IT LAW NOTES

1.1 Cyberspace and information technology; overview of computer and web technology.
Section 2(1)(i) of the Act defines 'computer' in the following words:- "computer" means any
electronic, magnetic, optical or other high-speed data processing device or system which
performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic
or optical impulses, and includes all input, output, processing, storage, computer software, or
communication facilities which are connected or related to the computer in a computer
system or computer network.
The Act has comprehensively defined a computer and by using the expression 'means'
immediately after the word 'computer', the legislature has made it clear that the definition is
exhaustive and no other meaning can be assigned to the expression other than what is
included in the definition."
Therefore, a 'computer' is:
(i) Any electronic, magnetic, optical or other device or system;
(ii) Having high-speed data processing capability; and
(iii) Performing logical, arithmetic and memory functions by manipulation of electronic,
magnetic or optical impulses.
The first two elements relates to the nature of the device or system in question, whereas, the
last element deals with the functionality of the device or system.
The definition further provides that computer includes all input, output, processing, storage,
computer software and communication facilities which are connected or related to the
computer in a computer system or computer network, for example:
(i) Input devices such as a keyboard, mouse, joystick, camera and microphone;
(ii) Output devices such as a monitor, printer and speakers;
(iii) Storage devices such as a hard disk or a USB drive;
(iv) Software such as the operating system and other applications; and
(v) Communication facilities such as modem and Bluetooth connector.
Is smartphone mobile a computer?;
A smartphone squarely falls within the definition of a 'computer'. Smartphones are devices
combining the communication capabilities of a cell phone with the computing capabilities of
a computer.
A smartphone comprises of an input facility (the keypad or touchscreen), an output facility
(the screen), memory storage (memory card as well as internal storage), and a Central
Processing Unit. The smartphone is capable of performing almost any function which can be
performed by a computer, including information storage, internet access, e-mails, audio and
video applications and GPS functions, in addition to the standard communication functions of
a cellphone such as making calls and texting.
Having the ability to perform almost every function as a computer, a smartphone is also
susceptible to the same offences as a computer, such as hacking or contamination by viruses.
In addition, a smartphone can also be used for committing the same offences which can be
committed using a computer.
Syed Asifuddin & Ors. v. State of Andhra Pradesh
(Meaning of a Computer - Cell phone is covered within the ambit of a computer as defined
under the Information Technology Act, 2000)
Facts: The crime was registered against the petitioners on a complaint given by the Head of
Sales and Marketing Wing of M/s. Reliance Infocomm Ltd., Hyderabad, the second
respondent herein. In the complaint, it is alleged that certain vested elements of the trade of
mobile telephone services began to woo the subscribers of Reliance India Mobile (RIM) into
various other schemes promoted by other similar service providers, which would have the
impact on the image as well as the revenues of the second respondent. Investigation revealed
that all the handsets of Reliance India Mobile were being migrated to TATA Indicom network
at the behest of TATA Indicom staff members. It was revealed that the Petitioners were staff
members of TATA Indicom, were tampering with the devices through dubious means to
highjack the customers of Reliance Infocomm. An F.I.R. was registered under sections 409,
420 and 120B of Indian Penal Code, 1860; section 65 of the Information Technology Act,
2000; and section 63 of the Copyright Act, 1957. The petitioners sought to quash criminal
charges against them through these petitions under section 482 of Cr.P.C., 1973. written
Issue: Whether a cell phone handset is a computer under section 2(1)(i) of the Information
Technology Act, 2000 or not?
Decision: In this case, Hon'ble Andhra Pradesh High Court held that a joint reading of clauses
(i), (j) and (1) of section 2(1) of the Information Technology Act, 2000 would show that any
electronic, magnetic or optical device used for storage of information received through
satellite, microwave or other communication media and the devices which are programmable
and capable of retrieving any information by manipulations of electronic, magnetic or optical
impulses is a computer which can be used as computer system in a computer network.
Every cell phone contains a circuit board, which is the brain of the phone. It is a combination
of several computer chips programmed to convert analog to digital and digital to analog
conversion and translation of the outgoing audio signals and incoming signals. There is a
micro- processor similar to the one generally used in the compact disk of a desktop computer.
Without the circuit board, cell phone instrument cannot function. Therefore, it is not possible
to accept the submission that a cell phone is not a computer. Even by the very definition of
the computer and computer network as defined in IT Act, a cell a computer which is
programmed to do among others the function phone is of receiving digital audio signals,
convert it into analog audio signal and also send analog audio signals in a digital form
externally by wireless technology. Hence, cell phone handset would be covered by the
definition of a computer under section 2(1)(i) of the Information Technology Act, 2000.
Is an ATM a Computer System?:
An Automatic Teller Machine or an ATM is a machine which disburses cash and issues
statement of account without the need for a human teller. An ATM consists broadly of a (i)
computer (i.e., Mother Board with the processor), (ii) computer peripherals, such as RAM,
drives, key board, monitor, mouse and software,, (iii) a communication facility to connect
with the bank server, and (iv) other apparatus for counting, collecting and dispensing cash
and performing teller related functions. It is this aspect that brings a level of complexity in
categorizing an ATM as a Computer/Computer System.
The question, whether an ATM is a computer has been considered by the Karnataka High
Court in the case of Diebold Systems Pvt. Ltd. v. The Commissioner of Commercial Taxes,
(2006) 144 STC 59 (Kar), where it held that an ATM is not a computer by itself, but, instead
is connected to a computer that performs the tasks requested by the person using ATMs. It
further held that the computer is connected electronically to too many ATMs that may be
located at some distance from the computer. Further, it held that in common parlance, an
ATM is understood to be an electronic device and therefore, the ATM must be taxed as such
and not as a computer.
Computer Network [Section 2(1)(j)]

