This article is written by Aditya Dubey, student of Indore Institute of Law, Indore. The author in this article has discussed the concept of wrongs committed online with the major focus being, the development of torts in the cyber world.
With the invention of computers and the emergence of the internet, a new category of tort has sprung into existence, namely cyber torts, such torts are committed in various ways which are explained later on in this article, but the medium through which they are committed are always virtual machines, such as, a computer, a mobile phone, or any device which can be used to access the internet and change information there.
What is a tort?
A tort is a civil wrong for which a remedy is given in terms of damages, the damages that are paid to the plaintiff (the person who suffers the damage and brings the suit to the court of law) against the defendant (the person who commits the tort against the plaintiff and has to prove of his innocence in the court) in terms of unliquidated damages (those damages whose amount for the remedy is not fixed, it is fixed in accordance with the tort which is committed against that person).
The word “tort” originates from the French language, in English, it is equivalent to term “wrong” and it is derived from the Latin word “tortum” which means “wrong or injury” and the word tortum is developed from the word “torquere” which means “to twist”. It is simply a breach of duty which amounts to a civil wrong.
A person who commits a tort is called as a tortfeasor and if there are multiple persons involved, then they are called joint tortfeasor as they are jointly liable for the tortious act and they can be sued individually or jointly.
Essential Elements of a tort
There are three essential elements which constitute a tort, these are
(1) A Wrongful act
A wrongful act is any act which is violative of the law.
(2) A duty imposed by the law, and
A duty which is legally enforceable in the courts if violated.
(3) The act must give rise to legal or actual damage.
The wrongful act must give rise to a remedy in a suit for either liquidated damages (fixed value) or unliquidated damages(value not fixed).
What are Cyber wrongs?
Computer wrongs include both civil wrongs as well as criminal wrongs, Cyber wrongs are the wrongful acts committed over the internet, the only difference between a wrong and a cyber wrong is that a cyber wrong involves the usage of technology in the commission of it i.e. the medium through which a cyber wrong is committed is through technology, in the cyber world, cyber wrongs are of two kinds, namely,
1. Civil cyber wrongs, such as a cyber tort, or
2. Criminal cyber wrongs.
Civil Cyber Wrongs
A civil cyber wrong is one which is committed online and is civil in nature, such as a tort of defamation committed online through a computer (or any device which has access to the internet and is able to modify the information or post anything online, such as a mobile phone, or a tablet) is used as a tool to commit that kind of wrong. Although not defined or addressed as civil cyber wrongs, the essence of civil liability is defined under section 43 of the IT Act, 2000.
Criminal Cyber Wrongs
A criminal cyber wrong is a serious threat and it must be dealt with as soon as possible, a criminal cyber wrong is a criminal wrong committed online through the use of technology, crimes such as Hacking, information theft, denial of service attacks, etc. Although not addressed as criminal cyber wrongs in any acts, but various wrongs of criminal nature are defined under the IT Act, 2000, such as Child pornography defined under Section 67-A of the act.
The distinction between a conventional and a cyber tort
There is basically no difference between a conventional tort and a cyber tort other than the fact that a cyber tort is committed through a virtual medium, such as a computer, a mobile phone, a tablet, etc.
Example: A, a reporter, publishes an article in a renowned newspaper about B, making derogatory statements about B’s sexual preference without B’s approval. Thus resulting in B being secluded by his friends, and family, who have read about B in the newspaper. Here B can sue A for the tort of defamation. Suppose if the defamation was done online by an article published on the newspaper’s website by A with the same information then it will be addressed as cyber defamation.
The distinction between cybercrime and a cyber tort
A cyber tort is a key factor in the infringement of a person’s right to privacy in the cyber world as well as in the real world, while on the other hand, cybercrime is a very heinous crime which affects not only the individual himself but the society also. Though both of these may include similar offences such as cyberstalking or cyber obscenity, they differ in terms of the intensity of the offence committed.
How technology has changed the entire world
- Over the years, technology has changed our world in a revolutionary way, it has created amazing tools and resources which put very useful information at the fingertips of each and every individual.
- Digital revolution has been both a boon, as e-filing in the courtrooms has now become a consistent thing and now information regarding cases is being posted online on the websites and a curse since the wrongs which were previously possible in the real world, some of them are also possible in the virtual world, such as, digital defamation, cyberstalking, etc.
