CYBER TORT 2017

CYBER TORTS-AN Introduction

Cyber torts are the latest and perhaps the most complicated problem in the cyber world. Any
kind of criminal activity that uses a computer either as a target or a means for perpetuating
further crimes comes within the ambit of cyber tort.

A generalized definition of cyber tort may be “ unlawful acts wherein the computer is either a
tool or target or both”. The computer may be used as a tool in the following kinds of activity-
financial crimes, sale of illegal articles, pornography, online gambling, intellectual property
crime, e-mail spoofing, forgery, cyber defamation, cyber stalking. The computer may however
be target for unlawful acts in the following cases- unauthorized access to computers or
computer networks, theft of valuable information in the electronic form from the system, e-
mail bombing, logic bombs, Trojan attacks, internet time thefts, web jacking, theft of computer
system, physically damaging of the system.

Birth Of Internet Litigation

The Internet, which began as the U.S. Defense Department’s ARPANET, was designed
to link computer networks to various radio and satellite networks with all over the
world. The first judicial opinion to mention the Internet was United States v. Morris.

It was not until 1994 that any plaintiff prevailed in an Internet tort case. An
anthropologist was denied tenure at the University of West Australia in Rindos v.
Hardwick. Hardwick, posted a statement supporting the university’s decision and
accusing Rindos. Although an Australian court assessed this first damages award in an
Internet tort case. During the past decade, American tort law is beginning to evolve to
against online injuries.

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Reasons for occurrence of cyber tort

“The Concept of Law” says that ‘human beings are endangered so rule of law is
required to protect them’. Applying it to the cyberspace we can say that computers are
impuissant, so the rule of law is required to preserve and safeguard them against cyber
tort. The reasons for this susceptibility of computers are:-

1. The Capability to save the data in comparatively small space:- The computer has
unique characteristic of collecting and storing the data in a very small space. This
helps to remove or to obtain the information from either ways i.e. through physical
medium or through effective medium which makes it much more simple as compared
earlier.

2. Easy to access:-The problem to confront in guarding a computer system from

unauthorized access i.e. there is possibility of breach not only due to human error but
also due to some complex technology. By secretly implantation one can fool biometric
systems and break the firewalls to utilize to get past many security system.

3. Convolution of computer systems:-The computers work on various operating systems

and these operating systems are composed of millions of logical ciphers. Human
minds are not perfect and it is not possible that there might not be any mistake at any
stage thus, these errors can be used for advantage of penetrating a computer security
system.

4. Laxity of human:- Irresponsibility is very closely connected with human errors. It is

therefore very much possible that while protecting the computer system there might be
some negligence, which will result in providing the advantage to gain access, control
and misuse the computer system.

5. Loss of important data and information:- Loss of data is a very common & obvious
problem as all the data are routinely updated which results in removal of the previous
ones. Further collection of data outside the territorial extent also disable the system of
investigation.

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Mode Of Committing Cyber Tort

1. Unauthorized access to computer systems or networks/Hacking:-This kind of offence

is normally referred as hacking in the generic sense. However the framers of The
Information Technology Act 2002 have no where used this term and also the term
“unauthorised access” has a wider connotation than the term “hacking”.

2. Theft of information contained in electronic form-This includes information stored

in computer hard disks, removable storage media, magnetic disks, flash memory
devices etc. Theft may be either by appropriating or rather misappropriating the data
physically or by tampering them through the virtual medium.

3. Email bombing- This kind of activity refers to sending large numbers of mail to the
victim, which may be an individual or a company or even mail servers there by
ultimately resulting into crashing.

4. Data diddling- This kind of an attack involves altering raw data just before a
computer processes it and then changing it back after the processing is completed. The
Electricity Board faced similar problem of data diddling while the department was
being computerized.

5. Trojan attacks- This term has its origin in the word ‘Trojan horse’. In software field
this means an unauthorized programme, which passively gains control over another’s
system by representing itself as an authorised programme. The most common form of
installing a Trojan is through e-mail. E.g. a Trojan was installed in the computer of a
lady film director in the U.S. while chatting.

· Who Are Generally Cyber Criminals:

The cyber criminals constitute of various groups/ category. This division may be
justified on the basis of the object that they have in their mind. The following are the
category of cyber criminals-

1. Children and adolescents between the age group of 6–18 years –The simple reason

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for this type of delinquent behaviour pattern in children is seen mostly due to the
inquisitiveness to know and explore the things. Other cognate reason may be to prove
themselves to be outstanding amongst other children in their group. Further the
reasons may be psychological even. E.g. the Bal Bharati (Delhi) case was the outcome
of harassment of the delinquent by his friends.

2. Organized hackers-These kinds of hackers are mostly organised together to fulfill

certain objective. The reason may be to fulfill their political bias, fundamentalism, etc.
Recently the Indian Government had been targeted with the same. Further the NASA
as well as the Microsoft sites is always under attack by the hackers.