Section 2(1)(j) of the Act defines "computer network" in the following words:-

"computer network" means the interconnection of one or more computers or computer

systems or communication device through:

(i) the use of satellite, microwave, terrestrial line or other communication media; and (ii)
terminals or a complex consisting of two or more interconnected computers whether or not
the interconnection is continuously maintained. A computer network facilitates exchange of
data or resources between the connected computers and related devices. The examples of a
computer network falling under section 2(1)(j)(i) are: internet, satellite phones, mobile i-
phone, net telephony, etc. The examples of section 2(1)()(ii) of a computer network are:
Local Area Network (LAN), Wide Area Network (WAN), Wireless Fidelity (Wi-Fi) etc.

Computer Resource [Section 2(1)(k)]

Section 2(1)(k) of the Act defines "Computer Resource" in the following words:-

"computer resource" means computer, computer system, computer network, data, computer
database or software. Thus, Computer Resource is a collective term for the following:

(i) A "Computer", defined under section 2(1)(i), (ii) A "Computer System", defined under
section 2(1)(1),

(iii) A "Computer Network", defined under section 2(1)(j).

(iv) "Data", defined under section 2(1)(0),

(v) "Software", which has not been defined under the IT Act, and

(vi) "Computer Database", which is defined under Explanation (ii) of section 43.

"Computer Database means a representation of information, knowledge, facts, concepts or

instructions in text, image, audio, video that are being prepared or have been prepared in a
formalised manner or have been produced by a computer, computer system or computer
network and are intended for use in a computer, computer system or computer network."

The definition of 'computer resource' under the Act is exhaustive. It includes both hardware
and software of a computer, computer system and computer network because a computer
without an software, like windows cannot function effectively. operating

Computer System [Section 2(1)(1)]

Section 2(1)(1) of the Act defines "Computer System" in the following words:-

"computer system" means a device or collection of devices, including input and output
support devices and excluding calculators which are not programmable and capable of being
used in conjunction with external files, which contain computer programmes, electronic
instructions, input data and output data, that performs logic, arithmetic, data storage and
retrieval, communication control and other functions.

The key elements of a 'computer system' are:

(i) A device or collection of devices;

(ii) Including input and output support devices, but excluding calculators which are not
programmable and capable of being used in conjunction with external files;

(iii) Which contain computer programmes, electronic instructions, input data and output data;
and

(iv) Which perform logic, arithmetic, data storage and retrieval, communication control and
other functions.

However calculators, which are not programmable, have been excluded from the scope of the
definition of computer system.

The definition of Computer System is more expansive than that of a 'computer'.

Communication Device [Section 2(1)(ha)]

Section 2(1)(ha) inserted by the Information Technology (Amendment) Act, 2008 (the
"Amendment Act") defines 'communication device' in the following words:-

"Communication Device" means Cell Phones, Personal Digital Assistance (Sic), or

combination of both or any other device used to communicate, send or transmit any text,
video, audio, or image. From the above definition it is clear that certain Communication
Devices such as smartphones possess the capability of, and qualify as, a Computer. Thus, all
contraventions and offences that apply only to a Computer and not specifically to a
Communication Device will apply to a smartphone, but, not to an ordinary phone. However,
the IT Act provides that the following offences may be committed through a Computer as
well as a Communication Device:

i) Dishonestly receiving stolen computer device (Section 66B),

ii) Cheating by personation (Section 66D).

On the other hand, certain offences under the IT Act, such as identity theft (Section 66C),
violation of privacy (Section 66E), publishing or transmitting obscene material (Section 67),
publishing or transmitting of material containing sexually explicit act, etc. in electronic form
(Section 67A) and punishment for publishing or transmitting of material depicting children in
sexually explicit act, etc. in electronic form (Section 67B) are device-neutral. The Act does
not prescribe any particular devices to which such offences would apply. Therefore, such
offences could potentially be committed using any Communication Device. For example,
section 66E of the IT Act, which deals with the violation of privacy, punishes the capturing,
publishing or transmitting of an image that violates a person's privacy. The device which is
used to transmit the image is immaterial. The mere act of transmission is punishable. On the
other hand, section 43 and 66 of the IT Act, which deals with crimes such as unauthorised
access and hacking apply only to a computer, computer system or a computer resource. These
sections do not refer to a Communication Device, and therefore, the unauthorised access or
hacking of a Communication Device will not be an offence under this section.

Diebold Assistance vs CIT

 Background
An important question as to whether an Automated Teller Machines(ATM) can be termed as
a computer came up before the courts in this case. In the state of Karnataka under state tax
law, electronic goods were taxed at rate of 12% while computer terminals were taxed at 4%.
The question was at what rate will an ATM be taxed and under what schedule of the state tax
law will it fall. Whether an ATM is an electronic good or a computer terminal was needed to
be clarified by the court so as to decide what will be the tax that Diebold Systems will be
liable to pay

 Facts
This case came up before the Karnataka High Court as an appeal. The appellants in this case,
which is Diebold Pvt Ltd is a company engaged in the manufacture and supply of Automated
teller machines(ATM). The Company in order to clarify the rate of tax that is applicable on
the sale of ATM approached the Advance Ruling Authority which was constituted under the
Karnataka Sales Tax Act, 1957. Diebold Systems filed an application in Form 54 as provided
under Rule 27-E (1) of the Karnataka Sales Tax Rules, 1957. As a result, the company had
appeared before the authority and made had their submissions as to the facts, literature, and
description of the ATM. Appearing for the company was Sri Mohan Mudkavi the learned
Chartered Accountant along with the Vice-President of the Company.

