Cyber Crime: - In Indian Perspective

 

Author: Deepanshi Singh, ICFAI University, Dehradun

INTRODUCTION

Cybercrime is an offence involving targeting or attacking a computer or computer network with the objective of performing an illegal activity such as committing fraud, trafficking in child pornography, software vulnerability exploits or social engineering.

Cybercrime, also known as computer crime, the use of a computer as a device to in addition unlawful ends, which include committing fraud, trafficking in child pornography and intellectual property, stealing identities, or violating privacy. Cybercrime, especially through the Internet, has grown in importance as the computer has become central to commerce, entertainment, and government.

Ø CYBERCRIME RANGES VARIETY OF ACTIVITIES. CYBER CRIME CAN BE BASICALLY DIVIDED INTO THREE MAJOR CATEGORIES:

Cyber-crimes against persons like harassment occur in cyberspace or through the use of cyberspace. Harassment can be sexual, racial, religious, or other.

Cybercrimes against property like computer wreckage (destruction of others' property), transmission of harmful programs, unauthorized trespassing, unauthorized possession of computer information.

Cyber-crimes against government like Cyber terrorism

Ø  CLASSIFICATION OF CYBER CRIME.

  CYBER PORNOGRAPHY- Pornography has no legal or consistent definition. The reason why we do not have a clear definition as far as pornography is concerned is that we do not have uniform standard culture and ethics in the world nor do we have uniform laws which defines the pornography. The Indian law doesn’t define the term pornography and not deal with this term.

TEST OF OBSCENITY AND PORNOGRAPHY- The test of obscenity was first laid down in the case of Regina V. Hicklin[1]( (1868) 3 QB 360.)as the tendency “to deprave and corrupt those whose minds are open to such influences and into whose hands a publication of this sort may fall”, and it was understood that this test would apply only to the isolated passage of the work.

In Miller v. California[2]( 413 US 15(1973), the Supreme Court of United States in landmark judgment gave the basic guidelines and three point tests to determine obscenity in the work i.e.

1. That the average person, applying contemporary “community standards”, would find that the work, taken as a whole, appeals to the prurient interest.

2. That the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law or applicable law.

3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

In Samresh Bose v. Amal Mitra[3]( AIR 1986 SC 967) the Supreme Court has held that “A vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depriving, debasing and corrupting the morals of any reader of the novels, whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences''. In this case the court differentiated between vulgarity and obscenity and further held that while judging the question of obscenity “the Judge should place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers.

 CYBER STALKING- Cyberstalking is a crime in which someone harasses or stalks a victim using electronic or digital means, such as social media, email, instant messaging (IM), or messages posted to a discussion group or forum. Cyber stalkers take advantage of the anonymity afforded by the internet to stalk or harass their victims, sometimes without being caught, punished or even detected.

 CYBER TERRORISM- Cyberterrorism is the convergence of cyberspace and terrorism. It refers to unlawful attacks and threats of attacks against computers, networks and the information stored therein when done to intimidate or coerce a government or its people in furtherance of political or social objectives.

 HACKING- Cyber hacking, also known as cyber attacking, is the practice of intentionally exploiting weaknesses in an organization's computer systems. Cyber hacking can be used for purposes such as compromising or stealing data, disrupting communication or procedures, or to satisfy other harmful objectives

Ø  “HOW TO PROTECT BEING A CYBER VICTIM”

The FEDERAL BUREAU OF INVESTIGATION(FBI) offers a number of tips to companies wishing to better protect themselves from Business Email Compromise attacks:

 Use secondary ways or two-factor authentication to verify request for changes in account details.

Ensure the URL in emails is associated with the business/individual it claims to be from.

 Be cautious about hyperlinks that may contain misspellings of the actual domain name.

Refrain from supplying login credentials or PERSONALLY IDENTIFIABLE INFORMATION of any sort via email. Many mails requesting your personal details may seem to be authentic but are actually not authentic, one has to be aware.

 Verify the email address to which you are sending mail, be careful that you send mail to the correct address.

 Ensure the settings in employees’ computers are enabled to allow full email extensions to be viewed.

 Monitor your personal financial accounts on a regular basis for irregularities, like missing deposits.”

Ø  DOCTRINE OF MENS REA & ACTUS REUS IN CYBER CRIME

Actus Reus means “Such result of human conduct as the law seeks to prevent”. There must be commission or omission to constitute a crime. As far as mens rea is concerned, it means “A guilty state of mind”. The mental element forms the other important ingredient of crime. The act remains the same while the state of mind makes the act ‘reus’ and hence an offence. In Cybercrimes, one should see what the state of mind of the hacker was and that the hacker knew that the access was unauthorized. Thus, a “Particular Computer” needs not to be intended by the hacker, it is enough if the unauthorised access was to “any computer”.

Actus Reus in cybercrimes has become a challenge as the entire act is committed in intangible surroundings. The perpetrator may leave some footmarks in the machine itself though it becomes a herculean task for the law enforcement machinery to prove it in the courts, as it is required to be in physical form or at least in such a form where it becomes admissible in evidence.

Ø  LAWS UNDER IT ACT AND IPC IN INDIA

1.  Cyber crimes under the IT Act:

o    Tampering with Computer source documents - Sec.65

o    Hacking with Computer systems, Data alteration - Sec.66

o    Publishing obscene information - Sec.67

o    Un-authorised access to protected system Sec.70

o    Breach of Confidentiality and Privacy - Sec.72

o    Publishing false digital signature certificates - Sec.73 

2.  Cyber Crimes under IPC and Special Laws:

o    Sending threatening messages by email - Sec 503 IPC

o    Sending defamatory messages by email - Sec 499 IPC

o    Forgery of electronic records - Sec 463 IPC

o    Bogus websites, cyber frauds - Sec 420 IPC

o    Email spoofing - Sec 463 IPC

o    Web-Jacking - Sec. 383 IPC

o    E-Mail Abuse - Sec.500 IPC 

3.  Cyber Crimes under the Special Acts:

o    Online sale of Drugs under Narcotic Drugs and Psychotropic Substances Act

o    Online sale of Arms Arms Act

Poona Auto Ancillaries Pvt. Ltd., Pune v. Punjab National Bank, HO New Delhi & Others(2013)

In 2013, Maharashtra’s IT secretary Rajesh Aggarwal ordered Punjab National Bank (PNB) to pay Rs 45 lakh to the complainant Manmohan Singh Matharu, MD of Pune-based business Poona Auto Ancillaries, in one of the biggest compensation awards in a judicial adjudication of a cybercrime case. After Matharu responded to a phishing email, a fraudster deposited Rs 80.10 lakh from his PNB account in Pune. Since he reacted to the phishing email, the complainant was requested to share the blame, but the bank was deemed responsible owing to a lack of appropriate security checks against fraud accounts created to deceive the Complainant.

CONCLUSION

Cyber crime is much serious crime and there must be strict laws and amendments, social media hacking, pornography these are much offensive crime, harming one’s dignity is not a joke when one is even not aware about wrong that has happened to her/him. The IT Act and the Rules promulgated thereunder regulate the cyber law regime. When the IT Act is unable to provide for any specific sort of offence or if it does not include exhaustive provisions with regard to an offence, one may also turn to the provisions of the Indian Penal Code, 1860. Hence, the current cyber law system is still insufficient to cope with the wide range of cybercrimes that exist.