Cyberspace and CPC

The modern thief can easily steal more with a computer than with the gun. Today’s generation terrorist may be able to do more damages with a keyboard than with a bomb. As our Prime Minister “Narendra Modi” talks about digitalisation in India and security concerns in our country. We are the bread of geeks who worked 24*7 on computers. In 1987 aura world’s first personal computer malware was designed and start infecting the world like never before, the virus name was “Barin Dot-A”. It was designed by two brothers from Pakistan and there were so confident that if you try to open the source code of the malware you can see the address and the phone number, so that was the first computer malware. In current times, more organized criminal gangs were working 24*7 to get your bank account data and personal face-book chat which is quite running now. We have entered into digital 2.0 aura were 5 to 6 years back, the internet was for us just visit You-Tube, Google, etc. Now moreover, in today’s world, the technology and internet we are using are more connected to finance or money.

Introduction

We live in a digitalized world, but before this, we are human species can easily communicate to one and another in such speed and ease. The internet has a much related physical barrier in a large one i.e. Text, Talk, and type anywhere and anytime. This modern digitalized world where communication crosses time and space has become cyberspace. The word exactly means “Cyberspace” is a non-physical environment created by join computers interoperating on networks. In cyberspace, the interaction of the computer operator is similar to the real world; however, cyberspace interaction does not require any physical movement beyond typing. Information can be exchanged in real-time or delayed time or delayed time, and people can shop, research, explore, play, share, and play. The internet forms the largest cyberspace in the environment has many sub-environment in it. These include the “World Wide Web”, newsgroups, and internets. The web is the most popular destination where you connect with anyone through which he/she can also share personal information, data pictures and movies, etc. Today, however, many people including strategies, technologies, leaders, industry, security professionals, and the military use it. We use cyberspace to describe the domain of the worldwide technology environment.

Meaning of Cyberspace

John Locke, talks about the independence of cyberspace. The first cyberspace appeared in the year 1980’s, was first introduced in 1982 by William Gibson in his short story “Burning Chrome” and later in his 1984 novel named Necromancer. In a couple of years, the word becomes identified or known with online computer networks. Cyberspace has been defined by three different ways:

  1. A world of information through the internet.
  2. By extension the internet as a whole/science fiction
  3. A three-dimension representation of virtual space in a computer network.

Cyberspace and Cyber Security

It seems difficult to lead a life without the internet. In 1969, the United States defense department works with several universities to connect a set of commuters to enact a world called “Arpanet”. Allowing the government and researches’ to set scientific information back in forth across the country. These first users mostly new in trust with each other, but over the year, with the advent of persons and computers, individuals outside the research community started joining the network. In 1991 tim burner introduced the World Wide Web, a system of connecting files to each other across the internet. Allow users to easily explore a piece of vast information is well known as Cyberspace.  The web continued to grow financially, the defining feature of modern life where any users can interact with any other users anywhere almost instantly. With the help of internet business, the government and all types of organizations can gather more information to conduct more commerce. But these enormous benefits come with enormous challenges, the internet was designed by the community that trusts its member to act in good faith. Yet, this important tool is no longer in the sole hands of friendly scientists. However, Four billion people have internet access around the world. The connections that make our life easy also expose the world of danger. Many governments are seeking teen cyberspace by addressing three major policy Issues.

ONLINE RIGHT CYBER SECURITY DATA PRIVACY

  1. Online Rights: Online rights are mainly human rights in the web area. A citizen enjoys their rights and duties in the physical world, hereby digital citizen has a right to enjoy the online word but keep in mind their certain rights and responsibility. It must note that the citizens required to be fully aware that how they interact in the digitalized world.
  2. Cybersecurity: Cybersecurity is given protection against the threats that link with cyberspace. We upload tones of personal information to the internet and photos’ to credit card no. and companies and governments keep intellectual property and secret information online too. But the internet connects all of us and some people use to access our information this is called hacking. Hackers often steal banking information or hold a computer system for financial gain. However, hacking is just a criminal enterprise. Hackers can also work on behalf of the government to conduct cybercrimes. Stealing other countries sensitive information for accomplishing the fraudulent economic crimes. Sometimes, the government can use the stolen information as a political one.
  3. Data Privacy: it is a great invention where a person can share the information thoroughly online. You sometimes think that you may care about the information that you have shared online. Now they are some basic websites that often allow them to collect data in terms of Age, Email, Location, activities, and much more. The companies are binding on that website and sell that information, and creates targeted ads that followers around the internet. On the other hand, if such information is stolen from such companies have little obligation to inform us. Data Privacy applicants are trying to protect our information online. As there is no global agreement that how should be done. Controlling digital information is shared not just a concern for individuals. It also focuses on certain countries that don’t value online rights. 