The judgment of the Advance Ruling Authority

The majority view of the ARA was to classify ATMs as "computer terminals" liable for 4%
basic tax as they would fall under Entry 20(ii)(b) of Part 'C' of Second Schedule to the
Karnataka Sales Tax Act. However, The Chairman of the ARA dissented from the majority
view. In his opinion, ATMs would fit into the description of electronic goods, parts, and
accessories thereof. They would thus attract the basic rate of tax of 12% and would fall under
Entry 4 of Part 'E' of the Second Schedule to the KST Act.

 Order by Commissioner of Commercial Tax

The Commissioner of Commercial Taxes being of the view, that the authority for clarification
and Advance Ruling has erroneously classified ATM's as "computer terminals" and thereby
has caused prejudice to the interest of the revenue, therefore it initiated suo-moto revisional
proceedings under Section 22-A(1) of the Act by issuing a show-cause notice directing the
appellant company Diebold Systems to show cause, why the order passed by the Authority
for clarification and Advance Ruling should not be set aside and the 'goods' in question
should not be treated as "electronic goods". The Commissioner of Commercial Taxes, after
considering the reply filed by the appellant company passed an order that ATMs cannot be
classified as computer terminals. Aggrieved by the aforesaid order passed by
the Commissioner of Commercial Taxes, the appellant company is before the High Court in
this appeal filed under Section 24(1) of the KST Act.

 Issue before the court

Is ATM a computer and whether it would fall under Entry 20(i) of Part 'C of Second
Schedule to the Act?

 Submissions before the High Court

The main submission before the authority by Diebold systems was that ATM is a
combination of a computer and it runs on a processor and the purpose for which it is put to
use is to dispense with cash to people and therefore, had requested the Authority to classify
ATM's as goods falling under Entry 20 of Part 'C' of the Second Schedule to the Act which
consists of a list of entries with main head Computers of all kinds and peripherals and not
Electronic goods falling under Entry 4 of Part 'E' of Second Schedule to the Act.

While the contention of Commissioner of Commercial Tax was that an ATM is not a
computer by itself. It is connected to a computer that performs the tasks requested by the
person using the ATM. The computer is connected electronically to many ATM's that may be
located some distance from the computer.

 Judgement
ATM is the acronym for Automated Teller Machine. this machine has a data terminal with
two inputs and four output devices. The ATM connects to and communicates with a host
processor that is analogous to an Internet Service provider. Then as a way of supporting the
Machine to the host processor, dial-up or leased lines are used. With the dial-up, the Machine
would dial into the host processor, using a standard telephone line and modem. With the
leased line. The machine is connected through the host processor through what is called a
four-wire, point to point, dedicated telephone line. The ATM does not have many parts; there
is a card reader, which is what captures a person's account information that is stored on the
magnetic strip located on the back of the ATM/debit card. This information is actually used
by the host processor in routing the transaction to the appropriate bank. Then it has a
'Keypad', which is used by the cardholder to tell the machine what type of transaction is
needed. It has an 'electric eye' that is used for the cash dispensing mechanism. In addition to
the eye, the ATM has a 'sensor that is capable of evaluating the thickness of each of the bills
being dispensed.

Coming to the Karnataka Sales Tax Act, it is clear that the Act is a taxing statute and the
Schedule to an Act is very much part of fiscal enactment. It is enacted by the hand of the
Legislature. The Schedule in an Act sets down things and objects and contains their names
and descriptions. The expressions in the Schedule have no evocative function. They can
neither enlarge nor cut down the meanings or articles or things specifically named in the
list. Therefore, the enlarged definition of "computers" in the Information Technology Act
cannot be made use of interpreting an Entry under fiscal legislation.

An Automatic Teller Machine is an electronic device, which allows a bank's customer to

make cash withdrawals, and check their account balances at any time without the need of
human teller. ATM is not a computer by itself and it is connected to a computer that performs
the tasks requested by the person using ATMs. The computer is connected electronically to
many ATM's that may be located from some distance from the computer. As a result, the
appeal fails, and accordingly, it is rejected.

