During the COVID-19 19 lock down period between march 2020 to almost the end of October 2020, we have seen steep rise of cybercrimes especially cybercrimes against women. These crimes included different patterns: economic crimes, data privacy infringement, child sexual abuse online and creation of widespread hatred. Social media platforms like twitter, Instagram etc., had been flooded with hate messages, fake news, obscene messages etc. but it would be wrong to think that only web-based platforms had been used to creates online harassments or cyber crimes at large. Handheld phones are not spared either. Communication conveyed over phone had been threatening, unwanted and had also taken the nature of bullying. Both the receivers and perpetrators are nothing but Netizens. The concept of Netizens is fiction based just like the concept of cyber space, which finds it roots in the fiction called Neo romancer.
Individuals who live, survive in internet, on the internet and gain infotainment and use internet for connectivity are known as Netizens. The simple connotation of this term could be citizens of net.
But this term has not found any acceptance in any legal statute, international documents speaking about right to access internet, right to be forgotten or even cyber safety, e commerce. This is a popular nickname for all those who use internet, who have been born in the era when internet was booming and those who are connected to each other through information-digital communication technology. Often, we do get to hear that people belonging to the older generation who adopted internet and digital communication technology (because otherwise they could not have survived due to global digital revolution), are called as net immigrants because they may have get accustomed with the digi-culture. But would not prefer to use this term. Worldwide e-governance growth has involved every citizen to become netizen. Digitization by the governments of birth, marriage and death registrations, social security related data, bank data, school data, workplace data, health data, court data and above all internet and digital communication technology consumption data for the purpose of e-governance has therefore made everyone irrespective of age, gender, class, creed etc, netizens.
Netizens play a great role in shaping the livability of themselves as well as other netizens including women and children netizens on cyber space. Laurence Lessig, a pioneering professor on cyberspace regulation predicted that internet will be a virtual livable space with ‘market’ and it would become necessary for State to carefully frame laws to regulate cyber space. His findings stand firm forever. Netizens are important stakeholders for profit generation for internet companies. They also earn by living on the cyber space. By saying this, I however can not ignore the fact that netizens may use internet and cyber space as a whole for ethical as well as unethical profit gain. Consider the positive profit gaining strategies: legal e-commerce activities, earning from content development, etc. The illegal profit gaining part is heavier. Millions of netizens sell and consume data that may have been generated, stored, processed, trafficked in illegal ways. Data of women and girls are the hot priority in this regard. Almost all stakeholders would unanimously agree that cybercrimes against women and girls are rising because of the unmonitored behavior of several netizens.
As such, if we quickly look into the existing constitutional and legal frameworks of different countries, we can see that almost all countries have knowingly or unknowingly developed certain rights and duties for netizens. These rights and duties are universal in nature and may include freedom of speech and expression, right to privacy, right to access justice, right to information, right to live a dignified life and right to be forgotten. Simultaneously the duties may include duty to respect others rights on the cyber space as well as in real life, duty not to incite hatred, not to infringe privacy, copy right of other netizens including organizations and government data etc. the prime duty of every netizen however is to help the victim of online abuse by reporting right violation because if they remain mute spectators, they would become bystanders and add to visual victimization of the victim/s.
We can also see that existing laws have extended penal provisions to charge the netizens for their wrong doings on the cyber space which may affect lives of others in real life. But major problem lies in the jurisdictional issues. Netizens are ubiquitous especially. Netizen from one geographic region may reach out to other netizens situated another geo location. Initiating criminal proceedings against netizens in such cross border criminal cases becomes a huge problem for the criminal justice machinery especially in the absence of treaties to extradite offenders. The international laws and rules also play a major role in charging netizens for offences which may not be considered as indictable offence in the country where the netizen is residing and operating from.
It is expected that the international organizations and States must come together for working towards creation of universal rules for regulating the activities of netizens. This may help all to live and be remembered in a wonderful cyber space.
Please do not violate the copyright of this writeup. Please cite it as Halder Debarati (2020) ‘Netizens’. Published @https://wordpress.com/posts/internetlegalstudies.com on November 3rd, 2020
With the spreading of Covid-19 pandemic all over the world including India at a pace faster than the speed of viral videos, all service industries and educational institutes have encountered major shocks. In India the government announced complete lock down on and from 24th March. While many elementary schools closed down immediately sending notices to the parents of the children about precautionary steps to be taken while staying safe at home for children, it was not the same case for undergraduate and postgraduate students. The colleges and universities in India started getting closed partially whereby the classes were stopped on an urgent basis and students were instructed to vacate the university premises including hostels etc in the early second week of March, 2020. Several universities and colleges started taking step to make sure that students must get back to their homes or home places before the major outbreak. By then, China, Italy and Spain reported heavy numbers of positive cases and stakeholders back in India were not able to gauge how fast this may affect us. The schools, colleges and universities still did not allow teachers, faculties and admin staffs to stay and work from home because there were no government circulars in this regard. Soon, it was felt necessary that campuses should close down because Covid 19 was definitely not choosing only children. India started having its own share of positive cases too, even though the percentage was far less than her neighbor China, or countries in Europe. 24th March lock down started in India. Within no time, people started enjoying their ‘sudden vacation’ at many places because many still did not believe that India may attract Covid 19 as rapidly as other countries could. Social media sites like TikTok, YouTube, Facebook, Instagram and Twitter started flooding with memes, funny jokes about quarantine. WhatsApp revived its popularity as a chosen medium to communicate with each other. Within a week or so, several stakeholders could understand this lock down would increase domestic violence problems as thousands of women, who may or may not be financially independent, had to stay quarantined with their abusive partners (husbands) for 24×7 and this encouraged more domestic quarrels, violence and abuses. Several men may have also found them in same situations, but indeed, the percentage of such men may be far more lesser than the female victims.