- Through e-governance, it has become very easy for the government of India for giving government services, exchange of information, etc thus resulting in the minimalistic usage of paper and promoting the technological sector. It becomes easier to access everything online rather than through papers and files.
- The cyber world has a different set of rules from that of the real world as a large or small nation can field a cyber technology capability for legitimate or even illegitimate reasons, even terrorist organisations such as ISIS can field a powerful cyber organizations by using social media for their propaganda and have cyber units which can hack sensitive information from larger and more advanced nations, such as the United States of America.
- India is new to the digital world and still needs some more time to have an effective stand in the cyber world. The cyber technology poses huge security issues as well, as battlefield tactics, sensitive information regarding the nation, the deals that the nation is about to do with some other nations, can also be hacked and leaked online.
- The expanded number of complexities in the field of online security has resulted in a continuing need for career personnel in the law enforcement, security protection, and counterterrorism fields. All of these require individuals to have a solid educational background as well as the job requirements. Even online legal education platforms have launched various courses including courses.
What is Cyber World?
Through the ascension of technology and the evolution of digital age, a new virtual world has been created online which is called a cyber world. It is still new and developing every day and in some ways is very much similar to the real world except for the person being virtually present in the cyber world instead of the real world. Technology and the rise of the cyber world have resulted in ease of communication, ease of payment, ease of gathering information, etc. But this has also resulted in misuse of these privileges by some individuals with mala fide(Evil) intention, thus cyber wrongs are committed when such privileges available online are taken advantage of.
Concept of tort in the cyber world
A tort, as mentioned previously, is a negligent or an intentional act which is done by someone that injures someone else in some way, either physically or through violating their legal rights. Cyber torts are torts committed over cyberspace. These are very important as they are on the rise and can have serious repercussions on society. Everyone in society should be aware of the dangers and the damage that is caused due to cyber torts because technology has become an essential part of everyone’s life.
Some examples of Cyber tort are harassment via e-mails, cyberstalking or cyber harassment, or cyber defamation.
Various Kinds of cyber torts
Cyber torts are committed in various ways, these include:
- Cyber Stalking or Cyber Harassing.
- Harassment via E-mails
- Cyber Stalking or Cyber Harassing.
- Harassment via E-mails
- Cyber defamation.
- Unauthorised access over someone’s virtual machine.
- Fraud and Cheating.
Cyberstalking involves following a person’s online presence on various social media or other websites, by posting messages which can be threatening also as well as posting on bulletin boards.
Harassment via e-mails
Harassment via emails is a very old concept and has been there since the initial days of electronic mails, it is very much similar to the concept of harassment via letters in real life.
Pornography on the internet has various forms. It may also include prohibited material such as child pornography, which is a heinous crime in real life as well.
Defamation is an act of making a statement about an individual which may lower his reputation in the eyes of the right thinking people. It can be written and oral also. Cyber defamation is very similar to defamation in real life except for the involvement of a virtual machine. Cyber defamation is that kind of defamation which is done through the virtual medium.
Conventional vandalism means to deliberately destroy or damage the property of someone. Thus cyber-vandalism means to deliberately put any kind of physical harm to anybody’s computer or virtual machine. These acts may be in the form of theft of a computer or any peripheral of the computer also.
Unauthorised access over someone’s virtual machine
The activity of gaining access to someone else’s virtual machine without their consent is also a cyber tort as it is a violation of their private space.
Trafficking is of many kinds, it may be in drug, ammunition, or even human beings, etc. Trafficking is taken a form with the ascension of the internet as cyber trafficking has also developed, where the process of trafficking is done online through the use of a virtual machine.
Fraud and Cheating
Online fraud and cheating have become one of the biggest threats the government has to deal with. These include Credit card crimes, fake job offerings, misappropriation, etc.
Example: Some organisations of hackers are specifically made to create fake links and send them as emails in order to gather information related to the credit cards.
Modes of Committing a cyber wrong
There are many ways in which a cyber tort is committed, many of which are discussed below,
- Email bombing: This kind of mode refers to sending a good number of emails to an individual thus overloading the server.
- Social Media: Posting Wrong information publicly about a specific individual via social media.
- Theft of information: Certain spam emails are sent to every email account, clicking on which, and filling information in which results in the loss of personal information.
Example: When a person receives random emails containing links to an exact replica of any website which requires personal information to be filled to log in, filling the information gives the user whoever has created the replica all the information and access to the account which, the victim was trying to access.
