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Some Comments in respect of the Report submitted by the Standing Committee on Information Technology (2007-08) to the 14th Lok Sabha
&
The Response of the Media especially the Times of India and Economic Times to the same.
VENKATESH PASTAY
Advocate and Consultant.
The Standing Committee on Information Technology (2007-08) ( the committee )has submitted a detailed report discussing various issues pertaining to the operation and enforcement of the Information Technology at 2000 in India. The Committee also has provided several suggestions in this regard. It is unfortunate that without considering the said Report in its entirety, certain sections of the media, especially the Times of India and the Economic Times, have made certain observations which prejudice and present a lop sided view of the entire Report and the issues involved therein.
2. The Committee has recommended that the amendment to Information Technology Act 2000, should be such that the said Act should be self-enabling and people friendly. The Committee has felt that the Government has not chosen to bring new and exclusive Bill to make Information Technology Law a comprehensive and people friendly law. It is felt need that the Information Technology Act, 2000, as it stands today does not provide for all the contingencies and therefore there are several other aspects in this regard which require to be incorporated within the ambit of Information Technology Act. The said suggestion is a welcome suggestion and there should be least criticism in respect of the same.
3. The Committee has suggested that there is a need to have adequate and stringent provisions in respect of cyber crimes and cyber terrorism in the line of Section 120B and 121 of the Indian Penal Code. The Indian Penal Code has undergone considerable amendment under Information Technology Act, 2000. However, as crimes, such as, crimes against humanity, crimes against nation/country and crimes against society at large, cannot be tackled by mere amendments to the provisions of the Indian Penal Code, in the light of the advent of cyber space, it is necessary to tackle the issue relating to cyber and cyber terrorism by incorporating analogous provisions to Sections 120B and121 of the Indian Penal Code, which are applicable to cyber space activities.
4. In so far as jurisdiction aspect is concerned, the Committee has recommended that the Government should utilize diplomatic channels for creating a movement in favour of formation of a convention, which will act as a road map for the purpose of formation of Information Technology Act through out various jurisdictions in the world. The said suggestion is also a welcome suggestion.
5. In so far as electronic signature is concerned, the Committee has expressed that the introduction of electronic signature is a welcome move and will help new technological invention in the electronic signature era.
6. The Committee has recommended that the electronic records must be audited mandatorily in terms of information system and information security standards, so that there is clarity, authenticity and legal sanctity. The said recommendation is one of the very important mile stones as presently there is no comprehensive statutory backing in respect of the auditing of the electronic records.
7. In so far as the liability of Network Service Providers (“NSP”), the NSP’s can block/eliminate the objectionable and obscene contained with the help of technical mechanisms, like, filters and incomplete storage intelligence. The said recommendation is also very much necessary in the background of the wide spread misuse of internet and worldwide web by certain anti-social elements. The Internet and Cyber Space has made life easy on commercial and social front through out the world. This instrument should remain as an useful instrument to the society and should not grow into a menace for the society just because of few people who wish to use the same as a weapon for the destruction of the peace and order in the society. In this background, the direction to have law mandating for incorporation of necessary technical mechanisms is also of much relevance in the present scenario.
8. The Committee has come down heavily on the removal of the concept of due diligence for a check list approach. The said suggestion of the Committee also is a fair one. The due diligence concept in incorporating the security measures by the Network Providers is already present in the existing statement. The said conception was sought to be removed by introduction of a check list approach through Amendment Act. The Committee has criticized such a move.
9. The Times of India has very well forgotten that the due diligence concept is part of the Statute Book since 17th October 2000 and it is not something new being proposed for the first time by the Committee. In this regard, the comments and the views expressed by the Times of India are totally lop sided and biased for whatever reason. Absolving totally from all the liability of the Network Service Providers means the Network Service Providers can do anything and can defend themselves on the ground of ignorance and lack of knowledge/intention. If necessary, safeguard can be introduced by available and devolving technical mechanisms. There should be no objection of any entity Corporation for introduction of the same.