In between, the cases of online crimes against women including stalking and sending harassing and threatening mails/messages, creation of fake accounts, revenge porn contents, non-consensual sexual contents, non-consensual image sharing, bullying, trolling, online reputation damage cases also started surfacing. While the State and National commissions for women showed their concern for extending help for offline domestic abuse cases, online crimes against women did not receive much response even from the social media websites because such web companies also had to follow quarantine rules for their employees : disruptive internet connections also prevented faster approach to the web companies and the police. The later however, may not be expected to look into such issues right now because the police agencies already have the bad reputation of trivialising online crimes and harassments against women.
Given the understanding that lock down may extend beyond 21 days, several schools and universities started turning to online mode of imparting education. Zoom, the video conferencing app, became the chosen web application for this, closely followed by some other apps including Blackboard coursesites.com. YouTube on the other hand became the favourite platform for students for accessing study materials, reference materials and entertainments during the online classes and beyond the time fixed for online lecture by the teachers. WhatsApp however retained its highest popularity among the senior and junior students for connecting with each other during the class hours. But soon it was understood that no platform is free from abuses. High school students have taken it as a regular habit to make memes about their own classmates, especially female classmates, bully and harass them publicly within the groups; some teens even have gone to the extent of creating fake accounts of their female class mates on Instagram because they have felt somehow they may not have the desired attention from their classmates while they are online. Female teachers are no exception: several of them may have to encounter bullying from students in groups which were basically created by them to convey about online class timings. Several students may have also gone to the extent of capturing screen shots of Zoom and other online classes specifically targeting girl students.
Almost same pattern of privacy infringement cases was reported for online classes for higher education as well. Zoom became worst reviewed platform for conducting online classes as users including women students and faculties reported privacy infringement and cyber security issues all over the world. Reportedly users of Zoom started experiencing cyber flashing (forcefully sending unsolicited pictures of private parts)  : they have also experienced strangers penetrated into the zoom meetings only to throw lewd remarks to participants especially women. Several Indian faculties and undergraduate and postgraduate students may have reported similar kinds of harassments including group bullying, trolling and disruptive communications which may break the class lecture related communications.
What I see as a graver issue of privacy infringement is clicking screen shots of women faculties and students in name of record keeping. I have noticed that such screen capturing may happen specially at times when the female participant may switch on her camera and her facial image becomes visible. In India, the law is silent in this regard as such capturing of screen shots do not fall under the category of voyeurism or privacy violation as addressed under Ss. 354C of the Indian Penal Code and 66 E of the Information Technology Act, both addressing voyeurism (the former addressing voyeurism for women and the later, for all irrespective gender). It is however understood that when a participant (irrespective of gender and age) is instructed and invited to join a web meeting or online lecture series, he/she may have impliedly given a consent for being recorded. For children however, questions of such implied consents may never arise because legally, children may not be eligible to give consent. In that case, it becomes a clear-cut case of privacy infringement. But it may become a public wrong only when such picture is used for sexual gratification including self-sexual gratification. But how this is going to be proved unless the device is going to be put under surveillance? Unless some one finds out that such images have been used for sexual gratification, the Information Technology Act and the data protection provisions, including EU General Data Protection Regulations which has guided the framing of Indian Data Protection Bill, 2019, may not offer much help even if the victims are children.
What about adult women then? Unlike children, it would be presumed that they may participate the online meetings, classes, discussions etc with consent and such consent may imply that their presence may be recorded without telling them at what time they may be recorded while they are online. It is expected that they would be in proper attire so that even if their screen presence is captured, it would not be offensive. But here also, we come back to the same question: who guarantees that such images would not be captured by anyone else who may be a participant, but not authorised to record the presence of participants? How will the woman know such image (even if captured by the authorised person) may not be used for unethical purposes including sexual gratification purposes? The law may not have any answer in this case also. On the contrary, the woman concerned may have to face more harassment for raising such issues because Sexual harassment of women at workplace (prevention, prohibition and redressal Act), 2013 may not be always applicable in such cases due to lack of understanding of the nature of the grievances and also due infrastructural issues. Indeed, the claims of the woman may be washed away very easily by defending the situation on the basis of ‘technical and technological misunderstanding’. What we should not forget is, during lock down, quarantine and work from home period, there may be no guarantee that the smart phone or the tablet or the device may not be used only by the original handler : to kill the boredom, family members may access each other’s phones and may use it for playing prank as well.
