In a typical Cyber Crime which keeps happening in India with some regularity, a
Chandigarh based girls has found her face being morphed on to a nude picture and
circulated amongst her relatives and friends. It is said that the investigations
have hit a dead end at a Cyber Cafe which has not maintained any details of the
user. Another case of harassment has been reported from Kolkata where the Police
has tracked down the culprit and are in the process of prosecuting him. This
case is similar to the Suhas Katti Case in which Chennai police were successful
in getting conviction in record time.
This kind of Cyber Crimes have become a common form of harassing women normally
by estranged lovers or family members. Under commercial considerations, most of
the celebrities in India are also subjected to such humiliation. While the
celebrities from the film world may have the capability to withstand such
ignominy, the common women from respectable families may not be so resilient. It
would not be surprising if some marriages are broken and some women commit
suicides following such incidents.
In the present context when a review of the ITA-2000 is in progress, it is
necessary to put on test the recommendations made by the Expert Committee on how
their suggestions would affect the interests of the common people
such as those involved in the above case.
The most important aspect of investigation of the above case is the
identification of the offender. This requires the IP address usage details from
the ISP and then the actual user details by the Cyber Cafe. Without their active
cooperation, the investigation cannot even take off.
Under the present laws, the intermediaries would have a vicarious liability
except when they prove "due diligence". Due Diligence can be implied when they
have taken reasonable measures to prevent happening of Cyber Crimes and
reasonable measures to keep the evidences in tact in case of a Cyber Crime.
Over the last few years, the ISP s and Cyber Cafe owners had been realizing
their responsibilities slowly and had started cooperating with the Police. While
specific regulations were in place in Karnataka and Maharashtra for maintenance
of "Visitor's Registers", even in other places, responsible Cyber Cafe owners
had started maintaining registers, displaying notices and generally discouraging
use of Cyber Cafe facilities for anything that could harm others. Once these
regulations specified that the visitor's registers are to be maintained for a
specific period of time, non maintenance of such registers came under the
provisions of Section 65 which could impose an imprisonment of 3 years for the
Cyber Cafe owner for failing to maintain the records. It was understood that the
Cyber cafe owner was not expected to be a Policeman and make a background check
on the visitor or check for the veracity of the data entered by the visitor in
the register. But he could still capture the handwriting and signature of the
users which itself could be of use some time later in the investigations.
In the present recommendations, it has been stated that all intermediaries
including the Cyber Cafes would not be liable unless conspiracy or abettment is
proved against them. Hence the Police are unlikely to get any help from the
Cyber Cafe to probe the case further.
Further the "morphing" activity could be covered in the present Section 66 while
the amended section may not be able to cover it.
Under the present disposition the victim could approach the Police and they can
arrest a suspect who is likely to be related or known to the victim and have a
motive to defame her. But in the proposed amended act the complaint has to be
made to the Magistrate's court and the Police cannot secure the arrest without a
court order.
It is therefore clear that the proposed amendments would work against the victim
in this case.
Even in the Kolkata case (See the details in the link below) the present laws
can invoke Section 66 and the website owner who has hosted the information will
have a vicarious liability which may force him to part with the IP address
details on posting of messsages or uploading of files. In the amended act it
would be impossible for the Police to get any information from the website owner
and hence the case could not have progressed as much as it has now.
At a time when such Cyber Crimes require a tightening of Cyber Laws, the
proposed softening of the laws as suggested by the Expert Committee provides a
glaring contrast.
The option before the Government is to decide if it is the
interest of the Common man/woman which is important or the interest of the
intermediaries? .
Will any member of the Expert Committee or the MCIT let
us know how the proposed amendments would fare compared to the present act with
specific reference to Section 66,67,72,79 and 80.
Naavi
September 9, 2005
Related Article:
...Report in
Chandigarh news line
Another Case from Kolkata..Reported in ET