10. Now, in so far as imposition of liability on the Network Service Providers is concerned, the Committee has observed that it does not agree that the Network Service Providers may not be knowing what their subscribers are doing and hence they would not be penalized. The Committee observes “what is relevant to see is that when their platform is abused for transmission of allegedly obscene and objections contents, the inter-mediary/Service Providers should not be absolved of the responsibility. The Committee, therefore, recommends that a definite obligation should be cast upon inter-mediary/Service Providers in view of the menace and irreparable damages caused to the victims”. The Service Providers should not shirk their responsibility only on the ground that it is impossible for them to regulate the contents posted on their platform. It is factually incorrect and misleading to state that it is impossible to regulate and control the contents posted on a particular website or portal. When technical mechanisms are available to screen and ascertain the existence of objectionable material to a reasonably fair extent, it is a matter of duty on the part of the Network Service Providers to incorporate such measures. If Network Service Provider has failed to incorporate such measures, the logical consequence will be to hold them liable for the lapse committed by them.
11. In the background of the Bazee.com case, there are several reports, views and comments expressed by media and so called intellectuals in this country that the Information Technology Act, 2000, is very stringent and draconian in nature. The said observations are made without appreciating the provisions of the Act. The law as such, as it stands in the Statute Book, is not draconian in nature. A person cannot be arrested from his residence without there being an arrest warrant issued.. However, those enforcement agencies which are implementing the provisions of the statute, lack the knowledge and implication of the provisions of law. That does not necessarily mean that the law itself is draconian. The law may be good and salutary. Yet, the people who operationalise it and implement it may do it without appreciating or in violation of the letter and spirit of such law. This type of events do take place in the field. There are cases of confusion and misunderstanding with regard to the meaning, interpretation and the way the provisions have to be operationalised. That does not mean that the law per se is draconian. In this background, it is necessary that appropriate cyber law awareness is created amongst law enforcing agencies in a war footing manner. Unless people know the real meaning and implication of different provisions, it is very difficult to expect that they can really implement such provisions in their true spirit. There are several such statutes, which have been passed by the legislature, which undergo a period of gestation and attain maturity over a period of time. The statute, such as, Indian Penal Code, Indian Contract Act etc., have been there in the Book for more than a century and have been time tested and used, interpreted by several generations of society. Therefore, today, we may feel that there are no loop-holes in the said law. But, at an initial stage, the said statutes might have been seen as the unnecessary clogs in development, just because people who enforce the provisions, did not properly appreciate the meaning of different provisions of the respective Acts.
12. The Committee has also recommended that the Department should restore at least the originally suggested amount of Rs.25 crores as damages by way of compensation to be imposed upon the body corporate for negligence in implementing and maintaining reasonable security practices. In the light of the growth of e-commerce activities on cyber space, it is high time that such provisions are incorporated.
13. The Committee also has suggested suitable punitive measures for the recipient of stolen data. This is also a salutary recommendation.
14. Thus, there are several salutary provisions and recommendations which go into the said Report. Therefore, the baby should not be thrown with the bath water while criticizing the contents of the Report submitted by the Statutory Committee. The Committee has recommended that the enticement or showing pornography or through any on-line means should be made criminal offence. The Committee has recommended that emergency provisions of interception as provided in Section 5 (2) of the Indian Telegraph Act, 1885, should be incorporated to prevent proliferation of cyber crimes. The Committee recommends that interceptions should be allowed for prevention of any cognizable offence in addition to the already prescribed grounds of sovereignty and integrity of India, security of State and defence of India, friendly relationship with foreign States, etc. The Committee has recommended that Section 80 of the principal Act should be retained with some modifications commensurate with the suggestions of the Committee for Section 78. The Committee has stated that the words “the Government Body” may be inserted in new Section 70 (a)(1) immediately after the words “Indian Cyber Emergency Response Team” (CERT-IN).
It is felt that the opinions and views expressed by the mainstream media representing the lopsided version of the facts and needs of the society does not serve well from the point of view of responsible journalism. It is high time media stood up in favour of unbiased reporting and against the presentation of views which are in effect unfair from the larger society’s interest point of view.
