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INDIAN CYBERLAW- SOME PERSPECTIVES . A PRESENTATION BY PAVAN DUGGAL, ADVOCATE, SUPREME COURT OF INDIA PRESIDENT,CYBERLAWS.NET HEAD-PAVAN DUGGAL ASSOCIATES . NEW DELHI-19-5-2006. PUBLIC DOMAIN BUZZ. GOAP E-TENDERING PROJECT NOT BASED UPON DIGITAL SIGNATURES, DESPITE BEING LAUNCHED IN 2002

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INDIAN CYBERLAW-SOME PERSPECTIVES


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A PRESENTATION BY PAVAN DUGGAL,ADVOCATE, SUPREME COURT OF INDIAPRESIDENT,CYBERLAWS.NETHEAD-PAVAN DUGGAL ASSOCIATES

NEW DELHI-19-5-2006


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PUBLIC DOMAIN BUZZ

  • GOAP E-TENDERING PROJECT

  • NOT BASED UPON DIGITAL SIGNATURES, DESPITE BEING LAUNCHED IN 2002

  • ALLEGATIONS AGAINST THE BACKEND SERVICE PROVIDER, WHO HAD ACCESS TO ALL BIDDING CONFIDENTIAL INFORMATION


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NEW CASES

  • GOVERNMENT OF RAJASTHAN- TENDER FOR CUSTOMIZED SOFTWARE

  • CAUGHT IN A LEGAL BATTLE BETWEEN VENDORS IN THE DELHI HIGH COURT


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NEW CASES( contd)

  • ASHOKINTEGRIX IP ADDRESS CASE- INDIA’S FIRST JOHN DOE CASE IN INFORMATION TECHNOLOGY LITIGATION

  • BIRTH OF A NEW KIND OF LIABILITY NOT YET PERCEIVED


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NEW CASES

  • ARIF AZIM CASE- INDIA’S FIRST CYBERCRIME CONVICTION

  • BREACH OF DATA SECURITY

  • INTERNAL SOURCES- THE BIGGEST RISK FOR ANY LEGAL ENTITY USING COMPUTERS


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BEGINNING OF LIABLITY

  • S.CHANDER CASE- INDIA’S FIRST LEGAL PRECEDENT FOR EXPOSURE TO LIABILITY

  • FOREMOST BANK MADE LIABLE FOR MISUSE ON THE NETWORK BY AN ERRANT EMPLOYEE


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CELEBRATED CASES

  • BAAZEE.COM CASE

  • KARAN BAHREE CASE

  • MPHASIS CASE


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CYBER LAW IN INDIA

  • In India the Information Technology Act, 2000 is the legislation that deals with issues related to the Internet.


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THE INFORMATION TECHNOLOGY ACT , 2000


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I.T. ACT, 2000:OBJECTIVES

  • Different approaches for controlling, regulating and facilitating electronic communication and commerce.

  • Aim to provide legal infrastructure for e-commerce in India.


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GOVERNMENT –NSP??

  • GOVERNMENTS PROVIDING SERVICES ON THE NETWORK

  • GOVERNMENTS ARE INTERMEDIARIES

  • UNDER THE IT ACT, 2000, ALL GOVERNMENTS, CENTRAL AND STATE, AS ASLO ALL GOVERNMENTAL BODIES ARE “NETWORK SERVICE PROVIDERS”


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Section 79

  • For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder 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.


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Network Service Providers:When Not Liable

  • Explanation.—For the purposes of this section, —

    (a) "network service provider" means an intermediary;

    (b) "third party information" means any information dealt with by a network service provider in his capacity as an intermediary.