However, not everything is as bad as we are apprehending! I have noticed several teachers and education management groups are turning their Whatsapp groups to ‘admin only’ mode where other group members may not be able to send messages. Indeed, this is a better way to prevent online harassment of women on WhatsApp groups. But the meeting/conferencing/ teaching platform apps are not yet ready to prevent privacy infringement issues.. The online platforms which had remained as secondary platforms, may not be expected to create robust security policies within a day or two. Neither the government and private stakeholders may do that. This will then create another toothless paper tiger which will be more harmful to individuals, especially women and girls. We need to maintain digital safe distancing for our own protection now. We should work collectively towards maintaining internet hygiene for us, our women and girls during the pandemic. We must understand that even when scientists and health professionals may declare Covid 19 as not so harmless, the pandemic of online harassment of women and girls may not recede. Such contents may surface again and again to remind us what could have been prevented by our simple diligence may never be removed even if the entire web world is disinfected.
We can no longer say “Stay home, stay safe” because as the government decisions suggest, universities and colleges may soon reopen phase by phase. The news of reopening business establishments brought cheers in the minds of people despite the fear of community transmission of the disease. But the reopening of the institutions may further escalate the victimisation of female faculties and teachers who may have been targeted by the online perpetrators. Such victims may even fear for loss of their job if the nature of victimisation includes creation of fake profiles and the same carries the names of the institutions. We must understand that such victims must be supported against further victimisation including possible job loss as they may not even know what had been their responsibility for attracting such sorts of victimisation. It has become mandatory now to maintain internet hygiene and safe digital distance from possible perpetrators for the sake of us, the entire human society!
Please note: please do not violate the copyright of this blog. If you need to cite it/use it for your work, please cite the same as Halder Debarati (2020). “Covid- 19 : Online harassment of women teachers and students during work from home.” Published on 10-06-2020 in https://wordpress.com/block-editor/post/internetlegalstudies.com
years YouTube has won millions of hearts in India as a social media platform
especially among women. This is because unlike other social media websites, YouTube
has provided a platform to earn money based upon views and subscribers.
Contents uploaded by users may be varied: it can be home decor, power point
presentations of simplified versions of undergraduate subjects, subject lectures
by professional teachers or amateur subject experts, cooking recipes, Do It
Yourself (DIYs), home organisations, daily routines of home makers, technological
solutions, how to do stuffs etc . Several women have used YouTube to earn money
generated through the revenue that YouTube promises once the user can reach some
criteria like getting 1000 subscribers or 4000 watch hours etc. 
YouTube however would not lead the user to create contents that may earn more
watch hours or subscribers. Users may go for market survey to understand which
sorts of videos may attract more views, ,more subscribers etc. mostly new users
including men and women may try to create videos on anything that they feel
proper to share to the world. YouGTube , like Facebook and Instagram has
features for allowing users to create videos for private sharing. This enables
the users to share the video which may be watched only by those whom the
creator chooses. The users may however go for wide circulation of their contents
by not only making the videos public, but also by going live whereby the users may directly communicate
with their subscribers or may share information while live. Even though going Live may be a feature specifically
for improving the relationship between the user and his/her subscribers, live
videos can be watched by the world wide audience even if they are not
subscribers to that particular user. Here, YouTube may not play a vital role to
restrict uploading and sharing the contents unless the subscribers or viewers may flag the content as inappropriate. In short, YouTube may actually provide a wide
platform to share anything including bullying videos, mashed up videos, child and
woman abuse videos, birthing videos, adult sexual interaction videos and so on.
While the adult sexual videos and birthing videos may not be universally accessible
unless the user logs in to his/her YouTube accounts, other sorts of videos are accessible
to all irrespective of age. YouTube however uses the due diligence clause to
escape from any third party liability by providing notification which restricts
children from viewing adult sexual contents or violent contents which may
traumatise children. Hardly this has any
practical implication because children may access these videos by using email
ids which may be created on the basis of fake age , or may even log in through
their parents’ or friends’ email /YouTube ids.
attention here is however attracted to the contents shared by YouTubers: I have
been an avid watcher of YouTube since many years now. I have been following the
changing trends of users in uploading the contents. Earlier it was more on
creating mashed up videos which may have the potentials of violating the copyrights.