1.2 Defining cyber space and its components

Meaning of Cyberspace

The computer's ability to share data with other computers over a network has led to the
concept of 'cyber space'. Conventionally cyberspace means and includes anything interlinked
with the internet and the diverse internet culture. The New Oxford Dictionary defines
cyberspace as "The notional environment in which communication over computer networks
occurs." According to National Cyber Security Policy, 2013, the interactions between people,
software and services which are supported by internet or worldwide distribution of networks
and 'information and communication technology' (ICT) devices, such a complex environment
is called cyberspace.
According to Gibson, cyber space' refers to that imaginary space which is created by
computers when they communicate. 'Cyber space' is thus an abstract concept or virtual space
created by the interconnectivity of computers by wire or wireless mode under which
information is disseminated across the world without any barrier is often referred to as
"Cyber Space"
The word 'cyber space' was not known to the world until 1984 when William Gibson used the
word 'cyber' in his science fiction novel, Neuromancer?
The term "Cyber Space" is also referred to as the 'Information Highway and has emerged as
the fifth domain after land, air, sea, and space. Cyber space cannot be spatially located. It is
made up of intangible objects, such as website, blog, social networks, e-mail accounts,
personal information and reputation. So, Cyber space can be thought of as an electronic
village with instantaneous communication and no geographical barriers. Thus, cyberspace is a
space without frontiers, offering infinite opportunity and utility for the mankind. Indeed,
under cyberspace the world has become a global vilage and to quote Bill Gates, "a global
republic" and no section of humanity anywhere in the world would be immune to its far-
reaching impact. Thus, cyberspace has no geographical boundaries and is borderless and
lacks any territorial jurisdiction. Therefore, the cyberspace is a concept of recent origin and
evolving everyday with the development of sophisticated technology in the form of software
and hardware.
From the above discussion, it is clear that "Cyber space is a complex environment resulting
from the interaction of people, software, hardware and services on the internet supported by
communication technology, devices and connectivity resulting in distribution of information
worldwide. In the recent years the web media and social media have emerged as one of the
important public communication channels. It brings social groups together in one virtual
place and enables interaction in real time. Owing to numerous benefits brought about by
technological advancements, cyberspace is a common tool used by citizens, civil society,
business and Governments for communication and dissemination of information.
Cyberspace has unique and distinct characteristics compared to the physical space. The cyber
space is virtual, borderless and offers complete autonomy. Anyone can post his/her
comments/views on social networking websites. Messages/communications can be made
from one to-one, one-to-many, many-to-one and many-to-many persons/devices spread out
all across the globe. These services offer great advantage in accessing and posting
information and expressing views in ones day to day life. However, cyber space also has the
potential to be misused for variety of purposes such as spreading hate mails, posting
inflammatory, harmful and offensive information in the form of images, videos, photos and
text.
Cyberspace is the total interconnectedness of human beings through computers and
telecommunication without regard to physical geography. Cyberspace is a realm in which
communication and interaction between two individuals or between an individual and a
computer is facilitated by digital data exchanged over computer networks.
Cyberspace is a global and dynamic domain (subject to constant change) characterized by the
combined use of electrons and the electromagnetic spectrum, whose purpose is to create,
store, modify, exchange, share, and extract, use, eliminate information and disrupt physical
resources.

Scope and Regulation of Cyberspace

Human activities in the age of digitization have increasingly become dependent on

