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Cyber Laws for Every Netizen in India Naavi 1 Cyber Laws For Every Netizen in India (Version 2004) (With WSIS Declaration of Principles and Action Plan) Naavi Na.Vijayashankar MSc.,CAIIB,CIIF,AIMADM E-Business Consultant and Founder www.naavi.org , www.cyberlawcollege.com Published By Ujvala Consultants Pvt Ltd Admn Office: 11/10, R E Apartments, Unnamalai Ammal Street, T.Nagar Chennai-600017 E-Mail: [email protected]: Phone/Fax 044-28143448 January 2004 ©Naavi 2 January 2004 ©Naavi 3 Cyber Laws For Every Netizen in India (Version 2004) (With WSIS Declaration of Principles and Action Plan) Naavi Na.Vijayashankar MSc.,CAIIB,CIIF,AIMADM E-Business Consultant and Founder www.naavi.org , www.cyberlawcollege.com Published By Ujvala Consultants Pvt Ltd Admn Office: 11/10, R E Apartments, Unnamalai Ammal Street, T.Nagar Chennai-600017 E-Mail: [email protected]: Phone/Fax 044-28143448 January 2004 ©Naavi 4 Published by Ujvala Consultants Pvt Ltd, 2003 Administrative Office: 11/10, R.E.Apartments Unnamalai Ammal Street T.Nagar Chennai-600017 E-Mail: [email protected] All Rights Reserved ©Naavi 2004 This work is based on the experience and views of the author which is to the best of his knowledge and belief correct and accurate at the time of writing. The opinion expressed herein will not however constitute legal advice and the author or the publisher is not responsible or liable for any actions of the readers based on the material contained in the book. January 2004 ©Naavi 5 Index Chapter Title Page Preface 7 Chapter I Introduction 13 Chapter II The Internet Era 22 Chapter III Electronic Document 37 Chapter IV Digital Signature 52 Chapter V Digital Identity Management 72 Chapter VI Business of Certifying Authorities 89 Chapter VII Digital Contracts 99 Chapter VIII Cyber Regulatory Structure 112 Chapter IX Cyber Crimes 121 Chapter X Intellectual Property Issues 155 Chapter XI Network Service Providers 186 Chapter XII Privacy and Personal Rights 199 Chapter XIII Law Enforcement Issues 240 Chapter XIV E Governance Issues 249 Chapter XV Semi Conductor Act 303 Chapter XVI Communication Convergence Bill 308 Chapter XVII Business Opportunities in Cyber Law 341 Chapter XVIII Legal Issues in Cyber Advertising 349 Chapter XIX Legal Issues in Cyber Banking 371 Chapter XX Legal Issues in Emerging Technologies 393 Chapter XXI Legal Issues in Cyber Taxation 406 Chapter XXII Cyber Wars and Cyber Terrorism 416 Chapter XXIII Cyber Law Compliancy, The Need of the 431 Hour Chapter XXIV Information System Security Audit 442 Chapter XXV FAQ 457 January 2004 ©Naavi 6 January 2004 ©Naavi 7 PREFACE Ever since a legal framework for the Cyber World was conceived in India, in the form of a draft E-Commerce Act 1998, the subject of Cyber Laws has fascinated me. Afterwards, the basic law for the Cyber space transactions in India has emerged in the form of the Information Technology Act 2000. It has further been supplemented with the Semi Conductor Integrated Circuits Layout Act. We are presently on the threshold of another major Cyber Regulation being passed in the form of the Communication Convergence Act. The scope of Cyber Laws has therefore expanded more rapidly than what many considered possible in India given its huge rural population with low technology base. The features of Cyber Law that attracts E-Business Professionals like me are , 1. The close integration of technology in various aspects of law. 2. The dynamic nature of the evolving law and 3. The relative freshness of the Cyber Society where the fundamental principles of jurisprudence are yet to be developed. These characteristics of Cyber Law are however also responsible for the discomfort those traditional legal professionals feel in studying this branch of law. Firstly, the technology part of the law makes Cyber Law, a subject which cannot be understood without at least a small dose of technology input into the learning. January 2004 ©Naavi 8 Secondly, the rapidly changing nature of the law is unnerving for the legal practitioner since the law seems to acquire new meaning with each succeeding new Act and each new judicial decision some where in the world. Cyber Law has therefore emerged as a field of study for a new crop of professionals who may be called Techno-Legal specialists. In India, the present educational system is such that a Technology student has no exposure to Law and a Law student has no exposure to Technology. Hence a Computer science student in a College is taught how to develop programs that can automatically transmit data across the Internet riding on a TCP/IP packet, without alerting him on cyber crimes such as Hacking or Virus introduction. The Law students on the other hand are taught about Trade Marks and Copyrights without recognizing their implications on the Electronic documents. As a result, neither the Technologist nor the Lawyer is trained in his