Such videos have also been silently encouraged by actors, singers and producers
because these actually publicise their work even though it may violate the
But slowly, the content creators, especially women started becoming reviewers
of products on YouTube as well. This included using of cosmetics, kitchen wares
organisers etc that may be shown in the daily routine videos, home organisation
videos or make up tutorials.
not only get views and subscribers as may be needed for fulfilling the YouTube
monetising criteria, they may also be connected with the brands manufacturing
the products or dealers of the products who may wish to showcase their products
through these non-professional videos. Several urban and rural women home
makers have actually benefitted from this: consider Youtubers like Radhika Real
who may be rural homemakers, but may have made a moderate to comfortable living
because of their YouTube videos advertising about different brands including retailer
brands. Nonetheless, these YouTubers may
also be victims of bullying and trolling for the quality of their videos, their
pronunciation, lifestyle and even house decorations.
While these women may have made a landmark professional/personal achievement because of YouTube, they may unknowingly violate privacy of their own children or even spouses or other family members as they may be showing and informing the worldwide audience about their family members who may not may consent for such wide distribution of images of themselves. These YouTube videos may also be the subject matter of bullying and ridiculing the children of such YouTubers since these may stay on worldwide web for long time. YouTube videos may also create severe domestic violence for several reasons which include live fights between spouses which may be captured by third party YouTubers for fun and uploaded and circulated for getting more views; or airing of grievances by women YouTubers against the other spouses, without knowing the far-reaching consequences etc. These videos may attract huge views and opinions, comments in the nature of cyber bullying and also trolling targeting the YouTuber concerned or supporters of the same. Consider the case of two specific youtubers from Delhi, who are spouses in real life : the wife is a senior YouTuber whereas the husband is a recent Youtuber: They had severe altercations and started living apart. But this was not enough: both used YouTube to throw insults and humiliating words to each other and their teen daughter was allegedly dragged in between. The recent reports suggested that the teenager girl who was staying with her father for couple of months after the separation, was beaten by the latter while on live and her t-shirt was torn in a manner which would show her inner wares. The girl was beaten because she wanted to visit her mother. This video became viral as several supporters of the wife started showing the clippings through their own channels. Some had also informed ChildLine and the police who had rescued the teenager and sent her to her maternal grandmother. There are several other YouTubers who started discussing about incident using the profile name of the husband wife duo. While the news report published in the local news media suggested that the teenager was often beaten by both the parents when they were drunk and she was forced to come on live which she refused many times, the news clipping did not mention about the name of the girl and that of her parents as S.74 of the Juvenile Justice Care and protection Act, 2015 prohibits publication of the identity of the child in need of care and protection or child in conflict with law. The provision reads as below:
S.74. Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act.-1. No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published: Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child. 2. Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to twenty-five thousand rupees.
Now, let us understand the scope of this provision in the light of this particular case: the first subsection prohibits any report including news report, inquiry etc from disclosing the name, information etc of the concerned child. The second proviso extends the scope to ‘anyone’ who may contravene the prohibitory scope of S.74. Seen from the perspective of electronic media and the concept of citizen journalism, which gives every one right to share information, the term ‘anyone’ may literally include anyone including the good Samaritans who may have wanted to alert the concerned authorities, share their opinion against such acts of women and child abuse. Further, note the words “any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published” mentioned in the first sub clause. This may include the name of the concerned child and names of the parents. But apparently, this provision became a just a paper tiger in this case because those who had watched or subscribed to the videos of the couple had already known about the identity of the teenager because of the daily Lives put up by the parents and discussion about the girl in the videos posted by them. If one visits the comment section of the recent videos of both the parents in the recent past, it would be seen that commenters have taken the name of the girl, asked about her whereabouts and in some cases, some had also suggested about her changed behaviour after she had stayed with her respective parents separately. Nothing is confidential for those thousands of worldwide audiences now who had watched the parents daily and who had also witnessed the Live video where the girl was beaten up by the father. In spite of repeated request by the mother of the girl, several YouTubers still did not take down videos mentioning about the name of the father (which broadly falls within the meaning of “any other particulars calculated to lead to the identification of the juvenile or child”) when this writeup was published. While the Juvenile Justice Care and Protection and Act provides a base rule, the concerned YouTubers may not be held solely responsible because the parents already violated the privacy of the teenager and encouraged thousands to watch the couple fight which had every potential to attract penal provisions for using words etc for harming the modesty of the wife under S.509 Indian Penal Code as well as defamation of both the wife and the husband under Sections 499 and 500 of the Indian Penal Code. YouTube on the other hand has not taken down the videos of either of the spouses or that of the other YouTubers which may showcase the names of the parents and the child because it is guided by First Amendment of the US which may hardly be affected unless YouTube has been approached to take the videos down by concerned stakeholders.
It is now
a typical love triangle of three parties : YouTube, which is loved by all for
providing such an open platform for airing opinions and consumption of real
life family dramas, the YouTubers who may expect to get support, views,
popularity and money because of participating in the trolling and independent
discussions on such issues which may rip open privacy of general individuals including
children and criminal justice machinery, most of whom may never know how to
manage legalities of YouTube videos because they are completely ignorant of
this new type of electronic media.
