Without doubts, law lags behind technology. Nevertheless law being a tool of social engineering, could in no way shrug off from the newer issues generated by technology growth. Legal system usually accomplishes the said duty by adapting the existing principles to match the technological challenges. Even though this management of affairs by adapting existing provisions are possible, on later stage specific enactment are created for addressing issues of technological origin. Thus the use of existing provisions in the nascent stage of technology is a breathing time enjoyed by the law makers. In other words it is the time for law framers for home working on newer law. With respect to information technology, India went for the first statute vides the Information Technology Act, 2000 (ITA 2000). In bringing out a comprehensive law, even though India was lagging by four to six years with the pioneers, compared to majority of world countries India was well in advance. Even though not excusable, this can be cited as a reason for the latches in ITA 2000. When amendments to ITA 2000 were mooted many in the subject were hopefully following the same. The Information Technology (Amendment) Act, 2008 (ITAA 2008) is to be scrutinized keeping all these facts and concerns.
The major contribution of ITAA 2008 is that, it has done away with the exclusivity given to digital signature as a means of authentication in electronic form. Henceforth, irrespective of the technique any electronic mode of authentication is signature in electronic form. However what all technique can be considered as electronic signature is to be decided by the government. Earlier in sanctifying digital signature, ITA 2000 was canvassing for a specific technology whereas with respect to electronic signature that is not the position because there is complete freedom as far as choice of technique is concerned. Nevertheless digital signature is continues to be acceptable to, thus the present position can be continued without much disturbances at the same time newer techniques can be incorporated as signatures.
Almost any kind of communication device is now within the purview of the enactment. Further the concept of intermediary has been expanded; earlier the same was limited to some specific category. But on the other hand the protection given to internet service providers has been extended to intermediaries also. It is to be noted that, the ‘bazee.com’ issue and the sentiments of the industry stands balanced by this double pronged change. With respect to formation of contract through online medium, a new provision has been devised in an attempt to answer the possible issues. By existing principles contract formation requires meeting of minds of two persons. Vide ITAA 2008 no contract will be deemed to be unenforceable merely because it was done through electronic means. It is to be noted that, even though such a protection is made whether computer can make contract is still an open ended question.
The scope of tortuous liabilities and remedies has been widened to a great extend. Further a liability has been cast on entities handling personal information. This change is to read in the light of some credit card frauds in which personal of BPO entities had used information of client. The limit of compensation or damages that could be awarded by the adjudicating officer has been increased from one crore to five crores. Further competent court have been vested with jurisdiction for any claim over and above five crores. Thus one need to conclude that the parallel mechanism that was envisaged in ITAA 2000 is now limited to claims up to rupees five crores. This change is bit confusing. Usually specialized mechanism having expertise in an area is created to deal with technical issues upon which such mechanism is having expertise. By bringing in conventional courts into the picture that logic is getting negated. Either the parallel mechanism ought to have been avoided or the parallel mechanism should be taken into confidence completely. The presence of appellate remedies is definitely a supporting argument for continuing solely with a parallel mechanism. The series of cosmetic changes has been made to provisions dealing with appellate tribunal is another highlight of ITAA 2008.
Without any hesitation one can say that, the bulk of definition of offences is the biggest impact generated. Further all the torturous acts will also invite penal liability if mental element is present. Thus the widened scope of use of the enactment in tortuous acts is also made liable under penal law. Quite unexpected, ITAA 2008 has attempted to define all the technological misuses. Thus dissemination of offensive information, imaging of private parts of persons, terrorism using information technology, impersonation, personating, use of stolen information technology items etcetera finds place. It is to be noted that while defining tortuous acts as well as offences, ITAA 2000 and ITAA 2008 is making the mistake of stressing so much on techniques of misuse. Such a mode is in effect creating a vacuum with respect to newer technical methods of misuse. The better option is to define basing on principles so that any mode of laceration of the same will be liable irrespective of the technique employed. This will also change the need for frequent amendments. Many of the amendments in ITAA 2008 could have been avoided if this was in the mind of the framers while ITAA 2000 was enacted.
