cyber crime

In this article, Neha Susan who is currently pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata does an analysis of Cyber crime and social media websites.

INTRODUCTION

Social Networking sites have been in the limelight for more a decade.  These websites have created an epoch in the history of cyber space influencing netizens in their personal sphere as well as professional level. Today, there are not merely medium of communication to keep in touch with old and new friends but rather have become a public forum to voice opinions and mobilise people for a global revolution. Popular social networking websites include Facebook, LinkedIn, Instagram, Twitter, Orkut. The growth and impact of these websites at an exponential rate have attracted the cyber offenders to commit cybercrimes in social media posing threat to privacy of individuals as well as national security. National Investigation Agency through its sources has informed that every sixth cybercrime in India is committed through social media. There has been around 70% rise in cybercrimes annually between 2013 and 2015 according to data provided by National Crime Records Bureau (NCRB)[1].According to a report from Symantec, a security solutions provider, India ranked second among nations that were most targeted for cybercrimes through the social media in 2014, after the US[2]. Today cybercrimes are manifested in many forms to commit offences related to privacy, defamation, misrepresentation of identity, obscenity, cyber terrorism, etc.

INFLUENCE OF CYBER CRIMES IN SOCIAL MEDIA

“Cybercrime” is a combination of two terms “crime” with the root “cyber” derived from the word “cybernetic”, from the Greek, “kubernân”, which means to lead or govern. The “cyber” environment includes all forms of digital activities, irrespective of whether they utilise single network. Cyberspace is borderless as no Courts across the globe can claim jurisdiction. Any illegal act which involves a computer, computer system or a computer network is cybercrime.  Further, any offence taking place on the computer can be said to be a cyber-offence. The IT Act distinguishes between cyber contraventions and cyber offences.  Former is a violation of law or rule of procedure which may or may not attract a liability to pay a penalty as the offender faces civil prosecution. However, an offence is an act prohibited and made punishable by fine and/ or imprisonment as the offender faces criminal liability[3].

Primarily, cyber-attacks can be found in three forms. First, they attack electronic identity. With use of sophisticated malware tools, they get hold of sensitive personal information available in social media and other shopping websites; they steal credit information or create fake identity in social media. Second, attack on women and minors.  Child Pornography is an industry that thrives on the growth of the cyber space. Women and children are most frequently victimised compared to men by sharing obscene pictures or violent videos in virtual world harming their reputation. Youngsters are often lured by hoax messages and fake identities in social media and they fall prey to offenders in cyberspace as well as real world. Third, attack on infrastructures. Infrastructures are often easy targets of the cyber terrorism. These attacks on vital services can paralyse a nation by causing unprecedented impact on economy, health care, military, power and more[4].

The Oxford Dictionary defines a social network as “A dedicated website or other application which enables users to communicate with each other by posting information, comments, messages, images, etc.” This could be in form of social media websites, blogs, and chat rooms. Anonymity and fake identity are the hallmark of the cybercrimes. Lack of awareness among netizens, poor security features associated with these websites and overuse of social media has enabled cyber offenders to engulf these innocent people into fraudulent or any other criminal transactions.

Cybercrimes that are commonly prevalent in social media are cyber defamation, cyber obscenity pornography, cyber stalking, hacking, privacy infringement, internet fraud, unauthorized disruption of computer system through virus and using any person’s copyright[5].

IMPACT ON PRIVACY

Privacy involves the right to control one’s personal information and the ability to determine how that information should be obtained and used. “Right to Privacy” is recognised as Fundamental Rights under Article 21 of the Constitution of India which deals with the right to life and liberty. Although, right to privacy do not find explicit mention in Constitution, this has been recognised in various judicial pronouncements. However, the ramifications of right to privacy in virtual world are not settled issue.