Cyber Crime: Cybercrime encompasses (surround) any criminal act done with the help of a computer or any other electronic device with the help of the internet is cybercrime.

Types of Cyber Crime

Violent Cyber Crime                                   Non- Violent Cyber Crime

Violent Cyber Crime: it is also called as potential violence; this cyber crime leads to physical risk to victims. Violent cyber crime includes:

  1. Cyber Terrorism: The expression “cyber terrorism” is a complex concept and derived from two important terms i.e. cyber refers to cyberspace and “terrorism”. These crimes occur against individuals, organizations, businesses, and against the government itself. Terrorist people used the cyberspace or can use it to make the communication accessible. Cyber Terrorism is a kind of criminal activity where a criminal who uses internet and computer technology especially to cause fear and disruption. Some of cyber-terrorist’s spread computer virus.

Types of Cyber Terrorism

  1. Information Theft
  2. Credit and Card Number theft
  3. Hacking
  4. Electronic Cash
  • Child pornography: – Child pornography is an important concern in India. A parliamentary House headed by Rajya Sabah committee member has suggested making a multi-pronged strategy to tackle the issue of child pornography.

Legal Provision of Child Pornography

  • As per SECTION 14 of the POCSO Act, 2012; Any person who uses child for the pornographic purposes shall be punished for a term which may be extended to five years and shall also be liable to pay fine, both.
  • The SECTION 67B of the Information technology Act 2000; makes the child pornography issue is illegal in India. But, till now neither SECTION 67 of the IT Act, 2000 and SECTION 293 of IPC defines “Child Pornography”
  • Cyber Stalking: Stalking has emerged as a socio-legal problem of the current time, which has resulted in its incorporation as a criminal offense in the Indian Laws. The expression “stalking” generally refers to following with the intent to harass and cause inconvenience to him/her. E.g. suppose you are monitors someone online activity that’s called cyber stalking; or you tell someone’s browsing history of other people.

Ingredients of Cyber Stalking

  • Behaviors may be reflected
  • By a physical act or
  • Through an electronic means
  • A repeated and unwanted Harassing behavior

STALKING               

The act May cause Mental and fear to the individual

 A Direct Intrusion into the Privacy of an individual

While coming to cyber stalking as an offense, it is an aggravated form of harassment that takes place on cyberspace causing serious threat and endanger the life of the individual if it is not addressed appropriately on time. The recent threat to the cyber community irrespective of their age or any other social data, the users belong to.

In fact, it is very surprising to know despite repetition on such kinds of activities on cyberspace. Multiple cases go unreported either of lack awareness or absence of knowledge of the law.

Legal Provision on Cyber Stalking:- The offense of Cyber stalking has not emerged into the IT Act, when it came into force in  2000 unless the act involved publication or transmission of obscene material within the meaning of SECTION 67 of the IT Act, 2000.

Besides of this, SECTION 509 of the Indian Penal code, partially deals with the offense according to the which, uttering of any word, making of any sound or gesture or object to be heard or seen by women, or intrusion upon the privacy of such women shall be punished with imprisonment up to 3 years and a fine too. As SECTION 509 of IPC, 1860 defines this act as one of the privacy. SECTION 72 of IT, ACT 2000 was also brought in to the effect, while dealing with the matters of cyber stalking to an extent.

Over time, when the IT Act has further incorporated a new provision of SECTION 66A in 2008 amended in of IT ACT, 2000. It mainly deals with the punishment for sending offensive messages through communications, services, etc. E-mail communication amounting to extortion may be dealt with under SECTION 43, 66, 66C of the IT ACT, 2000.

However in recent times, SECTION 66A Of IT ACT, 2000 was struck down by the Hon’ble Supreme Court of India.

Therefore, if we analyze the SECTION 354 D of IPC, 1860 denotes that any man who monitors’ the use by women through the internet, email or any other form of electronic communication, commits the offense of stalking.

  • Cyber Harassment: In many offensive acts on cyberspace, online abuse is a common phenomenon, which has directly or indirectly affected cyberspace users of diverse age groups leading to different forms of harassment. To understand the te4rms cyber harassment, we may refer to various definitions that were found in legal dictionaries as well as laws. Cyber may be denied as unsolicited, repeated, or hostile behaviors by persons through cyberspace with the intent to terrify, humiliate, intimidate threatens, harass or stalk someone else.

