VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES,

(GGSIPU), NEW DELHI

Professional Skill Development Activity

(P.S.D.A.)
on
CYBER TORTS

Submitted to - Submitted by-

Ms. Ritika Chauhan Shivastuti
Asst. Professor, VII “M”
VSLLS 13017703520
BBA. LL.B. (H.)

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 INTRODUCTION

The word ‘cyber’ is the virtual world of internet, where there are no limited boundaries between
the people who use it. It is reality that the extent to which information technology has spread, its
reach and influence, makes societies that much more vulnerable to any possible use and misuse of
the technology.1

Cybertort is a neoligism (coined from the terms cyberspace and tort) = tort law as it relates to the
internet/world wide web. The term ‘cyber torts’ is a misnomer. This term has nowhere been
defined in any statute /Act passed or enacted by the Indian Parliament. The concept of cyber is not
radically different from the concept of conventional torts. Both include conduct whether act or
omission, which cause breach of rules of law and counterbalanced by the sanction of the state.

Cyber torts is the latest and perhaps the most complicated problem in the cyber world. Cyber torts
may be said to be those species, of which, genus is the conventional torts, and where either the
computer is an object or subject of the conduct constituting crime. Any tortuous Activity that uses
a computer either as an instrumentality, target or a means for perpetuating further torts comes
within the ambit of cyber torts.

A generalized definition of cyber torts may be “unlawful acts wherein the computer is either a tool
or target or both” The computer may be used as a tool in the following kinds of activity-financial
crimes, sale of illegal articles, pornography, online gambling, intellectual property crime, e-mail
spoofing, forgery, cyber defamation, cyber stalking. The computer may however be target for
unlawful acts in the following cases- unauthorized access to computer/ computer system/
computer networks, theft of information contained in the electronic form, e-mail bombing, data
didling, salami attacks, logic bombs, Trojan attacks, internet time thefts, web jacking, theft of
computer system, physically damaging the computer system.

1
Joga Rao S. V(2004), law of cyber crimes & information technology law. 1st edition, p.46
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The use of internet has brought about a lot of benefits, such as e-commerce, e-banking, unlimited
information, easy and inexpensive communication through e-mail, messengers, voice chat, social
websites, etc. But there are some demerits also, like hacking stalking, defamation, spamming,
viruses, gambling.

It is very necessary to have regular checks and balance everything that exists with the interference
of the law, to regulate the people in their behaviour. Politics and pornography are not the only
reasons why government would interfere in the use of internet, there were financial aspects like
taxation, intellectual property rights, commerce trade and the gambling so that the government
could have their revenues

The internet started to gain importance from mid-1990s onwards, with the country realizing the
potentiality of the internet through its tremendous growth. Computers with internet facilities
have become the most dominant medium of communication. The internet with all the benefits of
anonymity reliability and convenience has become an appropriate breeding place for persons
interested in making use of the met for illegal gainful purposes, either monetary or otherwise. 2

The biggest challenge to the law is to keep pace with the technology. Some of the challenges of
making technology based laws are that there is a chance of them being soon outdated. So as far as
possible technology must be formulated in a technology neutral way. There has to be a consistency
between the laws.

2
Legal dimensions of cyberspace, edited by SK Verma and Raman Mittal, Indian law institute, New Delhi, 2004, pg 22.
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 CIVIL AND CRIMINAL ACTION

The Information Technology Act provides civil and criminal sanctions for the violation of its
provisions. Civil proceedings is one in which one person or state seeks to enforce by appropriate
relief and the alleged implementation of the civil rights against another person and which if the
claim is proved, would result in the declaration, express or implied, of the rights claimed and the
relief. If the order of the court is directed against a proceeding which is criminal in nature, i.e., if
the proceeding is carried on to a conclusion that it may end in imprisonment for the offence or
imprisonment of fine, then proceeding must be taken to be criminal proceeding. 3

Civil sanctions are intended to secure to the affected party damages and render the contravention
unprofitable. Criminal sanction is the prosecution which results in fine and / or imprisonment
offence by a statute proceeds on the assumption that society suffers by the act of commission or
omission of the defaulter and that a deterrent sentence must be imposed to discourage the repetition
of the offence.4

Proceedings for damages are distinct from the criminal complaints filed against the contravener.
The imposition of damages is neither a prosecution nor a punishment for any offence. It can
continue simultaneously with filing a criminal complaint.

Invocation of one does not exclude resort to the other. It is well known that the legislation can
impose both a criminal as well as civil sanction of the same act of commission or omission.

Civil sanctions are primarily as a safeguard for the protection of the proprietary or the privacy
rights and interests of a person, whereas criminal sanction is intended to vindicate public justice
by punishing the offender. Thus the two remedies are mutually exclusive, but clearly co-existence
and essentially differ in their content and consequence.