technology, especially information technology. The Internet and the plexus of computer
networks provide an instantaneous means of exchanging and accessing information around
the globe, transcending national and geo-political boundaries.
The cyberspace is a virtual space within which communications and transactions are
concluded electronically. Apart from having a borderless and intangible character, cyberspace
is also intangible in its scope and is expanding exponentially in its size, wealth and political
importance. This 'space' enables people to interact with one another, exchange information,
share valuable data and ideas, entertain people, communicate via e-mail, voice mail and
conduct activities that are both legitimate and illegitimate in nature.
Cyberspace provides a platform for a wide range of human activities which is facilitated by
the Internet. Internet is increasingly being used for communication, commerce, advertising,
banking, education, research, and entertainment. The internet has invaded every aspect of
human life. It has something to offer to everybody and in the process it only increases and
never diminishes in its reach. As more and more people use the cyberspace for various
activities, there is a need to regulate the cyberspace. The laws which regulate the use of
cyberspace are termed as cyber laws.
Need for Cyber Law
In today's techno-savvy environment, the world is becoming more and more digitally
sophisticated and so are the crimes. Initially the Internet was developed as a research and
information sharing tool. With the passage of time it became more transactional with e-
business, e-commerce, e-governance and e-procurement etc. Further, with globalisation of
business legal issues also started to arose; However it was felt that all legal issues related to
internet crime cannot be tackled through conventional legal framework due to following
reasons:-
1. Cyberspace has an intangible dimension that is impossible to govern and regulate using
conventional law.
2. Cyberspace has complete disregard for jurisdictional boundaries. A person in India can
break into a bank's electronic vault hosted on a computer in USA and transfer millions of
Rupees to another bank in Switzerland, all within minutes. All he needs is a laptop computer
and a cell phone.
3. Cyberspace handles enormous volume of traffic every second. Billions of e-mails are criss-
crossing the globe even as we read this, millions of websites are being accessed every minute
and billions of dollars are electronically transferred around the world by banks every day.
4. Cyberspace offers enormous potential for anonymity to its users. Readily available
encryption software and steganography tools that seamlessly hide information within image
and sound files ensure the confidentiality of information exchanged between cyber-citizens.
5. Cyber crime cases such as online banking frauds, online share trading fraud, source code
theft, credit card fraud, tax evasion, virus attacks, cyber sabotage, phishing attacks, e-mail
hijacking, denial of service, hacking, pornography etc., are becoming common.
6. Digital signatures and e-contracts are fast replacing conventional methods of transacting
business.
7. Even in "non-cyber crime" cases, important evidence is found in computers/cell phones
e.g., in cases of divorce, murder, kidnapping, tax evasion, organized crime, terrorist
operations, counterfiet currency etc.
Therefore, the problems and challenges posed by cyberspace can be effectively tackled by
framing a robust and effective body of laws, commonly known as cyber laws.
Cyberspace includes:
a) physical infrastructures and telecommunications devices that allow for the connection of
technological and communication system networks, understood in the broadest sense
(SCADA devices, smartphones/tablets, computers, servers, etc.);
b) computer systems and the related (sometimes embedded) software that guarantee the
domain's basic operational functioning and connectivity;
c) networks between computer systems;
d) networks of networks that connect computer systems (the distinction between networks
and networks of networks is mainly organizational);
e) the access nodes of users and intermediaries routing nodes;
f) constituent data (or resident data).
Often, in common parlance (and sometimes in commercial language), networks of networks
are called the Internet which can be considered a part of the system. A distinctive and
constitutive feature of cyberspace is that no central entity exercises control over all the
networks that make up this new domain. Just as in the real world there is no world
government, cyberspace lacks an institutionally predefined hierarchical centre.
Cyberspace can be divided into a multi-layer model comprised of:
1. Physical foundations: such as land and submarine cables, and satellites that pro-vide
communication pathways, along with routers that direct information to its destination.
2. Logical building blocks: including software such as smartphone apps, operating systems,
or web browsers, which allow the physical foundations to function and communicate.
3. Information: that transits cyberspace, such as social media posts, texts, financial transfers
or video downloads. Before and after transit, this information is often stored on (and modified
by) computers and mobile devices, or public or private cloud storage services.
4. People: that manipulate information, communicate, and design the physical and logical
components of cyberspace.
1.3 Regulations for cyberspace; Issues and Challenges
Need for regulation of cyberspace
1) The most visible and readily sensational concern is about the use of internet particularly
for the distribution of obscene, indecent and pornographic content. The use of internet for
child pornography and child sexual abuse and the relative ease with which the same may be
accessed calls for strict regulation.
2) The challenge that Cyberspace is posing to traditional notions of jurisdiction and
regulation is another factor. The increasing business transaction from tangible assets to
intangible assets like Intellectual Property has converted Cyberspace from being a mere info
space into important commercial space. The attempt to extend and then protect intellectual
property rights online will drive much of the regulatory agenda and produce many technical
methods of enforcement.
3) With the inventions of new technologies, the media has enhanced the possibility of
invasion of the privacy of individual and bringing it into the public domain. The major area
of concern where some sort of regulation is desirable is data protection and data privacy so
that industry, public administrators, netizens, and academics can have confidence as on-line
user.
4) Encryption is the process of converting a message or document into a form which hides the
content of the communication from the eyes of an eavesdropping third party and needs to be
decrypted if its content is to be read. New cryptographic techniques (cryptography is the
process used to encode/encrypt electronic information) are commonly cracked in a relatively
short time by computational force or by other analytical means. Therefore, another area in
which regulation has assumed importance is in the debate over whether the public should be
permitted to use ‘cryptography’ or not.
5) Internet has emerged as the ‘media of the people’ as the internet spreads fast there were
changes in the press environment that was centered on mass media. Unlike as in the
established press, there is no editor in the Internet. In the press and publication environment,
editors check the truthfulness of facts and circulate them once the artistic values are
confirmed. On the internet however, people themselves produce and circulate what they want
to say and this direct way of communication on internet has caused many social debates.
Therefore, the future of Cyberspace content demands the reconciliation of the two views of
freedom of expression and concern for community standard.
Current Challenges in Cyber Law
The technological development has given rise to a virtual cyber world which constitutes the
cyberspace. Cyberspace is witnessing considerable advancement with the rapid increase in
information technology. The internet users are increasing exponentially every year and at the
same time there is also a rise in the number of people using mobiles and smart phones.
Cyber law is likely to experience various emerging trends with the increased usage of digital
technology. These include-
A. Challenges in Mobile Laws
B. Legal Issues of Cyber Security
C. Cloud Computing & Law
D. Social Media & Legal Problems
E. Spam Laws
A. Challenges in Mobile Laws
Today, there are numerous activities within the mobile ecosystem. The increasing competition
has introduced new and more sophisticated models of mobile phones, personal digital
assistors (pda), tablets and other communication devices in the global market. The intensive
use of mobile devices has widened the mobile ecosystem and the content generated is likely
to pose new challenges for cyber legal jurisprudence across the world.
There are no dedicated laws dealing with the use of these new communication devices and
mobile platforms in a number of jurisdictions across the world, as the usage of mobile
devices for input and output activities is increasing day by day. With an increase in mobile
crimes, there is an urgent need to meet the legal challenges emerging with the use of mobile
devices and ensure mobile protection and privacy.

B. Legal Issues of Cyber Security

Another emerging cyber law trend is the need to enact appropriate laws for preserving,
promoting and enhancing cyber security. Cyber security incidents and attacks on networks
are on the rise resulting in breaches of cyber security and posing a serious threat to the nation.
However, the challenges before a the legislature is not only to develop appropriate legal
regimes enabling the protection and preservation of cyber security, but also to instill a culture
of cyber security amongst the users.
The renewed focus and emphasis is to set forth effective mandatory provisions which would
help the protection, preservation and promotion of cyber security in use of computers, allied
resources and communication devices.
C. Cloud Computing and Law
With the growth in internet technology, the world is moving towards cloud computing which
has given rise to newer challenges. These include data security, data privacy, jurisdictional
and other legal issues. The legislators and stakeholders should provide an appropriate legal
framework that would benefit the industry and enable effective remedies in the event of cloud
computing incidents.
D. Social Media & Legal Problems
The social media has both social and legal impact which is giving rise to significant legal
issues and challenges. A recent study indicates that social networking sites are responsible for
a wide range of problems. Since the law enforcement agencies, intelligence agencies target
the social media websites; they are a preferred repository of all data.
The inappropriate and unregulated use of social media is resulting in crimes like cyber
harassments, cyber stalking, identity theft etc. Moreover, privacy on social media is
undermined greatly despite the efforts by relevant stake holders.
Thus, the legislature should frame stringent laws to effectively regulate and prevent the
misuse of social media and provide remedies to the victims of social media crimes.
E. Spam Laws
There has been a considerable growth in spam emails and calls on mobiles. Many countries
have been identified as hot spots for generating spam. As the number of internet and mobile
users increase, spammers make use of innovative methods to target the digital users.
Therefore, it is necessary to have effective legislative provisions to deal with the menace of
spam.