But this is
not a unique incident that attracts the attention of legal researchers,
especially privacy law and speech law researchers. YouTubers, especially women YouTubers
continue to violate privacy knowingly or unknowingly and provide more opportunity
to trolls, bullies and offline perpetrators to victimise them because they may
not be aware about the netiquettes of YouTube. Time has come that YouTube users
become cautious of the contents uploaded by them and legalities attached with
such uploading and sharing. In this festive season YouTube content uploading
and sharing may have seen a steep rise. But it is upon YouTubers to control
what must be shared and may not.
is more powerful than televisions, more demanded than movies and more
devastating than what is generally apprehended.
example see Halder D., & Jaishankar K. (2016) Celebrities and Cyber Crimes:
An Analysis of the Victimization of Female Film Stars on the Internet. Temida –
The journal on victimization, human rights and gender. 19(3-4), 355-372
Man in Derbyshire uploads distributes breast pictures of his neighbor who borrowed the computer to upload the pictures for medical purposes. while returning the computer, she forgot to delete them.Accused shared the pictures because he was allegedly irritated by the victim. The court convicted the accused of revenge porn. Held that the pictures were not captured by the accused for sexual purposes, but were distributed for taking revenge. The court, which took note of the victim’s distress condition, ordered the accused is ordered two months prison sentence, 80 hours of unpaid work and restraining order prohibiting him to connect with the victim. https://www.derbytelegraph.co.uk/news/derby-news/derby-man-sent-revenge-porn-3280054
Pornhub owner earns money from the revenue generated through advertisements, rejects the claim that they allow revenge porn contents on their websites. But the reality is different. Victims state even police can not help in preventing uploading of revenge porn in such websites and detecting the perpetrators. Website liability is questioned. https://www.bbc.com/news/technology-49583420
Information communication technology and digital communication technology have opened up new vistas for human relationships. The innovative technology with the help of Artificial Intelligence (AI) can now read minds, predict illness, predict crime occurrence, enhance the professional and social network, and help in better analytical understanding of subjects. But it can also leave devastating impacts on human life. It can alter the data (including personal data), harm social reputation and can even instigate victims to take extreme steps like committing suicide. All these may be done by positive and negative usage of artificial intelligence which plays the base role for empowering Apps which in turn may be used for positive and negative usages. Artificial Intelligence (AI) has been used by web companies like Facebook for facial recognition of users earlier. AI has also been used for companies (other than web companies) for processing employee data. In short, AI has been used to access private information of individuals either consensually or without consent. Here are three ways as how AI may create an uncomfortable situation for women specifically in India :
Recognition Apps and harassment of women: Remember the time when Facebook suddenly
started asking for nude photos individuals for upgrading their own safety
system apparently for providing safety mechanisms for subscribers? This
project was intended to build up a safety mechanism against revenge porn with
the help of Artificial Intelligence. Facebook wanted to empower their
subscribers, especially women to report revenge porn. But before that, the
company wanted to ensure that the revenge porn content showcased the image that
belonged to the victim specifically. The facial recognition app, the skin
texture, hair color, biometric recognition technology would be matching both
the images (the nude picture of the victim and the revenge porn content created
by the perpetrator) and would be identifying the revenge porn content as illegal.
But this project received stern objections because there were more possibilities
of misuse of nude photos than positive use of the same. Facebook -Cambridge analytica
case did prove that nothing is impossible when it comes to preservation of data
by body-corporates and data of individuals is always profitable and the security
of the same is vulnerable. But this may
not seem to be as dangerous as misuse of Face App may seem to be . FaceApp is
basically used to change the face structure of the person whose photograph
would be used in this App. It can change the texture of the skin and density of
hair including facial hair. In July,
2019, FaceApp became the center of concern for Indian cyber security
stakeholders especially when several celebrities started using FaceApp and
started showcasing their changed faces on Instagram. While FaceApp was basically being used for
fun purposes, it may also throw challenges for data safety and security of
person concerned. FaceApp helps to change the structure of faces. But we should
not forget that the altered facial image can be saved in devices and cloud of
different individuals. This altered image may be used for several illegal
activities. Predators may unauthorizedly access the social media profiles and
change facial images of the victims to create fake profiles; they may also use
such images to create a completely new impersonating profile to harass women.