3
Kashinath Dutta v. Calcutta Municipal Corporation AIR 1992 cal 83
4
Law of information technology( cyber law), DP mittal, October 2000, pg no 172

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 WHAT CONSTITUTES CYBER TORTS?

There are many cyber torts, that is civil wrongs that is committed with the help of computer
technology. Some of the most common cyber torts are-

1. Stalking
2. Spamming
3. Defamation
4. Squatting
5. Spoofing

CYBER STALKING

Stalking has long been known as unwanted activity of an obsessive stalker towards a distressed
stalkee. Although this concept is existing for a long time, its impact attracted only in the recent
times. Cyber stalking is the exploitation of Information and Communications Technology methods
to follow other persons repetitively to cause displeasure, annoyance, distress and fear.5

Internet services such as e-mails are also abused by the cyber stalkers to send text, graphics, audio

and video based messages to the email account of the victim, transmitting threatening , alarming

and harassing contents. Stalking can be done either directly or indirectly. In the direct harassment,

the stalker sends harassing messages to the targeted victim and in the indirect harassment, the

stalker tries to obtain the personal information and then uses the information to contact the person

through other means.

Internet services such as e-mails are also abused by the cyber stalkers to send text, graphics, audio
and video based messages to the email account of the victim, transmitting threatening , alarming
and harassing contents. Stalking can be done either directly or indirectly.

5
Xiang li, Cyber Stalking: Information and Communications Technology Makes it Different, Cyber Law
Journal, The ICFAI University, feb 2009, pg 32
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Directly, the stalker sends harassing messages to the targeted victim and in the indirect
harassment, the stalker tries to obtain the personal information and then uses the information to
contact the person through other means.

Cyberized stalking threatens a great number of netizens, who in turn cannot get away from such
harassment just by moving to a different place or disconnecting himself/herself from the internet.
Stalking occurring in cyberspaces leaves no direct viewing traces, causes no direct viewing efforts
except digitalized effects, and leads to no direct viewing detection, except through computerized
detection. Yet it harms the victim living in the real space. 6

The process of stalking has low controllability. The real identity of the user is not necessary for
using the internet. It is necessary to point out that anonymity not only costs the victim and the law
enforcement, nut also the perpetrator. The impossibility of control over the internet immunizes
individuals and institutions from any liability for the omission of such control.

Sometimes personal information is published in telephone directory or yellow pages, which

usually collects names, profession, profession, telephone numbers, residence addresses, and even
e-mail accounts. Publishing such information means anyone can use the information and contact
the person. But the dispute arises about who can, at what time, how frequently and for what
purpose the information is used. Dispute is involved when it becomes difficult to judge whether
an act is normal or abnormal use of information.

Thus exploiting new technological methods, cyber stalking poses severe intimidation to netizens
who are in the cyber space as it helps them to do many things fast and efficiently in this information
age.

6
Xiang li, Cyber Stalking: Information and Communications Technology Makes it Different, Cyber Law Journal,
The ICFAI University, feb 2009, pg 33
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 India’s first cyber stalking case

The Delhi police registered India’s first case of cyber stalking in 2000. Ritu Kohli, complained
against a person who was using her identity to chat over obscene things on the net and her
telephone number and her address was also given to various people by that (one who takes other’s
identity) person. Later the IP address were traced and they arrested Manish Kathuria. He was
charged under section 509, of IPC.7

But the cyber stalking does not come under the purview of the section 509, as the law under this
section states that any wrong committed through words which are uttered or a gesture must be
made or any object should be exhibited. But cyber stalking is just about typing and working on the
computer, which does not come under the ambit of section 509 of IPC.

There is a need to create more awareness amongst the legislature and the law enforcing agencies
regarding the cyber torts and crimes in order to enable the early regulation.

SPAMMING

The act of sending unsolicited e-mails in bulk is called “spamming,” and the unwelcome messages
are called “spam.”8 Spamming, which accounts for 40% of global email traffic, is appealing
precisely because it is cheap. The spammer bears basically the same cost for sending one
unsolicited e-mail as she would for sending one million. While the cost to the spammer is
minimal, the cost to consumers and ISPs is immense.

7
Some Cyber Law Perspectives, The ICFAI Journal of Cyber Law, vol 1 ,nov 2002,pg 9
8
Evans C. Anyanwu, When bad thingshappen to good laws : Fighting spamming with the law of Trespass and
other novel approaches, www.cyberlinks.com

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Unsolicited bulk e-mail, sometimes referred to as "Spam" or "Unsolicited Commercial Electronic
mail," is electronic mail which is unsolicited and sent for the purpose of selling the recipient goods,
services, or property. Commercial electronic mail advertisements are most often used to solicit
multi-level marketing, get-rich-quick and work-at-home schemes as well as questionable products
and pornography. Not only does Spam affect consumer and citizen e-mail users, but it can cripple
businesses and Internet Service Providers.

