This article is written by Avani Malhotra.
Digital transformation has made it possible for individuals to uncover the internet and to communicate with anyone across the world virtually. However, this digitization has given birth to many cybercrimes. The most common cybercrimes in the country include phishing, hacking, online transaction fraud, credit card fraud, spoofing, cyberstalking, pornography etc. The author in this article discusses various cybercrimes and the remedies available to prevent and penalize them. Further, the author in this article analyses the drawback and the intricacy of the current laws and why there is a need for separate legislation to address cybercrimes.
The digital space has allowed evil-doers to exploit more internet users, creating a threat in the minds of the internet users that they are not protected online.
The Lok Sabha passed the Information Technology (Amendment) Act, 2008 with little debate on December 22, 2008. The Bill was introduced in 2006, and the Act was passed as a reactionary measure in the aftermath of the terrorist attacks in Mumbai on November 26, 2008. The fact that the Bill was not discussed prior to its passage is evident from its drafting. Aside from being poorly drafted in some places, it is also vague and criminalises offences without defining the scope of the activity that could be classified as criminal. The Rajya Sabha passed the Bill on December 23, 2008, and it received Presidential assent in early 2009. Even so, the Act did not enter into force until October 26, 2009, when the Central Government notified it. Despite being passed in such a hurry, the Act did not go into effect until a year later. This time could have been used to debate the Bill and address its various flaws. Even so, the Act did not enter into force until October 26, 2009, when the Central Government notified it. Despite being passed in such a hurry, the Act did not go into effect until a year later. This time could have been used to debate the Bill and address its various flaws. Cyber flashing is one of its kind of cybercrime where unwanted and unjustifiable media is shared which is not only an uninvited but disparaging act. Cyberstalking is another cybercrime that is most often reported, it involves approaching someone continuously through texts, e-mails, video etc. Morphing is another prevalent online crime against women. It consists of editing an original image with the intent to misuse it. Continuous technological advancement is giving birth to new forms of harassment, and the major issue is that plenty of the time such crimes go unreported because they occur digitally and by anonymous sources. In addition to the aforementioned cybercrimes, crimes such as matrimonial fraud, cyberbullying, phishing is also on the surge. In addition to the aforementioned cybercrimes such as matrimonial fraud, phishing, morphing, and cyberbullying are also on the rise. This may appear to be something that an individual can easily avoid by reporting on such social network’s sites, but that’s not the fix to the problem.
This brings out the necessity of reviewing current laws and emphasise the need for substantive cybercrimes legislation.
Criminal law and Cyber Space
In India we do not have any separate laws on cybercrime, the Information Technology Act,2000 combined with the Indian Penal Code 1860, depending on the nature of the Cybercrime gives imprisonment varying from 2 years to life imprisonment as well as fine.
The Procedure: Arrest and Search
Section 80 (1) of the IT Act states that, notwithstanding anything in the Code of Criminal Procedure, 1973, any police officer not below the rank of Inspector, or any other officer of the Central Government or State Government approved by the Central Government in this regard, has the authority to enter any premise or public place, search, and arrest without a warrant any person who is reasonably suspected. Section 80 (2) of the IT Act states that any person arrested under sub-section (1) by an officer other than a police officer must be taken or sent before a magistrate with jurisdiction over the case or the officer-in-charge of a police station without unreasonable delay.
How Does One File A Report?
A cyber-crime can be reported by:
Filing a written complaint with the nearest Cyber Cell and lodging an F.I.R. (First Information Report)
Complaints can be submitted at https://www.cybercrime.gov.in/Accept.aspx.
Obstacles in the Investigation Process
In India, investigation machines continue to use traditional tools. Due to the use of traditional methods of investigation, the rate of conviction in India is low in comparison to other countries. Investigation cannot be a standardised procedure. The method of the investigation varies depending on the demand and circumstances of the case. The first step in any cyber-related issue is to investigate the situation. As a result, the investigation process must be established, and the use of special skills and scientific tools must be considered. During the course of an investigation, an investigating officer faces a number of challenges investigation. As an example:
Jurisdiction & Issue
It is extremely difficult to define jurisdictional power in cybercrime cases. While the investigation is being carried out, the investigating agency must carry out the process of search and rescue. Seizures, for example. As a result, the most important aspect of the investigation procedure is determining jurisdiction, which is one of the most difficult tasks to perform in cybercrime cases.
IP address & Investigations
When cybercrime is committed using a system or a computer, the best way to track down the perpetrator is to use the IP address or Internet Protocol address. However, many times, criminals use proxy servers, which makes it difficult to track down the cyber-criminal using a specific IP address. Despite the fact that the 2008 amendment changed the nature of the law relating to cybercrime, there are still numerous issues confronting the investigating machines. As a result, the fundamental principle of investigation must change, and new tools and techniques must be effectively implemented.