Altered facial images of women may also be used for revenge purposes especially
when the victim is looking for opportunities in the entertainment or
advertisement sector where her appearance may be considered as her biggest
asset. Apart from this, FaceApp may be used to attract bullies and trolls to
intensify victimization of women.
back the memory: No one, but the web companies clearly remember what we posted
in last summer. Every day social media companies would show what was posted by
the user a year back or a couple of years back and would gently remind the user
that he/she can share the said post as a memory. How does it happen? The web
companies look for algorithm and the highest likes and comments for posts on
daily or even hourly basis. When the posts earn more likes and comments, the AI
decides to bring it forth. In certain situations, such refreshing of memories
might not be ‘wanted’ at all especially when the victim might had a bitter
ending of the relationship with persons in the said image or the text in
question may no longer evoke good memories, but rather traumatize the victim
more. But machine intelligence does not fail the company: it is a matter of
consent and choice after all. But consider if the account is unauthorizedly accessed:
the hacker may get to know something from the past which the victim may never
wanted the hacker to know.
the user about best low prices : AI runs over the internet like blood vessels
carrying oxygen all over the body. When a user decides to compare prices of any
product or services, AI helps to share the same almost always on any platform
the user would be visiting. It might be extremely embarrassing for any woman if
such searches start showing results when she is surfing the social media or
even the search engine with a friend or another individual. Nothing is left by
the AI from prices of lipsticks, hotels at cheaper rate, flight details to last
watched videos on how to conceive. This might also make women face
discrimination, office bullying and harassment due to several reasons.
These are but some of the many ways as how AI may make
women to land in trouble. AI is necessarily connected with data privacy protection
policies of web companies. The EU General Data Protection Regulation, 2018
provides that personal data may not be processed without the consent of the
owner of the data.
But in this case, there can be legal tangles as web companies may claim that they do not breach the data
confidentiality or transfer the data to any other jurisdiction, neither they
process the data without proper authorization. Here, multiple stakeholders may
be involved which may include the original owner of the content or the picture
which may have been processed for the purpose of harassment : the perpetrator,
who may have carried out changes on the data using the AI supported Apps,
perpetrators who may have unauthorizedly
stored the altered contents, picture or information or may have used the
altered information, picture for creating impersonating profile etc. As per
Indian legal understanding, altering, modifying etc of contents/ information/ image
/images without proper authorization of the original owner of the information etc may attract penal provisions
under the Information Technology Act, 2000 (amended in 2008): these provisions
may include Ss 43 (Penalty and compensation for damage to computer, computer
system etc, ), 66 (computer related offences, 66C (punishment for identity
theft) and 66D (punishment by cheating by personation by using computer
resource etc. This may also attract penal provisions for Copy Right violation
as well. Further, the web companies may be narrowly be liable for protecting
data properly under several provisions including S.43A which speaks about body
corporates liability to protect data. But irrespective of existing provisions,
web companies may always escape the clutches of law due to due diligence clause
and on the question of consent expressly or impliedly provided by the woman
victim concerned. In the EU, courts are becoming more and more concerned about
policy violations by web companies to fool the users. In India too, the courts
must throw light on the web companies responsibility as data repository. Regulations
like Data protection Bill, 2018 must be considered with utmost care. These may
have the key to solve problems of online victimization of women.
Also, women users need to be extremely cautious about machine intelligence. Awareness must be spread about how the hidden ‘safety valves’ of the web companies (which may actually make the web companies more powerful against claims of lack of due diligence) may be used properly.
Often I have been asked by victims, stakeholders and students of law about the jurisdictions of the courts and court system as a whole under the Information Technology Act, 2000 (Amended in 2008). This query carries great significance especially at a time when subscribers, consumers and civil society members are facing numerous problems due to data theft, data diddling, and data leaking etc. by the body corporate, intermediary and service providers themselves. Such issues of piercing the veil of cyber security and data privacy due to inefficient data protection mechanism of the body corporate may in turn help individual predators and even criminal gangs to target individuals including women and children to make it a large scale offence. Let us consider the case of Facebook facial recognition case in the US : even though Facebook as a company has been strongly contesting the case, the federal appeals court has given a green signal for this class suit whereby Facebook can be prosecuted for infringement of data privacy and would be liable to pay a huge compensation to the petitioners. What we understand from here is, such cases in the field of cyber law, may be dealt by courts in the nature of civil cases as well as in the nature of criminal cases.
In India, the primary regulatory provision for cyber issues is the Information Technology Act, 2000(amended in 2008) (IT Act, 2000, amended in 2008). This provision indicates that there are two types of authorities and tribunals/courts who may handle cases in the nature of civil and criminal liabilities, i.e., civil and criminal court and tribunals . We may understand this typology by understanding the nature of the cases under the Information Technology Act first, which is as follows:
In the issue of civil nature of cases, the administrative tribunal system under the IT Act has three tiers.
As may be seen from the above flow chart, at the grass-root level is the Certifying Authorities. A licensed Certifying Authority (CA) who has been granted licence under S.24, issues the digital signature certificates. CAs are controlled by Controllers, who are appointed by central government under S.17 of the Act. This provision also mentions about the appointment deputy /assistant controllers who should work under the instructions of the Controller.