In each spamming cases , the plaintiff shows some interference, with the efficient functioning of
the computer system; Compuserve,9 for example, presented evidence that the defendant’s mass
emails placed a tremendous burden on CompuServe’s equipment by using disk space and draining
processing power, leaving those resources unavailable for the subscribers.

CYBER DEFAMATION

Cyber defamation would imply defamation by anything which can be read, seen or heard with the
help of the computers. There are certain noticeable differences between online and offline attempt
of defamation which makes the online defamation more vigorous and effective.

This occurs when defamation takes place with the help of computers and / or the Internet. E.g.
someone publishes defamatory matter about someone on a website or sends e-mails containing
defamatory information to all of that person’s friends. In a recent occurrence, Surekha (names of
people have been changed), a young girl was about to be married to Suraj. She was really pleased
because despite it being an arranged marriage, she had liked the boy. He had seemed to be open-
minded and pleasant. Then, one day when she met Suraj, he looked worried and even a little upset.
He was not really interested in talking to her. When asked he told her that, members of his family
had been receiving e-mails that contained malicious things about Surekha’s character. Some of

9
CompuServe, Inc. v Cyber Promotions, Inc. 115 S Ct. 2338, 2344 (1995)

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them spoke of affairs, which she had had in the past. He told her 168 that, his parents were
justifiably very upset

and were also considering breaking off the engagement. Fortunately, Suraj was able to prevail
upon his parents and the other elders of his house to approach the police instead of blindly
believing what was contained in the mails. During investigation, it was revealed that the person
sending those e-mails was none other than Surekha’s stepfather. He had sent these e-mails so as
to break up the marriage. The girl’s marriage would have caused him to lose control of her property
of which he was the guardian till she got married.

Another famous case of cyber defamation occurred in America. All friends and relatives of a lady
were beset with obscene e-mail messages appearing to originate from her account. These mails
were giving the lady in question a bad name among her friends. The lady was an activist against
pornography. In reality, a group of people displeased with her views and angry with her for
opposing they had decided to get back at her by using such underhanded methods. In addition to
sending spoofed obscene e-mails they also put up websites about her, that basically maligned her
character and sent e-mails to her family and friends containing matter defaming her.

SQUATTING

Cyber squatting is the act of registering a famous domain name and then selling it for a fortune.
This is an issue that has not been tackled in IT act 2000. Cybersquatting is a crime against the laws
and regulations of cyber law. It can be defined as registering, trafficking in, or using a domain
name with bad-faith i.e. mala fide intent to make profit from the goodwill of a trademark belonging
to someone else. The cyber squatter then offers to sell the domain to the person or company who
owns a trademark contained within the name at an inflated price.

The term is derived from squatting, which is the act of occupying an abandoned or unoccupied
space or building that the squatter does not own, rent or otherwise have permission to use.
Cybersquatting however, is a bit different in that the domain names that are being squatted are
(sometimes but not always) being paid for through the registration process by the Cybersquatters.

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Cybersquatters usually ask for prices far greater than that at which they purchased it. Some
cybersquatters put up derogatory or defamatory remarks about the person or company the domain
is meant to represent in an effort to encourage the subject to buy the domain from them.

The World Intellectual Property Organisation (WIPO) saw a 20 per cent increase in the number of
cyber squatting (abusive registration of trademarks as domain names) cases filed in 2005 as
compared to 2004. In 2005, a total of 1,456 cyber squatting cases were filed with WIPOs
Arbitration and Mediation Centre, according to a WIPO release. 10

SPOOFING

A spoofed email is one that appears to originate from one source but actually has been sent from
another source. E.g. Pooja has an e-mail address pooja@asianlaws.org. Her enemy, Sameer spoofs
her e-mail and sends obscene messages to all her acquaintances. Since the e-mails appear to have
originated from Pooja, her friends could take offence and relationships could be spoiled for life.
Email spoofing can also cause monetary damage. In an American case, a teenager made millions
of dollars by spreading false information about certain companies whose shares he had short sold.
This misinformation was spread by sending spoofed emails, purportedly from news agencies like
Reuters, to share brokers and investors who were informed that the companies were doing very
badly. Even after the truth came out the values of the shares did not go back to the earlier levels
and thousands of investors lost a lot of money.