The issue of child pornography is also addressed by ITAA 2008. Further, abetting and attempt has also been made punishable. The condition that the investigating officer should be at least in the rank of deputy superintendent has been relaxed to that of inspector.
There was overriding effect to ITA 2000 over other laws, but vide ITA 2008 this overriding effect has been restricted as far as exercise of rights under copyright law and patent law. This change will definitely invite discussions in industrial fronts. The attempted point is not at all clear. A total lack of deliberations in the houses of parliament at the time of passing, one could even term this as dereliction of duty, is further complicating the reader’s agony in finding a meaning to this change. A high degree of lobbying is the only possible reason behind such an amendment. But in the enthusiasm rather than protecting some vested interest, the lobbyist and their fiddle players has invited more trouble. The confusing of protected system under ITA 2000 and protection under intellectual property rights was first was first mentioned one of High Court of Kerala’s decision (Feroz’s Case,‘Friends Jansevana Kendra’s Software Issue’). There can never be any possible conflict between issues in information technology and intellectual property rights because both are not at all connected directly. The point misquoted by the Court seems to have been perpetuated by the legislature and has actually resulting in making an admission that there can be a conflict between both. Without doubts this was the point attempted to be avoided by the lobbyist. One can definitely conclude that the attempted point has actually backfired.
The creation of Indian Computer Emergency Response Team, a federal agency, which can contribute much to avoid and warn about threats of information technology kind, is a new feature. Creation of examiner of electronic evidence for rendering of expert evidence is another contribution made by ITAA 2008. Further some amendments have been made to penal code and law of evidence by ITAA 2008.
Amendment to ITA 2000 was definitely required. Whether ITAA 2008 has succeeded in satisfying the reasons behind the need for an amendment to ITA 2000 is questionable. One should keep in mind the fact that ITA 2000 was basically a statute for facilitating e-commerce on the footstep of United Nations’ Agency’s (UNCITRAL) model law. To incorporate all legal issues with respect to information technology into such a frame work was unexpected. If the aim is to have a complete code the reliance on UNCITRAL model law is to be avoided. The error of absolute reliance on technological definitions without properly identifying the legal attributes and underlying principles is perpetuated in ITAA 2008. The inclusion of electronic signature as a means of authentication can be cited as the most crucial positive contribution of ITA 2008. Further there are some minor changes which have tried to correct the mistakes of ITA 2000. In a nutshell one can conclude that there will be further changes to the information technology law since many errors of ITA 2000 has not been answered, further some fresh errors has been contributed by ITA 2008.
The major contribution of ITAA 2008 is that, it has done away with the exclusivity given to digital signature as a means of authentication in electronic form. Henceforth, irrespective of the technique any electronic mode of authentication is signature in electronic form. However what all technique can be considered as electronic signature is to be decided by the government. Earlier in sanctifying digital signature, ITA 2000 was canvassing for a specific technology whereas with respect to electronic signature that is not the position because there is complete freedom as far as choice of technique is concerned. Nevertheless digital signature is continues to be acceptable to, thus the present position can be continued without much disturbances at the same time newer techniques can be incorporated as signatures.
Almost any kind of communication device is now within the purview of the enactment. Further the concept of intermediary has been expanded; earlier the same was limited to some specific category. But on the other hand the protection given to internet service providers has been extended to intermediaries also. It is to be noted that, the ‘bazee.com’ issue and the sentiments of the industry stands balanced by this double pronged change. With respect to formation of contract through online medium, a new provision has been devised in an attempt to answer the possible issues. By existing principles contract formation requires meeting of minds of two persons. Vide ITAA 2008 no contract will be deemed to be unenforceable merely because it was done through electronic means. It is to be noted that, even though such a protection is made whether computer can make contract is still an open ended question.