Functions and responsibilities of the controller can be discussed under three broader heads:
S.18 of the IT Act provides essential
functions of the Controller. Apart from S.18, there are certain other
provisions under the IT Act, which speaks about other responsibilities and
powers of the Controller. The functions
under S.18 are as under:
supervision over the activities of the Certifying Authorities;
public keys of the Certifying Authorities;
Laying down the standards to be maintained by
the Certifying Authorities;
the qualifications and experience which employees of the Certifying Authority
the conditions subject to which the Certifying Authorities shall conduct their
Specifying the contents of written, printed or
visual materials and advertisements that may be distributed or used in respect
of an Electronic Signature Certificate and the public key;
the form and content of an Electronic Signature Certificate and the key;
the form and manner in which accounts shall be maintained by the Certifying
Specifying the terms and conditions subject to
which auditors may be appointed and the remuneration to be paid to them;
Facilitating the establishment of any
electronic system by a Certifying Authority either solely or jointly with other
Certifying Authorities and regulation of such systems;
Specifying the manner in which the Certifying
Authorities shall conduct their dealings with the subscribers;
Resolving any conflict of interests between
the Certifying Authorities and the subscribers;
Laying down the duties of the Certifying
Maintaining a database containing the
disclosure record of every Certifying Authority containing such particulars as
may be specified by regulations, which shall be accessible to public.
As such, other than the functions
mentioned above, the Controller may also have the following powers and
Controller may also recognize the foreign certifying authorities with prior approval from the government under S.19.
Controller is the authority to suspend license of the CA in case of any discrepancies in the function of the CA under S.25
Controller has power investigate contraventions or authorize any officer to do the same under S.28.
Controller may also access to computer and data under S.29 if he has reasonable cause to suspect for any contravention of the provisions etc.
Apart from this, controller also
has powers for dispute resolution: As such, .controllers can take over matter
for regulating and resolving any conflict of interests between the Certifying Authorities
and the subscribers.
Adjudicators along with the
controllers form the second tier of tribunal system for civil nature of cases
under the IT Act. Adjudicating officers
are appointed by the Central Government under S.46 of the IT Act for holding inquiry
(in the manner prescribed by the Central Government) in cases where any person
has committed a contravention of any of the provisions of this Act or of any
rule, regulation, direction or order made thereunder which renders him liable
to pay penalty or compensation. Such officer should not be below the rank of a
Director to the Government of India or an equivalent officer of a State
Government.S.46 clearly mentions that no person shall be appointed as an
adjudicating officer unless he possesses such experience in the field of
Information Technology and legal or judicial experience as may be prescribed by
the Central Government. The adjudicating officer appointed under S.46(1) are empowered to exercise jurisdiction to
adjudicate matters in which the claim for injury or damage does not exceed
rupees five crore. In case the jurisdiction in respect of claim for injury or
damage exceeds Rs. five crore, the jurisdiction to try such cases then shall
vest with the competent court. Every adjudicating officer shall have the powers
of a civil court which are conferred on the Cyber Appellate Tribunal under
sub-section (2) of section 58. As such, all proceedings before the adjudicator (a)
shall be deemed to be judicial proceedings within the meaning of sections 193
and 228 of the Indian Penal Code; (b) shall be deemed to be a civil court for
the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973. And
(c) shall be deemed to be a Civil Court for purposes of order XXI of the Civil
Procedure Code, 1908
But, the adjudicating officer cannot
fix the quantum of punishment (especially fines, damages and compensation) at
his own whimsies and fancies. S.47 says while adjudging the quantum of
compensation under Chapter IX, the adjudicating officer shall have due regard
to the following three factors, namely –
amount of gain of unfair advantage, wherever quantifiable, made as a result of
amount of loss caused to any person as a result of the default;
repetitive nature of the default
As such, adjudicators are
responsible to handle cases of data infringement, unauthorised access to
computer, offences to the computer (of civil nature), and fraudulent data
leaking cases etc. under chapter IX of the IT Act.
At the top tier of the tribunals
for dealing with cases of civil nature under the Information Technology Act,
2000(amended in 2008) exists the Cyber Appellate Tribunal. S.48 of the
Information Technology Act, 2000 (amended in 2008) stated that the central
government shall by notification establish one or more appellate tribunals to
be known as Cyber Appellate Tribunal. However, it has been observed by several
cyber law practitioners that the Cyber Appellate Tribunals in some places in
India were not functioning properly. As such, since 2017 The Telecom Disputes
Settlement and Appellate Tribunal (TDSAT) established under section 14 of the Telecom
Regulatory Authority of India Act, 1997 (24 of 1997), (TRAI Act) has
substituted CAT & working as Appellate Tribunal for the purposes of IT Act.
It also exercises the jurisdiction, powers and authority conferred on it by or
under IT Act. The TDSAT shall consist of a Chairperson, and not more than two members to be appointed by the Central Government.
