With the progression of technology, we find ourselves interacting with each other in “new worlds”. The Cyber world or Cyberspace, a popular culture from the science fiction that depicted a global technological environment, is far from fiction in today’s reality. But this word was more than an interaction between computer systems1but since it inception in the 1990s, it has become the representation of many new and emerging ideas of mankind. While such technology has brought social interaction to a new level altogether let us not forget that this lifestyle change call for an amendment in existing policies that regulate social behaviour. However, the regulation of cyberspace interaction is the most challenging task of the legal machinery of any country. This is probably because the sphere of interaction has changed from physical to virtual while legal regulations have literally remained by the book.
The first step towards solving this issue is thoroughly understanding its magnitude. To put things in perspective, consider this, the world (in virtual terms) has shrunk so many times over that it has become was we term a ‘Global Village’. A few decades back the concept of telephonic interaction with someone halfway across the globe was an impossibility. The problem with the new technology is not just that it is capable of sophisticated interaction between individuals but rather it has come as a free and faster mode of interaction. WhatsApp, Facebook and other customer utility applications are free, easy and fun to use, or at least on the face of it and this draws millions of subscribers. As a result, an estimated 3.2 billion2(roughly 56.1% of world population) are out there in the virtual world throwing themselves and their valuable information in.
“Innovation is the death of cybersecurity”3. While technological masterminds of the 21st century are going about innovating and causing fast paced technological advancement nether them nor the lawmakers have paused to think of the problems that tag along. Unfortunately, this looking the other way policy has for a long time given a free pass for deviant behaviour for anyone with a device and internet. Thus, new forms of commission of crimes of all genres have emerged like credit card frauds, child pornography, hacking, etc many of which are tortuous and encroach the civil rights of individuals.
Tort and Cyber Tort
It is common knowledge that tort is a civil wrong where remedy is in the form of damages. The plaintiff who is the wronged party is entitled to be compensated by the wrongdoer, defendant. Since the nature and quantum of offence cannot be determined beforehand, the damages awarded is unliquidated.
Cyber Torts on the other hand are those offences that are committed online but are civil in nature. Remember that a person over the internet can commit acts that are even criminal in nature such as hacking and child pornography. These cyber civil wrongs may be committed through any device (mobile or laptop) capable of social interaction through the internet. Most torts in the real world can be converted to be applied in the virtual world too. Consider this example;
A, a popular person in his community said declared the sexual orientation of another person, B in a television interview without the latter’s permission. He will be liable for the tort of defamation. What if the same statement was made by A on an online platform (like twitter, Facebook, snapchat, etc.)? Then the person may be held liable for cyber defamation. But remember this whether the wrong is done online or not to constitute a tort it must still fulfil the essential elements4of torts:
- Wrongful Act – the act complained of must be that which is prohibited by law. Thus, torts of physical nature when done in a virtual platform will constitute an offence.
- Resulting in legal injury – the above-mentioned wrongful act must result in the legal injury of the plaintiff for the act to constitute an offence. In the virtual world if any act results in the violation of civil right of any person then such act would amount to legal injury.
- Legal Remedy – there must be a legal remedy available for the wrong so committed.
Thus, the difference between tort and cyber tort lies in the platform for commission of crime (being virtual in case of cyber torts). Once a virtual act qualifies the above conditions it will constitute a cyber wrong.
Classification of Cyber Torts
Some of the most commonly discussed forms of traditional torts include assault, battery, false imprisonment, conversion, defamation, etc. But unlike traditional torts there exists no legal commentaries creating a definitive classification of cyber torts. Hence a broad classification5of cyber tort may be created based on the nature of civil right begin violated:
- Hacking – this involves the unauthorized access of any device of another person say computer, mobile, etc. This infringes the civil rights of the latter person on multiple grounds. First of all, it violates a person’s right to property. With changing technology, the scope of what constitutes as one’s property doesn’t simply include what the person possesses tangibly. A lot of data belonging to the person is stored on electronic devices that may be disrupted or destroyed. Lastly, and most importantly it violates the person’s Fundamental Right to Privacy6.
- Online Harassment – it is common understanding even in traditional tort law that certain offences can constitute merely a verbal act (say defamation, bullying). The circumstances where the words were spoken result in the constitution of an offence. Hence when the same harassment occurs online (say through email, chat, etc.) it shall constitute an offence.
- Stalking – similar to the real world anyone on the internet can “stealthily pursue” another by following his digital footprint. In so doing he violates the latter’s privacy at the same time mentally harassing him.
- Dissemination of obscene material – many of the traditional torts are offences because the act constituting such torts are against public health and morality. These two parameters also apply in the virtual world. Thus, if any person is found disseminating obscene material like indecent exposure, child pornography he may be held liable for acting against public health and morality.
- Defamation – the most commonly occurring offence on the internet. Users on a daily basis tend to speak ill of another and such statement is made available to millions of users across the globe. Although content regulators constantly attempt to remove such content many go unchecked on the web.