Forms of Cyber Harassment

Any harassment which is caused through electronic media such as social networking sites, chat room, e-mail, etc. is also considered to have a similar impact as the traditional effluences of harassment.

Such cyber harassment may include Cyber stalking; cyber defamation and cyber bullying etc.

  • The Vulnerability of Cyberspace: While talking about the serious increasing rate of

Cybercrime, the users ,unfortunately, fail to recognize there vulnerability they expose to while browsing the internet, uploading posts on social networking sites or storing information on a computer. At the same time arbitrator used the cyberspace as a platform for involving in copious criminal activities against the users.

Non- Violent Cyber Crime: As per the latest survey of the National Crime Records Bureau (NCRB) data, a total number of 27,248 cases of cybercrime registered in India in 2019.

  1. Cyber theft: Cyber theft is one of the most common problems faced by countries across the globe, which refers that theft carried out through computer sources or the internet. Cyber theft involves Identity theft, theft of information, password theft, internet time theft, etc.
  2. Cyber fraud: Cyber fraud is one of the most common types of cybercrime. It generally means stealing a person’s information like banking credentials through the various phishing sites and withdrawing money from the aggrieved account. Online lottery scams are also unruly these days; one such instance is the Nigerian lottery scams.
  3. Section 66C provides for punishment for Identity theft: Whosoever, dishonestly or fraudulently makescyber use of the E-signature, password or any other unique identification feature of another person, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine of Rs.1 Lakh.
  4. Section 66 D, IT Act 2000 on the other hand was inserted to punish cheating by impersonation using computer resources.
  5. Cyber Defamation: – In Online or cyber defamation includes damaging someone’s reputation by using a computer or the internet source. Cyber defamation can be done by writing or texting a derogatory statement about a person on social networking sites, posting vulgar and obscene videos or pictures, sending outrageous E-mail to the victim’s friends, etc.
  6. Cyber trespass: The expression trespass generally refers to enter into someone’s property without his/her prior permission. It is ordinarily deemed a civil wrong. If a person is committed trespass with the criminal intention it is called criminal trespass. The trespass actions are stranded. To protect an owner’s control over the property. The concept of trespass is mainly applicable in cases of the cyber world and may be defined as Cyber Trespass. The act of hackers hacking someone’s account is of civil nature, but if the intention is to damage or harm the system is proved, the liability is arising from penal nature. Trespass can be classified into 2 type’s i.e. Trespass to a person and trespass to property.
  7. Section 43 IT, Act Any person without prior permission of the owner damages to the property of owner such as a computer, computer system, etc. in such cases  he/she shall be liable to pay compensation to the person so affected.
  • Destructive cybercrime:

SECTION 66B of IT Act, 2000 describe Punishment to those who have dishonestly or fraudulently received communication device or stolen a computer resource shall be Imprisonment for a term which may extend to three years or with fine which may extend to rupees one Lakh or with both.

Critically Analysis the Jurisdiction of Cyberspace in Civil Law

Now, let us first understand the concept of jurisdiction; the expression of jurisdiction is the combination of “Juris” means “Law” and “dicere” means “to speak”. It generally means that the authority granted to a legal body to make a pronouncement on legal matters and in the administration of justice. So, it is the jurisdiction of the state or the jurisdiction of the court is an essential issue.

The three incumbent kinds of Jurisdiction are as follows:-

                                                      Prescriptive or Legislative Jurisdiction

JURISDICTION                         Enforcement Jurisdiction

                                                           Adjudicative or Judicial Jurisdiction

Prescriptive jurisdiction: it is also known as legislative jurisdiction. it is the jurisdiction power of the state to legislates the particular law relating to a matter. For instance, if you take the case of India you will find that centre has a legislation power as well as the state has- a legislation power so center legislates within their domain of power and same for the state so it is the power of the state however and they can make any kind of law relating to any national person or any citizen of this country wherever they reside, it can be within India or outside India. The Information technology act is a brilliant example of Legislative made laws.

Enforcement Jurisdiction: Enforcement jurisdiction means the power of the state to enforce a particular law. It has been very clear that the laws are enforced by the state agencies and every agency has its enforcement jurisdiction within that they enforced the law.

Adjudicative and Jurisdictional It is the jurisdiction of the court to try or to adjudicate a matter. There can be possible chances where the jurisdiction of the court must be read that matter or maybe not. 