1.4 UNICTRAL MODEL Law on electronic commerce,1996

The United Nations Commission on International Trade Law (UNCITRAL) was established
by the United Nations General Assembly by its Resolution 2205 (XXI) of 17 December, 1966
to promote the progressive harmonization and unification of international trade law and to
play a more active role in reducing or removing legal obstacles in the flow of international
trade. The Commission has since come to be the core legal body of the United Nations
System in the field of international trade law. With the globalization of business, the
international community felt a need for a law which would set uniform standards for
electronic commerce. This led to the adoption of the UNCITRAL Model Law on Electronic
Commerce by the UN General Assembly.3 It was adopted by the General Assembly of the
United Nations by passing a resolution on 30th January, 1997.
This resolution recommended that:
"all States give favourable consideration to the UNCITRAL Model Law on Electronic
Commerce when they enact or revise their laws, in view of the need for uniformity of the law
applicable to alternatives to paper-based forms of communication and storage of
information."
The decision by UNCITRAL to formulate model legislation electronic commerce was taken
in response to the fact that in a number of countries the existing legislation governing
communication and storage of information was inadequate or outdated because it did
contemplate the use of electronic commerce. The lack of legislation in many countries in
dealing with E-commerce as a whole resulted uncertainty as to the legal nature and validity of
information presented in a form other than a traditional paper document. Inadequate
legislation at the national level inevitably created obstacles to international trade. The purpose
of Model Law was to offer National legislators a set of internationally accepted rules as to
how a number of such legal obstacles may be removed, and how a more secure legal
environment may be created for electronic commerce.
Thus, the UNCITRAL Model Law lays down rules and norms that validate and recognize
contracts formed through electronic means. It sets Model rules for contract formation and
governance of electronic contract performance. It defines the characteristics of a valid
electronic contract. It also provides for the acceptability of electronic signature for legal and
commercial purpose and the admission of electronic evidence in courts
Object and Purpose of Model Law
The main object of UNCITRAL Model Law was to have uniformity at the international level
regarding law relating to e-commerce by providing national legislators with a set of
internationally acceptable rules aimed at removing legal obstacles and increasing legal
predictability for electronic commerce. In particular, it is intended to overcome obstacles
arising from statutory provisions that may not be varied contractually by providing equal
treatment to paper-based and electronic information. Such equal treatment is essential for
enabling the use of paperless communication, for efficiency in international trade.
The UNCITRAL Model Law is not an international treaty and does not therefore constitute
positive law. Instead, it was drafted to provide a guide for individual countries in preparing
their own national legislative response. National legislators and policy-makers are not
required to adopt in its entirety the UNCITRAL Model Law. Instead, national legislatures
may modify it to meet concrete needs or concerns of their jurisdiction. This flexibility fosters
the adoption of the core provisions of the UNCITRAL Model Law, which promotes the
development of a international system of national electronic contracting legislation that
although not identical, is similar in structure and content.
Relevance of Model Law
The UNCITRAL Model Law on Electronic Commerce, was the first legislative text to adopt
the fundamental principles of:
(i) non-discrimination
(ii) technological neutrality, and
(iii) functional equivalence
that are widely regarded as the founding elements of modern electronic commerce law.
The principle of non-discrimination ensures that a document would not be denied legal effect,
validity or enforceability solely on the grounds that it is in electronic form.
For example, Article 5 of the Model Law states that the legality of information shall not be
denied merely because it is contained in an electronic document.
The principle of technological neutrality mandates that the provisions adopted in a law should
be neutral with respect to the technology involved. This ensures that the rapid pace of
development of technology does not lead to the law becoming redundant in no time.
For example, Article 7 of the Model Law which lays down rules regarding a valid signature
of an electronic document prescribes a reliable 'method' which is used to indicate that
person's approval. Since the 'method' has not been specified, the rule is not restricted to the
currently accepted method, which is digital signatures, and the law would continue to apply
regardless of any new developments.
The principle of functional equivalence principle lays out criteria under which electronic
communications may be considered equivalent to paper-based communications. In particular,
it sets out the specific requirements that electronic communications need to meet in order to
fulfil the same purposes and functions that certain notions in the traditional paper-based
system for example, "writing", "original", "signed", and "record" - seek to achieve.