- Fraud – scamsters have now upgraded to using technology in committing their cons. Internet of today is about data and information and we have so much of it that it has become impossible for any person or organization to moderate it. Google today has so much information but its own developers struggle to review the sheer volume of content on it, as a result numerous fraudulent information is disseminated scamming users into losing their money and information. Online fraud also includes tricking users into disclosing sensitive information such as PINs and passwords.
- Cyber Terrorism – this is by far the most dangerous and destructive form of cyber offence. While it doesn’t result in a direct loss of life it can easily disrupt the transmission of information thereby interrupting vital communication systems, for instance cyber attacks on military communication systems can cause severe loss to life and property and amount to a National Security threat.
Information Technology Act, 2000 – A preventive Law
The Information Technology Bill was introduced by the Department of Electronic (DoE) in July 1998, but came to the House only in 1999 as it underwent substantial criticism and change as it was only then the IT ministry was newly formed. After various organizations including the Ministry of Law and Company affairs took a hit at the bill, it went before the parliamentary standing committee. While numerous changes were suggested by the parliamentary committee only those approved by the new ministry of IT were approved. By May of 2000 the bill was approved by both the houses of parliament and within a landmark 4 days it had received Presidential approval. The Information Technology act thus came into effect on 17/10/2000. The act keeping in mind the various concerns that have arisen since the era of internet had the following key highlights:
- All forms of electronic data would receive legal recognition. This means that they could now be used as evidence in court.
- The concept of digital signature was given proper cognizance. It would now have the force of a real signature. Rules regarding the same were published by the government.
- Certified controlling authorities will be created under the bill who will oversee E-commerce transaction (a now emerging sector of commerce).
- For the first time attempt was made to define various crime related to the virtual platform. Punishments for the same were prescribed along with.
- Most importantly a Cyber Regulation Appellate Tribunal was constituted by the Government to hear only cases of nature as described in the act.
Many other key provisions were discussed that dealt with both the substantive and procedural aspects of Cyber torts.
Intermediary Liability in Cyber Wrongs
As discussed earlier few organizations like Google, Facebook, etc. have made dissemination of information and social interaction possible in huge volumes and high speeds through their platform. Each day there are about 1.49 billion users on Facebook who participate in social interaction and the dissemination of information. Even with a big and qualified team it is nearly impossible for Facebook to moderate content put up on its platform. Thus, when a user among millions of other uploads content that it against the law or public morality then should intermediaries like Facebook be held liable?
The IT Act7give a very broad definition of intermediaries;
“intermediary, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”.
As you can see all persons even those distantly linked with information being posted online is being accounted for as an intermediary under the law. So, what is their liability? Initially intermediaries were held completely liable8for the content being uploaded by users on their platform. However, over time with the demand for protection by such intermediaries for content being uploaded by users in exercise of their right to free speech the concept of safe harbour protectionarose. It was initially propounded in the United States. The principle was incorporated as section 79 in the Information Technology Act, 2000. The intermediary [including all persons under section 2(w)] receives protection from liability when he is simply a facilitator in the transmission on content and doesn’t in any manner take part in its creation or modification. Also, the protection would continue to apply only if such intermediary remove content deemed unlawful by the Government upon their instance. If the intermediary is found to have conspired with the used itself in any manner, he will immediately lose protection under the act.
Cyber tort is as tortuous in nature as traditional torts, sometimes even more severe. Every person using the internet owes a duty to fellow users to act responsibly in compliance with the law and public morality. While cyberspace has come with a lot of benefits it has surely well-equipped the deviants in society paving way for a new era of offences. Technology has become so entrenched in our day to day lives that separation from it is not possible and the only way to protect user safety is content moderation. It may never be possible for any organization, government or not, to completely regulate all the content being made online each minute but surely much more protection can be offered to users with constant development of protective technology as well as law. The IT Act is a comprehensive piece of legislation, which aims at policing some of the activities over the Internet. But it is simply the beginning of cyber legislation as a lot of stone are still left untuned.
1Oxford Dictionaries | English. 2019. cyberspace | Definition of cyberspace in US English by Oxford Dictionaries. [ONLINE] Available at: http://www.oxforddictionaries.com/us/definition/american_english/cyberspace. [Accessed 17 May 2019].
2Oxford Dictionaries | English. 2019. cyberspace | Definition of cyberspace in US English by Oxford Dictionaries. [ONLINE] Available at: http://www.oxforddictionaries.com/us/definition/american_english/cyberspace. [Accessed 17 May 2019].
3IT Pro Portal. 2019. Can cybersecurity really keep up with technological change? | ITProPortal. [ONLINE] Available at: https://www.itproportal.com/features/can-cybersecurity-really-keep-up-with-technological-change/. [Accessed 17 May 2019].
4Avantika Goel. 2019. Define Torts & Give its essential elements | Infipark.com. [ONLINE] Available at: http://www.infipark.com/articles/define-torts-give-its-essential-elements/. [Accessed 17 May 2019].
5legal Service India. 2019. Cyber Torts. [ONLINE] Available at: http://www.legalservicesindia.com/article/1134/Cyber-Torts.html. [Accessed 17 May 2019].
6Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors;Writ Petition (Civil) No. 494 of 2012.
8Avnish Bajaj v. State, 150 (2008) DLT 769