cyberspace and also regulates such activities that may violate the rights of the cyber community.

Cybercrimes could be categorized into two,

  1. Crimes committed against the computer (target of crime) – the destruction of the available information in a computer by hacking, virus attack, cyberpunk, Trojan horse, and so on.
  2. When committed cybercrimes affect the real life of the users (computer a tool of crime) – cyber violence, cyberbullying, financial losses, loss of intellectual property, using cyberspace as a medium of communication for committing murder, fraud, or terrorist attacks.

Classification of cybercrimes

  1. Crimes against individuals – a crime that is likely to affect an individual life. For example cyber morphing, child pornography, cyberstalking, emails spoofing, cyber defamation, phishing, etc.
  2. Crimes against the government– malicious invasion of cyberspace by taking advantage of the existing flaws in the website maintained by the government. Example: cyber terrorism, cyber espionage, hacking government websites with the intention of trespassing, and stealing the secured data of a nation.
  3. Crimes against property – it is primarily a crime against all forms of property. Illegal possession of someone’s property through the mean of technical invasion into the victim’s cyberspace. Example: data theft or manipulation of data, bank or E-commerce fraud, cyber forgery, trogon horse attacks, virus or worm attacks, data diddling, copyright infringement, etc.

IT Act is the mother legislation for regulating the use of computers, computer networks, and data in the form of e-files. This legislation concentrates on varied aspects pertaining to authentication, digital signature, and also liabilities of network providers. This Act compiles XIII chapters’ namely electronic governance, attribution, acknowledgment, and dispatch of electronic records, penalties, adjudications, offences, and so on. In the preamble of the Act, it is stated that it aims to provide legal recognition for online transactions (E-commerce) that involve alternatives to physical communications. Legitimization of non-paper based storage of information and data. It aims at facilitating the electronic filing of a document with the government agencies. The amendment which was made in 2008 added Section 66A (penalization of sending offensive messages) and Section 69 (government power to block websites). It also introduced penalties for child porn, cyber terrorism, and voyeurism. The strict punishment is available under the IT Act for cyber crimes, which may extend to 10 years of maximum imprisonment and up to 1 crore INR as fine.

Notable Cyber offences and penalties under the IT Act:

  • Section 65 – tampering with computer source documents

When a person intentionally destroys, alters, or conceals any computer source code, which is required to be maintained under law. 

Punishment: Three years imprisonment, or a fine of 2 lakh INR or both.

  • Section 66- using the password of another person

If any person fraudulently uses the passwords, digital signature, or any unique identity of another person

Punishment:  Three years imprisonment or/and fine of 1 lakh INR.

  • Section 66D- cheating using computer resource

Punishment: Three years imprisonment or/and fine of 1 lakh INR.

  • Section 66E- Publishing private images of others

Punishment: Three years imprisonment or a fine of 2 lakh INR or both.

  • Section 66F-Acts of cyber terrorism

Punishment: life imprisonment and non-bailable.

  • Section 67- publishing or transmitting obscene material in electronic form

Punishment: 1st offence- 3 years, subsequent offence 5years with fine up to 10 lakh.

  • Section 69- government power to block a website in concern with the integrity and sovereignty of India

Punishment: failure to comply with the direction to block any website may liable for imprisonment for 7 years with a fine. 

  • Section 72- the penalty for breach of privacy and confidentiality

Punishment: 2 years imprisonment and/or fine of 1 lakh INR.

Cyber laws at the international level

Cybersecurity laws and regulations in the United States are said to be the most effective and robust in the world. The Consumer Protection Act of 2017, aimed at securing the privacy of the user and to prevent data theft. This is applicable to all the institutions or organizations, that are indulged in the collection and usage of the user’s personal information. Generally, the penalty associated with the misusage of consumer’s sensitive information will not exceed 5 million dollars. But, if the same was accounted for as international misuse then an additional 5 million dollars will be imposed. Apart from this, there are some Acts that were introduced in the US for enhancing the common goal of cybersecurity. 

Cybersecurity Information-sharing Act (CISA), Cyber Enhancement Act of 2014, Federal Exchange Data Breach Notification Act of 2015, National Cybersecurity Protection Advancement Act of 2015. These are all recent amendment Acts brought up in the existing Regulations. These Acts mandate healthcare organizations, financial institutions, and federal companies to prevent their data and secure their consumer’s information as well. Their primary aim is to spread awareness about cybersecurity and data storage.

In the UK the Computer Misuse Act of 1990 is the main and mother legislation related to the attacks against computers. However, it does not expressly define what a computer is. In the case of   DPP v McKeown and, DPP v Jones [1997] 2 Cr App R 155 HL a computer was defined as a “device storing, processing, and retrieving information.” Thus it is said to be applicable for laptops, personal tablets, and mobile phones in the same way as traditional PCs and desktops. This Act penalizes the cyber offences of hacking, denial of services (DoS), and unauthorized invasion into computer data or programs with the intention to cause an attack on national cyberinfrastructure. 

The Data Protection Act 2018 penalizes cyber-related offences like cyber trespass, leaking or selling the victim’s personal data without consent, and so on. The cyber piracy of intellectual property is punishable under the Copyright Design and Patent Act 1988. The Malicious Communication Act 1988 and Communication Act 2003 make it an offence for a person who sends obscene or indecent messages via a “public electronic communication network”. The Obscene Publication (Amendment) Act, 1959, deals with the storage and sharing of such porn related stuff.

Conclusion

While looking at cyber laws, no matter if it is Indian or global, it is evident that the government is working to reduce and eradicate this new age crime. But it is not an easy task to be performed. We are the generation that has encountered lots of social changes and also divergent techno-hypes. Despite the enactment and regulation of cyber laws, the government should concentrate on its duty to create awareness among internet users. It is always better to prevent in spite of finding a solution to the problems. As this cyber world is visualizing a new dimension of lifestyle, which paved the way for cyber interactions, it is increasing among people. The subject matter of law is individual, when that individual’s rights get infringed, the law comes into action. Whether it is physical space or cyberspace, no one should fall a victim to any sort of crime. If someone fell so, Ubi jus ibi remidium- when there is a right there is a remedy, but the available remedies cannot compensate a person’s mental agony or physical disabilities due to the crime caused. Hence prevention is better than cure and more amendments should be made if required.

Frequently asked questions (FAQ)

  1. What is cyberspace?
  2. Are law and jurisprudence the same?
  3. What is cyber jurisprudence?
  4. What are the measures taken by the government to prevent cybersociety?
  5. Whether the existing Indian cyber laws are primitive when compared to the US or the UK cyber laws?
  6. What are all the new sections introduced in the Information Technology (Amendment) Act, 2008?

References

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