- Message boards or Chat rooms: Message boards or chat rooms may lead to cyberstalking.
Example: Certain groups of people create websites targeting individuals suffering from mental illness or depression and are made to believe that there is no hope in continuing with their lives anymore through these message boards or chat rooms.
- Trojan attacks: Also called as Trojan horse, these are the kind of software which gets installed in the computer by acting as an authorised software while not being an authentic software originally. This software gains administrative access to the computers passively without letting the real owner know.
- Data dwindling: These kinds of attacks involve changing raw data before a computer process is complete and then restoring the information back to how it was previously.
- Denial of service attack: In this kind of mode, a server is flooded by requests which may end up crashing the server, thus preventing the site to function.
- Virus’: These are the programmes which attach themselves to a computer and start multiplying to stop fill the data of the computer by gaining administrative access to the computer.
People who may commit a cyber wrong
1. People between the age group of 6-16 years(Juveniles).
People of this age group are not mentally developed well enough to know of the outcome of the act they may end up committing, generally cyber wrongs committed by these individuals are committed without even realising that such a wrong is being committed.
2. People who are unaware of cyber wrongs.
There is still a large group of people in India who are unaware of the wrongs which they may end up committing online without realising of the outcome of their actions or the penalties of the offences that they may commit, usually people in underdeveloped countries may do these wrongs as there aren’t proper rules and regulations against these because technology may still a relatively new term in these nations.
3. Organised hackers
Certain organisations are formed by hackers whose only goal is to fulfil political bias, or fundamentalism, etc.
Example: Organised hackers hired unofficially by political parties to work online and post stuff against their competitors which a person would normally not do, or even hack their official website and change the entirety of it. Such as when BJP’s official website was hacked in March, 2019.
4. Professional hackers
Independent hackers are normally responsible for all kinds of cyber wrongs that are committed online.
Example: Individual hackers who are not affiliated with any organisation are hired by individuals to do a specific task online against any individual.
5. Terrorist groups
Terrorist organisations play an important role in the world of cyber wrongs, as they are the ones responsible for motivating and hiring youth into their organisations to fulfil their agendas, such a thing is fulfilled by using social media as a medium to connect to possible individuals and thus they are manipulated over the internet to do certain acts which may be against an individual or against the state.
In order to deal with the wrongs happening in the cyber world, the Information technology act was adopted in the year 2000.
- The main purpose of this act was to provide legal recognition to facilitate electronic records with the government. India has many laws that are codified very well and are relevant to this day and age, however, with the ascension of the internet, came new legal issues related to it.
- The existing laws that were enacted in the past were enacted while keeping in mind of the society back then, the political, economic, as well as, in accordance with the culture back then. There was no internet in the past so there was no need for cyber laws, however, that is not the case anymore, as we have entered the cyber era and to deal with the legal issues related to the internet and the cyber world.
- The laws which were in India could not be interpreted in the context of the offence committed online hence the need for creation and enactment for cyber laws was felt as none of the already existing laws gave any legal validity to the activities in the cyber world.
- According to its section 1(2), the act extends to the whole of India and also applies to any offence or contravention committed by anyone outside of the Indian territory as well, this is further mentioned in section 75 of the act. But without a signed extradition treaty arrangement, a trial of such wrongs is very complicated.
- The act has been made to deal with all the cyber wrongs that could happen over the cyberspace.
- The Act was amended in the year 2008, and the establishment of cyber appellate tribunals was defined under the Section 48 of the act, the tribunal was established to deal with all the issues related to the cyber world in India and it has the same powers as that of a civil court.
- The amendment of 2008 made many changes and also added many changes to the act, such as, redefining the term “communication devices” as well as making the corporations liable for the breaches which may occur due to security issues due to poor implementation of data security practices.
It is not possible for any government of any nation to prevent cyber torts or any other online wrongs committed on a daily basis by people. But it is possible for the governments to adapt and evolve their technology and keep a check on the online activities of everyone in the cyberspace.
As historically speaking, there has been no legislation in any world which has been able to eliminate a wrong against which it has been created. Same goes for the cyber laws in India as the cyber world is ever growing, more new ways are developing every day in which loopholes on the internet are being found and wrongs are being committed.
As a lot of people may be unaware of the wrongs that can happen online and the penalties associated with them, the government should devise a strategy to publicise the offences and the penalties associated with them so that even a regular individual can be informed of the outcome of such actions.