Since the development of artificial intelligence, there has been an extensive relapse in the E-transactions system. These transactions can amount to a situation such as “Cyber Torts”. The Information Technology Act was enacted in 2000 to provide a legal framework for such online transactions. Its goal to upgrade the outdated laws to deal with the rapid development of cyber technology and issues related to cyber laws. it is mandatory to examine the jurisdiction of cyber laws.

The adjudicating officer has conferred the jurisdiction if the matter is below than Rs. 5 cores. The subject-matter of jurisdiction has also lies upon the adjudicating officer. It has already stated that the pecuniary jurisdiction is limited to Rs. 5 cores.

However, territorial jurisdiction is not specified in the Information technology Act, 2000. Thus, this Act has a well-defined adjudicating procedure yet, but it fails to take cognizance in the most inevitable part. The IT laws are borderless and scattered across territories of any jurisdiction. As IT laws is the specific law, and it fails to determine the boundaries. For seeking help, we must have to consider the general law i.e. the CPC 1908. It has generally seen in India, the civil jurisdiction lies when the wrongful act is done. It is based on the legal maxim i.e. “lex loci deliciti”While in case of property suits, it is based on the maxim- lex situs or law of physical location.

With the provision mentioned above, it is specified that the foreign decrees are binding and, in case a person or corporate has specifically accepted the foreign jurisdiction then such corporate or individuals bound by the decision of foreign jurisdiction. Thus, any online transaction can be taken cognizance across the country. The foreign decree can be passed against the Indian defendant is probably not enforceable based on the procedure laid in section 13 of CPC. It must have noted that the aggrieved party can approach Indian courts to enforce the foreign decree performed under SECTION 44A CPC and can file a new suit based on the decision for its enforcement. While obtaining a decree from the foreign court, the aggrieved party avoids Indian evidence but they face a plethora of problems under section 13. So, it is possible for the foreign complainant can file the claim in India if the defendant resides in India. Since Internet transactions have a huge number of documentary evidence and such evidence would not amount to burdensome.

In the vice versa case, where the aggrieved party resides in India and the defendant resides in abroad jurisdiction, it can fall under the ambit of SECTION 19 of CPC. As per Section 19 of CPC permits for filing a suit for damages or wrong committed to the person or movable property. The suit can be filled at the jurisdiction of the residence or the place of business of the defendant or the place where the wrong was committed.

As per Section 20 of Code of Civil Procedure can be used to secure justice and make provision to tackle the issues of jurisdiction left out in the above sections. Section 45 of the CPC provides the execution of a decree passed by Indian courts in the foreign jurisdiction under certain circumstances. So, it would be helpful in transferring the execution of decree from Indian jurisdiction to a foreign jurisdiction.

It must be noted that any certified copy of the decree from any of the superior court or foreign court must be filed before the district court then such decree will assume only as if it were passed in India and the decree must be executed by the district court. Along with the certified copy, a certificate is also required to be filled which stipulates the extent to which the decree has been satisfied. According to SECTION 47 CPC regulates the procedure of filing the certified copy and the District Court may deny executing  the decision, if the execution falls under the ambit of exception (a) to (f) of SECTION 13. Hence, jurisdiction issues can be solved by invoking IT Act, 2000 along with the CPC.

Super Cassette Industries Ltd. v/s Myspace Inc. & another IA: The defendant had objected as to the court territorial jurisdiction to entertain the suit on the ground that the defendant is a foreign national and is carrying their business outside the jurisdiction of the USA and no part of the jurisdiction of this court.  In this case, my space was providing different kinds of songs on subscription to various subscribers who are in India or the different parts of the world. Therefore it has been further contended by the super cassette before the court that they have an economic loss due to this infringement. No court decided these based on section 62 of the Indian Copyright Act, the court held that sue on a foreign defendant, the foreigner must be resident and carry on business within the jurisdiction of the forum court. The only exception is if such party submits to the jurisdiction. However, the operation of these rules is not absolute and is subjected to the municipal law provides otherwise or override the Private International Law principles, then the municipal law will prevail.

 In Zippo Manufacturing v/s Zippo Dot Dom Inc: it bios known as sliding scale test. In this case, the court classified the website as massive interrupting and integral to the defendant business and helped that the pace of jurisdiction will be the place of an interactive website. The court for the first time recognized they are a different kind of website which is available; the passive website is only the website that only provides the information but does not interact with you. It provides some sorts of information and it makes it present in cyberspace.