Key Provisions of UNCITRAL Model Law on Electronic Commerce, 1996

The UNCITRAL Model Law on Electronic Commerce consists of 17 Articles and is divided
into two parts, the first part deals with electronic commerce in general and the second part
deals with specific aspects of electronic commerce and applies to the carriage of goods.
The key provisions of the Model Law are as follows:-
 Electronic Equivalence (Legality of Data Message): The key principle underlying the
Model Law is the concept of "electronic equivalence", found in Article 5. The Model
Law provides that information or documents will not be denied legal effect or
enforceability solely because they are in electronic format. Article 5 embodies the
fundamental principle that data messages should not be discriminated against, i.e.,
there should be no disparity in treatment between data messages and paper
documents. It is intended to apply notwithstanding any statutory requirements for a
"writing" or an "original". It should be noted, however, that such a principle is not
intended to override any of the requirements contained in Articles 6 to 10. Thus,
"information shall not be denied legal effectiveness, validity or enforceability solely
on the grounds that it is in the form of a data message", and Article 5 merely indicates
that the form in which certain information is presented or retained cannot be used as
the only reason for which that information is denied legal effectiveness, validity or
enforceability.
 Requirement of Writing: For achieving electronic equivalence, as stated in Article 5,
the Model Law specifies the conditions which must be met for an electronic
communication to constitute a legally effective substitute for a conventional, paper-
based communication. For example, Article 6 provides that a legal requirement to
provide information or a document sent "in writing is satisfied by its electronic
equivalent if it is in a form. that can be subsequently accessed and used by the
recipient.
 Requirement of Signature: Article 7 of the Model Law states that an electronic
signature shall satisfy a requirement for a signature where it meets two criteria: first,
that the signature technique identifies the signatory and indicates his or her approval
of the message content, which reflects the basic functions of a signature; and second,
that the method used was "as reliable as was appropriate for the purpose", which
reflects the security functionality of a signature. Article 7 is based on the recognition
of the functions of a signature in a paper-based environment. A signature could
perform a variety of functions, depending on the nature of the document that was
signed. For example, a signature might attest the intent of a party to be bound by the
content of a signed contract; the intent of a person to endorse authorship of a text; the
intent of a person to associate itself with the content of a document written by
someone else; the fact that, and the time when, a person had been at a given place.
 Requirement of Originality: Article 8 states that electronic. documents will satisfy a
legal requirement for "original" documents if there is a reliable assurance as to the
integrity of the information and that the information is capable of being displayed to
the person to whom it is to be presented. Article 8 provides that the criteria for
assessing integrity shall be whether the information has remained complete and
 unaltered, apart from the addition of any endorsement and any change that arises in
the normal course of communication, storage and display.
 Admissibility and evidential weight of data messages: Article 9 creates an electronic
equivalence standard for evidentiary purposes and it provides that evidentiary rules
shall not deny the admissibility of an electronic communication solely on the grounds
that it is in electronic form. The purpose of Article 9 is to establish both the
admissibility of data messages as evidence in legal proceedings and their evidential
value. With respect to admissibility, paragraph (1) provides that data messages should
not be denied admissibility as evidence in legal proceedings on the sole ground that
they are in electronic form. As regards the assessment of the evidential weight of a
data message, paragraph (2) provides useful guidance as to how the evidential value
of data messages should be assessed (e.g., depending on whether they were generated,
stored or communicated in a reliable manner).
 Data Retention: Article 10 of the Model Law provides that data retention
requirements are met where the information contained with the electronic message is
accessible so as to be usable for subsequent reference, the message itself is retained in
the format in which it was generated and any information indicating origin,
destination, date and time of the message is retained.

1.5 Introduction to cyber law; E-governance; convergence of technologies and legal issues
It is the use of information and communication technologies (ICTs) by government agencies
to transform relations with citizens, business and other arms of the government. In short [E-
Governance is the application of Information and Communications Technology to the process
of government functioning in order to create 'Simple, Moral, Accountable, Responsive and
Transparent (SMART) governance. SMART governance can be elaborated in the following
manner:-

Simple-meaning simplification of rules, regulations and processes of government through the

use of ICTs and thereby providing for a user- friendly government like online submission,
online service delivery etc.

Moral- connoting emergence of an entirely new system of ethical values in the political and
administrative machinery where immoral practices like bribing, red-tapism etc. are
eliminated.

Accountable- means making the government accountable by making all data and information
of the Government available online for consideration of every citizen, NGO and the media.

Responsive- means streaming the processes to speed up service delivery and make the system
more responsive.
Transparent-means online availability of information and reduce red-tapism i.e., the process
of Governance should be transparent leaving no room for the Government to conceal any
information from the citizen.

These objectives of e-Governance are achievable with the use Information and
Communications Technology (ICTs) by the government agencies thereby making the concept
very alluring and desirable.

The emergence of ICT has provided means for faster and better communication, efficient
storage, retrieval and processing of data and exchange of information to its users, be
individuals, groups, businesses, organizations or governments. As governments are
concerned, ICT has enabled computerization and internet connectivity/web-enablement in
association with process t engineering, to ensure faster and better processing of information
leading to speedier and qualitatively better decision making, greater reach and accountability,
better utilization of resources and overall good governance. In the case of citizens, ICT holds
the promise of enhanced access to information and government agencies, efficient service
delivery and transparency in dealings and interactions with the government.

With increasing awareness among citizens about their rights and the resultant increase in
expectations from the government to perform and deliver, the whole paradigm of governance
has changed. Government, today, is expected to be transparent in its dealings, accountable for
its activities and faster in its responses. This has made the use of ICT imperative in any
agenda drawn towards achieving good governance.

It is to be further noted that analogous to e-commerce, which allows business to transact with
each other more efficiently (B2B) and brings customers closer to businesses (B2C), e-
governance aims to make the interaction between government and citizens (G2C),
government and business enterprises (G2B), and inter-agency relationship (G2G) more
friendly, convenient, transparent, and inexpensive.

Need for E-Governance

The primary purpose of governance is the welfare of citizens. While one aspect of
governance relates to safeguarding the legal rights of all citizens, an equally important aspect
is concerned with ensuring equitable access to public services and the benefits of economic
growth to all. The "e" in e-Governance stands for 'electronic'. Thus, e-Governance is basically
associated with carrying out the functions and achieving the results of governance through
the utilization of what has today come to be known as Information and Communications
Technology (ICT) The reason why countries around the world are increasingly opting for 'e-
Governance' are-

 Governance has become more complex and varied in the last few decades and more
importantly, citizens' expectations from government have increased manifold.
 ICT facilitates efficient storing and retrieval of data, instantaneous transmission of
information, processing information and data faster than the earlier manual systems,
 speeding up governmental processes, taking decisions expeditiously and judiciously,
increasing transparency and enforcing accountability.
It also helps in increasing the reach of government both geographically and demographically.
It is expected that e-Governance would enable the government to discharge its functions
more effectively. However, this would require the government to change its processes, its
outlook, laws, rules and regulations and also its way of interacting with the citizens. It would
also require capacity building within the government and creation of general awareness about
e-Governance among the citizens. The need for introducing e-Governance tools is for
reforming governmental processes and bringing elements of accountability and transparency
along with citizen-centricity.