The possible privacy infringement in social media can be illustrated through examples of Facebook and Orkut. Orkut once touted as the one of the first popular social networking site lost its shine when Facebook came into picture. Many have not deactivated their account and hence were available in public for exploitation of sensitive personal information. Public search option available in Facebook enables the personal information of users to be exposed to anyone who types the name in the search engine.  By opting ‘Public’ in privacy settings with respect to information as gender, networks, username , email id, phone number, pictures and videos poses a risk to the identity of the person. Further, use of applications and games available in social media runs a grave risk to identity of the person. These applications do not work in secure mode. They further seek access to all personal information.

Cyber-attack on social media is generally understood as an infringement of the Data Protection laws.  An individual’s details like name, address, interests, family, etc. are often available on various social media web sites. In India, data protection is governed by Sections 43A, 72A, 69 and 69B of the IT Act.

Section 43A widens the scope of data protection by inclusion of definition of “Sensitive Personal Data or Information”, and also imposes a responsibility for “Reasonable Security Practice” to be followed by the data handlers. In case of infringement, data handlers and cyber offenders can be slapped with an exorbitant penalty which may even exceed Rs. 5 crores.  Section 72A specifies liability for intermediary if he discloses “personal information” which he accessed while providing services under a contract and such disclosure was made with an intention to cause or knowledge that he is likely to cause wrongful loss or wrongful gain to a person. Sections 69 and 69B empower the State to issue directions for interception, monitoring and even collection of traffic data or information through any computer resource for cyber security.

LEGAL FRAMEWORK IN INDIA

Cyber Defamation

Cyber defamation refers to publication of defamatory content in electronic form. In order to determine cyber defamation, the Court has taken into consideration factors like time of occurrence, mode of publication and jurisdiction.  Being borderless, determination of jurisdiction is a difficult job. In Joseph Gutnick v. Dow Jones & Company Inc.,  the High Court  of Australia upheld that the place of publication (or the jurisdiction) is the place where the defamatory statement is made and that place is the one in which that particular information is downloaded and not where the statement is uploaded or where the publisher’s server resided[6].  Cyber defamation is punishable under Indian law by reading Section 499 of Indian Penal Code (“IPC”) and Section 4 of the IT Act. Earlier, cyber defamation was also recognised in S.66A which penalises the publication of information that is grossly offensive. However, this is struck by Supreme Court as it violates Article 19 (1) (a) of the Indian Constitution[7].

Cyber Pornography

Cyber pornography or cyber obscenity, which includes pornographic websites, pornographic magazines, provides an online medium for stimulating sexual behaviour. Earlier, the test of obscenity is the Hecklin’s test- ‘the tendency to deprave and corrupt those whose minds are open to such immoral influences’ is considered to be obscene[8]. In Ranjeet Udeshi v. State of Maharastra, the Supreme Court interpreted the word ‘obscene’ as that which is ‘offensive to modesty or decency, lewd, filthy and repulsive’[9]. Hence obscenity without a social purpose or profit cannot claim protection under ambit of the free speech. Further, in Ajay Goswami v. Union of India, the Supreme Court propounded that the test for judging a work should be that of “an ordinary man of common sense and prudence and not an out of ordinary or hypersensitive man[10]”.

ICANN (Internet Cooperation for Assigned Names and Numbers) have given formal recognition to cyber pornography with the recognition of ‘.xxx’ domain[11]. However, child pornography is deeply condemned across the world. Inspired by Article 9 of Convention of Cyber Crime, IT Act under 67B penalises child pornography. Cyber obscenity is criminal offence. It imposes a liability on offender on the basis of Sections 66E and 67. Section 66E protects bodily privacy by imposing punishment on the person who captures pictures of private parts of a person without consent. Publication and transmission of sexually explicit content in online medium is prohibited under Section 67A.

Cyber Stalking

This includes the acts to harass or contact another in pursuance of stalking another person by keeping anonymous identity using the electronic medium. The Criminal Law (Amendment) Act, 2013 adds a new section 354D to penalise stalking.