Important Provisions under IT Act,2000
The IT Act, 2000, deals with cyber-crimes. It has categorically divided crimes into various subheads like cyberbullying, cyberstalking, cyber pornography, cyber flirting, cyber defamation, email spoofing, etc. The primary goal of the IT Act is to create a legal framework to promote e-commerce in India and thus it is inadequate to cope with cyber rights under the act. Initially, the Information Technology act covered cybercrime in a general way, later in 2008 amendments were made and cybercrimes were covered within its fold.
The IT Act 2000, divides crimes categorically into different subheadings such as cyberbullying, cyber pornography, cyber flirting, cyber defamation, e-mail spoofing, etc. However, a separate provision for the unwelcomed display of sexually explicit subjects is not available. Section 67, 67A, and 67B are the major sections that deal with obscene acts, sexually explicit acts, and transmission material depicting children in sexually explicit acts, respectively. The IT Act’s provisions are overly broad, and they fail to address crimes such as morphing, phishing, and cyberbullying. The legislature’s piecemeal approach is highly ineffective, there is a need to enact comprehensive cybercrime legislation. SC in the case of Maqbool Fida Hussain v. Raj Kumar Pandey, the supreme court used the principle ‘generalia specialibus non-derogant’, and held that when the crime committed has some nexus with electronic medium, provisions of the IT Act would apply.
A summary of the changes made in sections 66 and 67
Sections 65 of the previous act defined criminal offences. Sections 66 and 67of Chapter XI (“Offenses”). The provisions had a broad scope and included typical cybercrime without any specifics, a possible explanation for 175 of the 190 total cases booked under Sections 66 and 67 of the IT Act of 2000.18 With the addition of new offences under the IT Act of 2000. According to the Amendment Act, there are a variety of distinct offences that have criminal consequences. They have penalties attached to them. The new offences range from sending offensive messages, stealing hardware and passwords, to voyeurism, pornography, and cyber terrorism, and were added through amendments to Sections 66 and 67 of the IT Act, 2000, and are the subject of this paper. Furthermore, the civil wrongs outlined in Section 43 of the IT Act have now been designated as criminal offences under the ITAA 2008 if committed dishonestly or fraudulently.
Relevant provisions under IPC 1860
Section 354C of IPC exclusively deals with the crime of ‘voyeurism’ which also recognizes watching such acts of a woman as a crime. If the essentials of this Section (such as gender) are not satisfied, Section 292 of IPC and Section 66E of IT Act, 2000 is broad enough to consider the offences of a similar kind, Section 354D of IPC describes and punishes ‘stalking’ including both physical and cyberstalking. Section 500 of IPC penalizes the defamation of any person. Concerning cybercrimes, sending any kind of defamatory content or abusive messages through email will be attracted by Section 500 of IPC. When it comes to cybercrime, the IT Act and the IPC have provisions that overlap. This frequently leads to unnecessary confusion, so there is a need to consolidate cyber laws and enact new legislation solely addressing cybercrime. The increased traffic in the virtual world has exacerbated the threat of falling victim to cybercrime, particularly in the case of women and children, who are frequently regarded as soft targets. In the case of Maqbool Fida Hussain vs Raj Kumar Pandey it was further held that when the accused has been acquitted under provisions of the IT Act, similar provisions of the IPC would not apply.
The road ahead
The Information Technology (Amendment) Act, 2008, serves as an appropriate case study for an examination of the legislative exercise of law and policy formulation in the field of cybercrime legislation, emphasising the importance of carefully worded provisions, foresight in the drafting process, and imagination in explaining specific sections. The deficiencies of the Legislation and the resulting realistically anticipated problems reinforce the notion that criminal legislations cannot be left open to broad interpretations, particularly with regard to internet regulations, given that cyberspace provides certain liberties in action that make it easier to transgress laws, and with such characteristics inherent in the environment, any regulatory mechanism would be ineffective. Legislative measures must strive to be comprehensive, clear, and limited in their interpretive scope. While the purpose of the Information Technology (Amendment) Act was to address rising trends in cybercrime and, in effect, make it more difficult to be a cybercriminal, the irony is that the Amendment Act has resulted in a situation in which it is perhaps not ‘easier to be a criminal,’ but rather ‘easier to be classified as a criminal.’ The risk in both cases cannot be overstated.
The ever-changing ways in which we use technology to communicate have a huge impact on our lives and the lives of our families. To address the issue of underreporting cybercrime, the process of filing complaints should be simplified further, and victims’ identities should be protected. Law enforcement should be educated on the various aspects of cybercrime against women and children, and the entire redressal mechanism should be expedited. The government and its agencies must work together to raise legal awareness among all stakeholders to prevent and punish such offences. Children and adolescents are particularly vulnerable because they spend so much time on social networking sites. As a result, there is a need to educate students at the school level about the dangers of cybercrime and the importance of information security. This will not only help their impressionable young minds understand the dangers of the virtual world, but it will also make them more empathetic towards others.
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