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TRANSPARENCY

  • NEED FOR TRANSPARENT E-GOVERNMENTAL PROVIDERS

  • RIGHT TO INFORMATION ACT

  • GOVERNMENTAL WOULD NOW NOT BE ABLE TO HIDE RECORDS CONCERNING E-GOVERNMENTAL PROCUREMENTS


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IT ACT, 2000-OBJECTIVES

  • To provide legal recognition for transactions:-

  • Carried out by means of electronic data interchange, and

  • Other means of electronic communication, commonly referred to as "electronic commerce", involving the use of alternatives to paper-based methods of communication and storage of information.


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OBJECTIVES (contd.)

  • To facilitate electronic filing of documents with the Government agencies

  • To amend the Indian Penal Code, the Indian Evidence Act, 1872, the Banker's Book Evidence Act, 1891 and the Reserve Bank of India Act, 1934


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AUTHENTICATION OF ELECTRONIC RECORDS

  • Any subscriber may authenticate an electronic record

  • Authentication by affixing his digital signature.

  • Any person by the use of a public key of the subscriber can verify the electronic record


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LEGALITY OF DIGITAL SIGNATURES

  • Legal recognition of digital signatures.

  • Electronic Signatures not yet legal in India.

  • Certifying Authorities for Digital Signatures.

  • Scheme for Regulation of Certifying Authorities for Digital Signatures


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CONTROLLER OF CERTIFYING AUTHORITIES

  • Shall exercise supervision over the activities of Certifying Authorities

  • Lay down standards and conditions governing Certifying Authorities

  • Specify various forms and content of Digital Signature Certificates


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DIGITAL SIGNATURES & ELECTRONIC RECORDS

  • Use of Electronic Records and Digital Signatures in Government Agencies.

  • Publications of rules and regulations in the Electronic Gazette.

  • MCA –21 Project- Usage of Digital Signatures


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COMPENSATION

If a person without the permission of owner or any other person in charge of a computer, computer system or computer network, accesses or secures access to such computer, computer system or computer network, he is liable to pay statutory damages by way of compensation, not exceeding one Crore rupees ( Rs 10,000,000/- ) to the person so affected.


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CYBER OFFENCES

  • Various cyber offences defined

  • Cyber offences to be investigated only by a Police Officer not below the rank of the Deputy Superintendent of Police.


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CYBER OFFENCES (contd.)

  • Tampering with computer source documents.

  • Publishing of information which is obscene in electronic form.

  • Breach of confidentiality and privacy.


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CYBER OFFENCES (contd.)

  • Hacking

  • Misrepresentation

  • Publishing Digital Signature Certificate false in certain particulars and publication for fraudulent purposes.


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LITIGATION ALREADY BEGUN

  • Litigation already begun in India relation to e-procurement.

  • Numerous legal issues relating to electronic government procurement will continue to emerge in the near future.

  • Need to adopt a proactive approach in dealing with these various legal challenges


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AMENDMENTS IN IT ACT, 2000

  • MAKES THE LAW TECHNOLOGY NEUTRAL

  • ELECTRONIC SIGNATURES INSTEAD OF DIGITAL SIGNATURES

  • NEW PROVISION ON PRIVACY

  • WATERS DOWN THE LIABILITY OF THE NETWORK SERVICE PROVIDERS


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HUGE DRAWBACKS OF THE PROPSOED AMENDMENTS

  • DATA PROTECTION

  • NO NEW CYBERCRIMES ADDED

  • PRIVACY APPROACH PRIMITIVE

  • INTELLECTUAL PROPERTY RIGHTS

  • TAXATION

  • E-PAYMENTS


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NEED TO COMPLY

  • There is a need to proactively comply with the requirements of the Indian Cyberlaw .

  • Necessary to limit liability and emergence of undesirable consequences.

  • The Information Technology Act, 2000 currently under review by the Government.

  • Need to adopt a flexible approach of due diligence.


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THAT WAS A PRESENTATION BY PAVAN DUGGAL,ADVOCATE, SUPREME COURT OF INDIAPRESIDENT, CYBERLAWS.NETHEAD-PAVAN DUGGAL ASSOCIATES EMAIL : [email protected]@gmail.com


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