INFORMATION TECHNOLOGY ACT, 2000 AND ITS AMENDMENTS

The Information Technology Act, 2000 came into force in India on 17th of October 2000. It
extends to whole of India and also applies to any offence or contraventions committed outside
India by any person (Section 1 (2), IT Act, 2000). According to Section 75 of the Act, the Act
applies to any offence or contravention committed outside India by any person irrespective of his

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Rima Bhardwaj & Dushyant Upadhyay, A brief legal overview.

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 nationality, if such act involves a computer, computer system or network located in India. The IT
Act prescribes provisions for contraventions in Chapter IX of the Act, particularly Section 43 of
the Act, which covers unauthorized access, downloading, introduction of virus, denial of access
and internet time theft committed by any person. It prescribes punishment by way of damages not
exceeding Rs. 1 crore to the affected party. Chapter XI of the IT Act discusses the cyber crimes
and offences interalia, tampering with computer source documents (Sec. 65), Hacking (Sec.66),
Publishing of obscene information (Sec.67), Unauthorized access to protected system (Sec.70),
Breach of confidentiality (Sec.72), Publishing false digital signature certificate (Sec.73). 11

The information technology act intends to give legal recognition to e-commerce and e-governance
and facilitate its development as an alternate to paper based traditional methods. The IT
(Information Technology) Act, 2000, which derives its flavor from UNCITRAL’s (United Nations
Commission on International Trade Laws) Model Law on e-commerce. A UN General Assembly
resolution in 1997 advocated the adoption of UNCITRAL Model Law in the local laws of member
countries to maintain uniformity in practice. The IT Act primarily seeks to recognize transactions
carried out by electronic means and to provide a framework for the development of e-commerce
and e-governance.

 It binds digital signatures to the asymmetric encryption system, limiting the scope of innovation
in technology. This is a serious drawback especially since the technology is being replaced with a
more secure system soon.

 It fails to cover control of cyber laundering of money, which can easily be used for criminal or
terrorist activities especially given the situation post September 11.

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Talwant Singh, Cyber law and Information technology.

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CYBER TORTS IN INDIA AND OTHER COUNTRIES

While there is some United States law that does restrict access to materials on the internet, it does
not truly filter the internet. Many Asian and Middle Eastern nations use any number of
combinations of code-based regulation (one of Lessig's four methods of net regulation) to block
material that their governments have deemed inappropriate for their citizens to view. China and
Saudi Arabia are two excellent examples of nations that have achieved high degrees of success in
regulating their citizens access to the internet.

Pavan Duggal, Advocate, Supreme Court and Cyber law expert has also been vocal about India's
Information Technology Act 2000, and did not find it adequate due to various flaws in it. He has
been critical of the efficacy of new Amendments to IT Act 2000 in India. He believes that new
amendments, passed by Indian Parliament in Dec 2008, are not at all sufficient in the context of
the emerging needs of India and there are various glaring loopholes.

In many countries, speech through cyberspace has proven to be another means of communication
which has been regulated by the government. The Open Net Initiative, whose mission statement
is "to investigate and challenge state filtration and surveillance practices" in order to "...generate
a credible picture of these practices," has released numerous reports documenting the filtration of
internet-speech in various countries.

While China has thus far proven to be the most rigorous in its attempts to filter unwanted parts of
the internet from its citizens, many other countries - including Australia, Singapore, Iran, Saudi
Arabia, and Tunisia - have engaged in similar practices of internet censorship. In one of the most

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vivid examples of information-control, the Chinese government for a short time transparently
forwarded requests to the Google search engine to its own, state-controlled search engines.
These examples of filtration bring to light many underlying questions concerning the freedom of
speech, namely, does the government have a legitimate role in limiting access to information? And
if so, what forms of regulation are acceptable? The recent blocking of "blogspot" and other
websites in India failed to reconcile the conflicting interests of speech and expression on the one
hand and legitimate government concerns on the other hand.

CONCLUSION

Cyber Tort in India is an ever evolving concept complicated by privacy concerns and Identity
theft. There has recently been Digital Personal Data Protection Bill passed by Government of
India in this regard which in some way might help and there has recently been in the year 2021
new rules been put out to IT Act which talks about social media handles to help Government in
Identifying First Originator of messages which at times may constitute a Tort.

More than anything else, India, by its sheer numbers, as also by virtue of its extremely talented
and ever growing IT population, is likely to become a very important Internet market in the future
and it is important that we legislate Cyberlaws in India to provide for a sound legal and technical
frame work which, in turn, could be a catalyst for growth and success of the Internet Revolution
in India.

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Why Cyber Laws in India, www.pavanduggalassociates.com
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Karnika Seth, INDIA - CYBER CRIMES AND THE ARM OF LAW - AN INDIAN PERSPECTIVE

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