3. Professional hackers/crackers – Their work is motivated by the colour of money.

These kinds of hackers are mostly employed to hack the site of the rivals and get
credible, reliable and valuable information. Further they are employed to crack the
system of the employer basically as a measure to make it safer by detecting the
loopholes.

state databases and news services, cyberspace research libraries of law firms, national,
regional, and local verdict reporters, reports of domain name disputes, individual
cyberspace cases reported on law firm web sites, law school research centers,
American Law Reports (“ALR”) annotations, all Internet-related Mealey publications,
e-commerce law secondary sources, Internet.

· Distinction Between Cyber Crime And Cyber Tort

There is specific distinction between cyber crime and cyber torts which has to be cleared when
we are discussing cyber torts.

The cyber crime includes hacking/cracking, Possession of unauthorised information , cyber

terrorism against government organisations ,distribution of pirated software , harassment
through emails , cyber stalking , dissemination of obscene material on the internet ,
defamation , hacking/cracking , indecent exposure , computer vandalism , transmitting virus ,
internet intrusion , unauthorised control over computer systems , pornography , exposing the
youth to indecent material , Trafficking.

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Cyber torts include cyber stalking , breach of privacy , cyber obscenity and cyber defamation.

So there may be some elements which may be common in both but there are several
differences between the two.

Section 79 of the Information Technology Act, 2000

(the "Act") gives immunity to network service providers. According to Section 79 of the Act, a
'network service provider' (defined as a person who on behalf of another person receives,
stores or transmits the electronic messages) shall not be liable under the Act, or Rules or
Regulations made there under, for any third party information or data made available by him
if he proves that the offence or contravention was committed without his knowledge or that he
had exercised all due diligence to prevent the commission of such offence or contravention.

Section 79:

(1) Notwithstanding anything contained in any other law for the time being in force but
subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any
third party information, data, or communication link made available by him.

(2) The provisions of sub-section (1) shall apply if—

(a) the function of the intermediary is limited to providing access to a communication system
over which information made available by third parties is transmitted or temporarily stored; or

(b) the intermediary does not—

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission.

(3) The provisions of sub-section (1) shall not apply if—

(a) the intermediary has conspired or abetted in the commission of the unlawful act;

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(b) upon receiving actual knowledge, or on being notified by the appropriate Government or
its agency that any information, data or communication link residing in or connected to a
computer resource controlled by the intermediary is being used to commit the unlawful act,
the intermediary fails to expeditiously remove or disable access to that material on that
resource without vitiating the evidence in any manner.

(4) Intermediary shall observe such other guidelines as the Central Government may prescribe
in this behalf.

Explanation.--For the purpose of this section, the expression "third party information" means
any information dealt with by an intermediary in his capacity as an intermediary.

Section 2(w) –
"intermediary", with respect to any particular electronic records, means any person who on
behalf of another person receives, stores or transmits that record or provides any service with
respect to that record and includes telecom service providers, network service providers,
internet service providers, web-hosting service providers, search engines, online payment sites,
online-auction sites, online market places and cyber cafes, but does not include body corporate
referred to in section 43A."

· Analysis Of The Statutory Provisions:

The Information Technology Act 2000 was undoubtedly a welcome step at a time when there
was no legislation on this specialised field. The Act has however during its application has
proved to be inadequate to a certain extent. The various loopholes in the Act are-

1. The hurry in which the legislation was passed, without sufficient public debate, did not
really serve the desired purpose Experts are of the opinion that one of the reasons for the
inadequacy of the legislation has been the hurry in which it was passed by the parliament and
it is also a fact that sufficient time was not given for public debate.

2. “Cyberlaws, in their very preamble and aim, state that they are targeted at aiding e-
commerce, and are not meant to regulate cyber torts” :- Mr. Pavan Duggal holds the
opinion that the main intention of the legislators has been to provide for a law to regulate the
e-commerce and with that aim the I.T.Act 2000 was passed, which also is one of the reasons
for its inadequacy to deal with cases of cyber crime.

3. Cyber torts:- The recent cases including Cyber stalking cyber harassment, cyber nuisance,

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and cyber defamation have shown that the I.T.Act 2000 has not dealt with those offences.
Further it is also contended that in future new forms of cyber torts will emerge which even
need to be taken care of. Therefore India should sign the cyber crime convention. However the
I.T.Act 2000 read with the Penal Code is capable of dealing with these felonies.

Conclusion

Capacity of human mind is unfathomable. It is not possible to eliminate cyber crime or either
cyber torts from the cyber space. It is quite possible to check them. History is the witness that
no legislation has succeeded in totally eliminating crime from the globe. The only possible step
is to make people aware of their rights and duties (to report crime as a collective duty towards
the society) and further making the application of the laws more stringent to keep a check.
Undoubtedly the Act is a historical step in the cyber world. We would conclude with a word of
caution for the pro-legislation school that it should be kept in mind that the provisions of the
cyber law are not made so stringent that it may retard the growth of the industry and prove to
be counter-productive and at the same time a vigil check should be kept on its
misappropriation and further consequences.

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References

 Handbook Of Cyber Laws-Macmillan-Vakul Sharma

 Nagpal R. – What is Cyber Crime?

 en.wikipedia.org/wiki/Cyber law

 http://www.legalservicesindia.com/article/article/cyber-torts-1134-1.html

 https://www.cyberessays.com/lists/cyber-torts/

 https://cis-india.org/internet-governance/resources/section-79-information-technology-
act

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