Therefore, the countries around the world are increasingly opting for e-Governance' to
discharge its functions more efficiently and effectively for providing

(a) Better service delivery to citizens;

(b) Ushering in transparency and accountability;

(c) Empowering people through information;

(d) Improved efficiency within Governments;

(d) Improve interface with business and industry etc.?

Defining E-Governance

Although the term 'e-Governance' has gained currency in recent years, there is no standard
definition for this term. Different governments and organizations have defined the term as per
their own aims and objectives. Some widely used definitions are listed below:

According to the World Bank,"

E-Government refers to the use by government agencies of information technologies (such as

Wide Area Networks, the Internet, and mobile computing) that have the ability to transform
relations with citizens, businesses, and other arms of government. These technologies can
serve a variety of different ends: better delivery of government services to efficient citizens,
improved interactions with business and industry, citizens empowerment through access to
information, or more government management. The resulting benefits can be less corruption,
increased transparency, greater convenience, revenue growth, and/or cost reductions."

Thus, the stress here is on use of information technologies in improving citizen-government

interactions, cost-cutting and generation of revenue and transparency.

(ii) UNESCO defines e-Governance as:*

"Governance refers to the exercise of political, economic and administrative authority in the
management of a country's affairs, including citizens' articulation of their interests and
exercise of their legal rights and obligations. E-Governance may be understood as the
performance of this governance via the electronic medium in order to facilitate an efficient,
speedy and transparent process of disseminating information to the public, and other
agencies, and for performing government administration activities."

This definition envisages the use of the electronic medium in the exercise of authority in the
management of a country's affairs along with articulation of citizens' interests leading to
greater transparency and efficiency.

(iii) The Council of Europe has taken e-Governance to mean:

"the use of electronic technologies in three areas of public action:

 relations between the public authorities and civil society.

 functioning of the public authorities at all stages of the democratic process (electronic
democracy).
 the provision of public services (electronic public services)"
In this case, the focus is on making use of electronic technologies with a view to encourage
better interaction between government and citizens, promote democracy and provide public
services.

(iv) The US E-Government Act of 2002 defines "electronic Government" to mean (Section
3601)

"the use by the Government of web-based Internet applications and other information
technologies, combined with processes that implement these technologies, to-

(A) enhance the access to and delivery of Government information and services to the public,
other agencies, and other Government entities; or

(B) bring about improvements in Government operations that may include effectiveness,
efficiency, service quality, or transformation".

This definition reflects the strategy of the US Government regarding the use of ICT in
improving Government operations on one hand and enhancing the access and delivery of
information and services to citizens and government entities on the other.

Sometimes, the term 'e-government is also used to denote 'e-governance'. However, it is

pertinent to note that e-government differs from e-governance. E-government constitutes the
way the public sector institutions use technology to conduct administration and to enhance
the delivery of existing services. E-governance, however, is not simply about technological or
physical application for public affairs but about the ways political and social powers are
organized, how the citizens interact with the government or influence the legislative or public
sector processes.?
Difference between E-Government and E-Governance

E-Government is the use of Information and Communication Technology in public whereas

e-Governance is a functionality.

E-Government means the application of ICT in government operations, as a tool to make a

better government. E-Governance, on the other hand, implies the use of ICT in transforming
and supporting functions and structures of the system.

E-Government is a one-way protocol but e-Governance is a two- way protocol (ie.,

government to citizen and vice versa)

E-Governance is a part of e-Government. E-Governance cannot operate in isolation.

Legal Framework for E-Governance

The UNCITRAL Model Law of E-commerce on which the Information Technology Act,
2000 is based has made no reference to e-governance. But it was the collective wisdom of the
legislature, which saw the necessity of introducing concepts like e-governance in this Act.
The object of the Information Technology Act, 2000 is to provide legal recognition for
transactions carried out by means of electronic communication, commonly referred to as
"electronic commerce", which involve the use of alternatives to paper-based methods of
communication and storage of information, to facilitate electronic filing of documents with
the Government agencies etc. Keeping in view the above objective, the entire Chapter III of
the Act is devoted to e-governance and e-governance practices. There are 10 sections under
Chapter III of the Act, from section 4 to section 10A, which deal with e-governance issues
i.e., legal recognition of electronic records, digital signatures, use of electronic records and
digital signatures in Government and its agencies, retention of electronic records, and
publication of rule, regulation, etc., in Electronic Gazette etc. These sections form the basic
legal framework governing electronic governance in India. Thus, Chapter III of the Act
serves a dual purpose:

(i) it introduces the principle of functional equivalence; and

(ii) it introduces e-governance by 'facilitating electronic filing of documents with the

government agencies."

The functions and purpose of a written communication are many, viz., (a) authentication of
contents by signature; (b) the document is legible to all; (c) it would remain unaltered over
time; (d) it would allow reproduction without alteration; and (e) acceptability before public
authorities and courts. Therefore, any written communication which satisfies these functions
would be acceptable. Thus, what we are concerned with is not the form of writing but
whether the functions which such writings ought to perform are satisfied or not.

Consequently, whether a writing is on paper or in an electronic form, so long as it performs

the functions for which it has been made, it cannot be rejected. The form in which the writing
is made is merely the means to achieve the objects enumerated above. In the same way once
the electronic documents are able to perform the same functions as performed by the paper-
based documents, they attain the same level of legal recognition as corresponding paper
documents performing the same function enjoy.