Fradulent Transactions And Misrepresentations

Impersonation is one of the most widely seen fraudulent transactions in social media. Social Networking websites are replete with fake profiles which are created with the sole purpose of taking out information and other personal details like bank account number, credit card number.

Virus Attack

Virus attack is generally executed by sending messages on social networking websites or asking the person to open the link the computer. Virus contamination destroys, alters, damages data residing in computer or cloud.          Section 43 (c) of the IT Act imposes liability upon the offender to pay compensation to the person who is affected by introduction of any computer contaminant or virus into any computer, computer system or computer network.

Hacking

Hacking is usually a premeditated process, where the hacker studies security features of the target and develop programs pursuant to it, to gain unauthorized access. In simple terms, hacking means trespass in virtual world. Section 43 of the IT Act imposes punishment for unauthorized access to a computer resource committed “dishonestly or fraudulently”. Here, the aggrieved party must prove mens rea.

OTHER PREVENTIVE MEASURES

In order to improve cyber security various precautionary steps can be kept in mind by netizens. These include:

  • Always avoid sending any photograph online particularly to unknown friends or strangers in order to avoid misuse of photographs.
  • Always update anti -virus software to guard against virus attacks.
  • Backing up files enable to prevent data loss due to virus attack.
  • Payment made for accessing games and applications in social networking sites must be made in secure payment system to avoid invasion of credit information.
  • Kids must be given awareness classes about the social media cybercrimes.
  • Security programme that gives control over cookies must be preferred.
  • Website owners and intermediaries must monitor traffic and regulate any abnormality on the website.

CONCLUSION

Cybercrimes have been menacing the social media since its inception. This is manifested in form of fraudulent transactions, hacking, virus attack, cyber defamation and cyber stalking. Even though India has effective laws to deals with these crimes, the conviction rate is negligible. Cyber Forensics is a growing area. It must be promoted to determine methods to detect Cyber Evidence. Further, necessary amendments must be made   in Indian law to be read harmoniously with IT Act in order to control Cybercrimes.

[1] Every Sixth Cybercrime In India Is Committed Through Social Media:NIA http://www.hindustantimes.com/india-news/every-sixth-cybercrime-in-india-committed-through-social-media-nia/story-KscgnwjcTZ0pzVeVaOiN6M.html (Last accessed on 26 February 2017).

[2] India ranks second in cyber attacks through social media Yuthika Bhargava April 22, 2015http://www.thehindu.com/news/national/india-ranks-second-in-cyber-attacks-through-social-media/article7130961.ece

[3] 4 Section 2(n) of the Code of Criminal Procedure, 1973 and Section 40 of Indian Penal Code, 1860.

[4] A Study on Cyber Crime and Security Scenario in INDIA Yougal Joshi1 , Anand Singh International Journal of Engineering and Management Research, Volume-3, Issue-3, June 2013

 http://www.ijemr.net/DOC/AStudyOnCyberCrimeAndSecurityScenarioInINDIA(13-18)48f66c6f-4d11-4f64-95ec-a3600f6cd9d3.pdf

[5] Legal Implications of Cyber Crimes on Social Networking Websites , Nikita Barman, International Journal of Scientific and Research Publications, Volume 5, Issue 12, December 2015 http://www.ijsrp.org/research-paper-1215/ijsrp-p4850.pdf

[6] Joseph Gutnick v. Dow Jones & Company Inc. [2001] VSC 305.

[7] Sreya Singhal v. Union of India AIR 2015 SC1523.

[8] Regina v.Hicklin (1868) 3 QB 360.

[9] Ranjeet Udeshi v. State of Maharastra AIR 1965 SC 881

[10]Ajay Goswami v. Union of India (2007) 1 SCC 169.

[11] “Here it comes: Porn sites to get .xxx”, Times of India, 26-06-10,

http://timesofindia.indiatimes.com/world/europe/Here-it-comes-Porn-sites-to-get-xxx-name/articleshow/6092763.cms

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