formative years to understand Cyber Law. I therefore felt that there was a need for techno-legal experts to de-mystify Cyber Law and make it possible for a large section of the society take up study of Cyber Law. It is envisaged that in future, Engineering, Commerce and Management Colleges will teach Cyber Law as an extension of Computer Science, Commerce and Management Education, even while the Law Colleges try to extend their coverage of Criminal Laws and IPR laws to the Cyber world. The advent of Techno-Legal specialists will bring a change in the legal perspective in the country and we can expect that fresh ideas would emerge and form the building blocks for the development of Cyber Jurisprudence as a distinct field of study. January 2004 ©Naavi 9 This book recognizes such a development and analyses different pieces of Cyber Legislation from a perspective that encourages debate rather than prescription. The good reception received for my earlier book “Cyber Laws For Every Netizen in India” released in December 1999 which happened to be the first book on the subject of Cyber Laws to be published in India encouraged me to release the first E-Book on Cyber Laws entitled “Cyber Laws in India..ITA-2000 and Beyond” in May 2003. Since the release of the E-Book, there have been further changes in the Cyber Laws applicable to India. This Book expands the content to the area of Cyber Security Audit with an exclusive chapter devoted to this subject which is of interest to the Chartered Accountants and Cyber Security professionals. Yet another chapter that has been added is the Legal Issues in “Cyber Journalism” which focusses on the issues of Cyber Laws as applicable to Journalists. As in the previous editions, the main objective of this book also is to serve the mission to spread Cyber Law Literacy. The goal is to reach as many of the professionals as possible not only in the Legal sector, but also in the Technology sector and Corporate Management sector. Since, in future, “There is No Business Without E-Business”, there will be no room for any corporate professional without a basic understanding of “Cyber Laws”. Hence Cyber Law literacy amongst professionals such as Chartered Accountants, Company Secretaries, Bankers, Insurance professionals, Law Enforcement January 2004 ©Naavi 10 officers, and E-Governance officials is as essential as the study of Company Law or Contract Law. This book goes much beyond the Information Technology Act 2000 in discussing Cyber Laws as applicable in India. Cyber Squatting, Copyright Infringement and Patent Issues have been discussed in this book to the extent required. Elements of Semi Conductor Integrated Circuit Layout Designs Act which is yet to be notified is also discussed considering it’s importance. A chapter has been devoted in the book on the Communication Convergence Act. Though the Communication Convergence Bill has presently been withdrawn from the Parliament, in view of the conceptual importance of this legislation and the possibility of its re-introduction with some modifications, the chapter has been retained. The consequences of the recent amendments to the Negotiable Instruments Act 1881 through Negotiable Instruments Amendment Act 2002 have also been incorporated in appropriate places in the book. Chapters on Privacy, E-Governance and Law Enforcement issues add up the comprehensiveness of this book. Additionally there was a very significant Global development that took place in December 2003 which has transformed the future direction of the Cyber Society and the regulations that go with it. This refers to the World Summit on Information Society (WSIS) which was held in Geneva between December 10 to December 12, 2003. During this summit the representatives of all member January 2004 ©Naavi 11 states of the United Nations Organizations have discussed the possible role of the sovereign Government states in the Information Society Management and adopted a “ Declaration of Principles” and agreed to set up a working group to take the issue further for discussion in more concrete terms in the Tunisia summit in 2005. The historical imprint that this development creates cannot be lost sight of and a brief discussion on the same is included in this book. The need to keep the book simple but yet cover a larger canvass has prompted me to add portions at the end of some of the chapters that stand out as independent articles. Some of them reflect the thoughts expressed by me in the website http://www.naavi.org in my humble opinion, add to the clarification of some of the points covered elsewhere in the book without disturbing the flow of discussions. Maintaining the non legal style of the Book, as well as recognizing the evolving nature of the law, and also the lack of sufficient number of India specific cases, emphasis on Case Laws has been deliberately underplayed in the book.
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