Prior to the coming into existence of TDSAT
within the meaning of Appellate tribunal under the IT Act, online High Court
judges could qualify to be appointed as Chairpersons of the cyber appellate tribunal as per S.50 of
the IT Act. However, presently as per S.4 of the TRAI Act, the Chairperson
and other members of the Authority shall be appointed by the Central
Government only if such candidate has special
knowledge of, and professional experience in, telecommunication, industry,
finance, accountancy, law, management or consumer affairs. Further, a person who is, or has been, in the
service of Government shall not be appointed as a member unless such person has
held the post of Secretary or Additional Secretary, or the post of Additional
Secretary and Secretary to the Government of India or any equivalent post in
the Central Government or the State Government for a period of not less than
three years (as per Proviso to S.4 of the TRAI Act). s. 57, IT Act,
2000(amended in 2008) speaks about the jurisdiction & limitations of the
Appellate authority , which to large extent is practiced by the TDSAT now.
According to S.57, any person aggrieved by an order made by controller or an
adjudicating officer under this Act may prefer an appeal to Appellate Tribunal
having jurisdiction in the matter. However, no appeal shall lie to the
Appellate Tribunal from an order made by an adjudicating officer with the
consent of the parties. Every appeal under 57(1) shall be filed within a period
of forty-five days from the date on which a copy of the order made by the
Controller or the adjudicating officer is received by the person aggrieved and
it shall be in such form and be accompanied by such fee as may be prescribed. Appellate
Tribunal may entertain an appeal after the expiry of the said period of
forty-five days if it is satisfied that there was sufficient cause for not
filing it within that period.
Court for dispute resolution of criminal nature: Information
Technology Act, 2000(amended in 2008) does not specifically mention about any
court which may handle cases of criminal nature under this Act. But S.77A of
the Information Technology Act is mentionable here, which speaks about
compounding of offences According to S.77A of the IT Act, 2000(amended
in 2008), a court of competent jurisdiction may compound offences, other than
offences for which the IT Act provides punishment for life or imprisonment for
a term exceeding three years. As per
S.77A, the court however, shall not compound offences falling under the
categories as below:
the accused is, by reason of his previous conviction, liable to either enhanced
punishment or to a punishment of a different kind:
such offence affects the socio economic conditions of the country.
Has been committed against a child below the
age of 18 years or a woman.
the IT Act states that a person accused
of an offence under this Act may file an application for compounding in the
court in which offence is pending for trial and the provisions of sections 265B
and 265C of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply. From
the above discussion, it may be inferred that any competent criminal court
under Cr.P.C which are competent to handle cases involving offences and punishments
as has been prescribed under Chapter XI under the IT Act, may be considered as
competent court for the purpose of this Act. Now, the question which may arise
is, which criminal courts may handle cases of criminal nature under IT Act,
2000 (amended in 2008). For this, we may need to understand the patterns of
punishments under Chapter XI of the IT Act, 2000 (amended in 2008). These can
be listed as below:
Imprisonment for a term which may extend to two
years, or with fine which may extend to one lakh rupees, or with both.
Imprisonment of either description for a term
which may extend to three years or with fine which may extend to rupees one
lakh or with both
Imprisonment of either description for a term
which may extend to three years and shall also be liable to fine which may
extend to rupees one lakh.
Imprisonment which may extend to three years or
with fine not exceeding two lakh rupees, or with both
Imprisonment up to three years, or with fine
which may extend up to two lakh rupees, or with both.
Imprisonment for a term which may extend to
three years or with fine which may extend to five lakh rupees or with both.
Imprisonment extending to imprisonment for life.
Imprisonment in first conviction of either
description for a term which may extend to three years and with fine which may
extend to five lakh rupees and in the event of second or subsequent conviction
with imprisonment of either description for a term which may extend to five
years and also with fine which may extend to ten lakh rupees.
On first conviction with imprisonment of either
description for a term which may extend to five years and with fine which may
extend to ten lakh rupees and in the event of second or subsequent conviction
with imprisonment of either description for a term which may extend to seven
years and also with fine which may extend to ten lakh rupees
Now, to find the answer as which court may try cases of criminal nature under the IT Act, the above mentioned list has to be matched with the powers of various criminal courts under Ss.28 & 29 of Cr.P.C. The powers of the courts under the Cr.P.C can thus be categorized as follows:
As such it may be understood that cybercrimes and offences recognised under Chapter XI with various degrees of punishment may be dealt by various criminal courts as has been discussed under Ss.28 and 29 of the Criminal Procedure Code. But, in such cases also, the aggrieved party (including the offender) may make an appeal to the appropriate courts including the Session’s court, High Court and also to Supreme court. However, in case the offence includes any offence targeting children, then along with Information Technology Act, 2000(amended in 2008), provisions of Protection of Children from sexual offences Act may also be applied. In such cases, the offence may necessarily be dealt with by courts designated under POCSO Act : such courts may be Special Court or Children’s Court or the Sessions court itself.
Note: Please do not violate the copyright of this writeup. If you wish to use this writeup for your report/assignment/project etc, please refer it as Halder Debarati (2019) Court system under Information Technology Act, 2000 (amended in 2008). Published in http://www.internetlegalstudies.com on 12-08-2019
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