Criminal Jurisdiction in Cyber Space Cases         

Cyberspace provides ample opportunity for the offender to create any kind of crimes in cyberspace which can have ramifications again in the cross border. If it is within the nation then we don’t have any kind of ambiguity and doubt that how the court entertain the jurisdiction, because the criminal Procedure Code deals with the Jurisdiction issues in case of Criminal Act- SECTION 177 to 188 of the code amply gives direction to this jurisdiction and the jurisdiction rule is where the offense has happened or where the activity of offense has happened that is the proper way to go to court for apply jurisdiction. This rule is framed for the simple reason that is the proper place where evidence can be collected and so that place should be a proper place of jurisdiction.

Therefore, it is a place of crime is important in the criminal case, if the crime is held within the territory of India but if it is started somewhere else, in some foreign countries. A question arises…. Whether the court can have jurisdiction for criminal nature or not?

Although the things happen within the territory of court, the court can even apply its jurisdiction but without the offender surrendering before the court, how justice can be done in that kind of case. Therefore it is important to know the kind of cases that facilitated the completion of justice and that are the concept of extradition with the other country.

Playboy Enterprises Inc. Chucleberry Publishing, 1996: In this case, the defended operated website from Italy. The Website is made accessible to users in the USA on the basis of subscribership. Then the defendant displays obscene photographs on the website. And, the defendant distributes such photographs to subscribers. Further petitioner brings the case in USA court, point to be noted here is that the defendant operated with the website from Italy. The court held that the defendant violated prohibited injunction for distributing such pictures in the US. The court ordered curtailment of access to the website in the US. However, outside the US, the website was accessible which means that the website was actually blocked in the US, but otherwise, the website is still accessible in non-USA countries.

Conclusion

In my open-ended conclusion, India not all the people are a victim of cybercrime, but they are doing things at their risk. With the advent of technology in today’s world just shrunk into the micro-level and hacked everyone’s life. Computers, internet and communication have substituted paper-based communication by electronic and digital communication. However, information collected in any electronic form has a plethora of benefits, it is cheaper, easier to retrieve, easier to store, and speedily to connect. As it has many advantages so definitely it could be misused by any of the people to achieve something for themselves or make harm others.

References

  1. Law Teacher. November 2013. Suits of a Civil Nature. Available from: https://www.lawteacher.net/free-law-essays/commercial-law/suits-of-a-civil-nature-commercial-law-essay.php?vref=1
  2. Playboy Enterprises Inc. Chucleberry Publishing, 1996
  3. (1959) AIR P&H 58.
  4. In Zippo Manufacturing v/s Zippo Dot Dom Inc
  5. Super Cassette Industries Ltd. v/s Myspace Inc. & another IA No. 15781/ 2008 7 IA no. 3085/ 2009.
  6. Harshad Chiman Lal Modi v. D.L.F. Universal Ltd.  (1921) AIR Cal 34
  7. Ibid, Section 66A of Information of Technology Act, 2000.
  8. Ibid, Section 43 of Information of Technology Act, 2000.
  9. Ibid Section 72 of IT Act, 2000
  10. Ibid Section 66 and 66C of the IT Ac, 2000.
  11. Ibid, 509 of the Indian Penal Code, 1860
  12. Section 43, the Information Technology Act, 2000, No. 21, Acts of Parliament, 2000.
  13. Section 9, Code of Civil Procedure, 1908, Act, No. 5, 1908.
  14. Section 19, Code of Civil Procedure, Act, No. 5, 1908.
  15. Section 20, Code of Civil Procedure, Act, No. 5, 1908.
  16. Section 45, Code of Civil Procedure, Act, No. 5, 1908.
  17. Ramauj, what is Jurisdiction? Ipleaders (2014), https://blog.ipleaders.in/what-is-jurisdiction/
  18. Vipul Vinod, Civil Adjudication in Cyber Law, 7 RMLNLUJ (2015) 142.
  19. International Journal of Scientific and engeneering, Volume 4, Issue 9, September 2013, Page no 68-71, ISSN 2229-5518.
  20. https://www.slideshare.net/bijayguyz/cyber-security-prt

Question

  1. Critically analyze the Jurisdiction of Cyberspace in CPC?
  2. Critically analyze the criminal jurisdiction of Cyber space with the relevant provisions?
  3. Detail analysis of Cyberspace and cyber security?
  4. Are Cyber Security threats increasing?
  5. What are the top 10 barriers in addressing cyber Crime?

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