The scope of tortuous liabilities and remedies has been widened to a great extend. Further a liability has been cast on entities handling personal information. This change is to read in the light of some credit card frauds in which personal of BPO entities had used information of client. The limit of compensation or damages that could be awarded by the adjudicating officer has been increased from one crore to five crores. Further competent court have been vested with jurisdiction for any claim over and above five crores. Thus one need to conclude that the parallel mechanism that was envisaged in ITAA 2000 is now limited to claims up to rupees five crores. This change is bit confusing. Usually specialized mechanism having expertise in an area is created to deal with technical issues upon which such mechanism is having expertise. By bringing in conventional courts into the picture that logic is getting negated. Either the parallel mechanism ought to have been avoided or the parallel mechanism should be taken into confidence completely. The presence of appellate remedies is definitely a supporting argument for continuing solely with a parallel mechanism. The series of cosmetic changes has been made to provisions dealing with appellate tribunal is another highlight of ITAA 2008.
Without any hesitation one can say that, the bulk of definition of offences is the biggest impact generated. Further all the torturous acts will also invite penal liability if mental element is present. Thus the widened scope of use of the enactment in tortuous acts is also made liable under penal law. Quite unexpected, ITAA 2008 has attempted to define all the technological misuses. Thus dissemination of offensive information, imaging of private parts of persons, terrorism using information technology, impersonation, personating, use of stolen information technology items etcetera finds place. It is to be noted that while defining tortuous acts as well as offences, ITAA 2000 and ITAA 2008 is making the mistake of stressing so much on techniques of misuse. Such a mode is in effect creating a vacuum with respect to newer technical methods of misuse. The better option is to define basing on principles so that any mode of laceration of the same will be liable irrespective of the technique employed. This will also change the need for frequent amendments. Many of the amendments in ITAA 2008 could have been avoided if this was in the mind of the framers while ITAA 2000 was enacted.
The issue of child pornography is also addressed by ITAA 2008. Further, abetting and attempt has also been made punishable. The condition that the investigating officer should be at least in the rank of deputy superintendent has been relaxed to that of inspector.
There was overriding effect to ITA 2000 over other laws, but vide ITA 2008 this overriding effect has been restricted as far as exercise of rights under copyright law and patent law. This change will definitely invite discussions in industrial fronts. The attempted point is not at all clear. A total lack of deliberations in the houses of parliament at the time of passing, one could even term this as dereliction of duty, is further complicating the reader’s agony in finding a meaning to this change. A high degree of lobbying is the only possible reason behind such an amendment. But in the enthusiasm rather than protecting some vested interest, the lobbyist and their fiddle players has invited more trouble. The confusing of protected system under ITA 2000 and protection under intellectual property rights was first was first mentioned one of High Court of Kerala’s decision (Feroz’s Case,‘Friends Jansevana Kendra’s Software Issue’). There can never be any possible conflict between issues in information technology and intellectual property rights because both are not at all connected directly. The point misquoted by the Court seems to have been perpetuated by the legislature and has actually resulting in making an admission that there can be a conflict between both. Without doubts this was the point attempted to be avoided by the lobbyist. One can definitely conclude that the attempted point has actually backfired.
The creation of Indian Computer Emergency Response Team, a federal agency, which can contribute much to avoid and warn about threats of information technology kind, is a new feature. Creation of examiner of electronic evidence for rendering of expert evidence is another contribution made by ITAA 2008. Further some amendments have been made to penal code and law of evidence by ITAA 2008.
Amendment to ITA 2000 was definitely required. Whether ITAA 2008 has succeeded in satisfying the reasons behind the need for an amendment to ITA 2000 is questionable. One should keep in mind the fact that ITA 2000 was basically a statute for facilitating e-commerce on the footstep of United Nations’ Agency’s (UNCITRAL) model law. To incorporate all legal issues with respect to information technology into such a frame work was unexpected. If the aim is to have a complete code the reliance on UNCITRAL model law is to be avoided. The error of absolute reliance on technological definitions without properly identifying the legal attributes and underlying principles is perpetuated in ITAA 2008. The inclusion of electronic signature as a means of authentication can be cited as the most crucial positive contribution of ITA 2008. Further there are some minor changes which have tried to correct the mistakes of ITA 2000. In a nutshell one can conclude that there will be further changes to the information technology law since many errors of ITA 2000 has not been answered, further some fresh errors has been contributed by ITA 2008.
