The author explores the legal position on key topics of Internet and digital communications
In the network society, the Internet-connected world that sociologist Manuel Castells explores in his writings, people exchange millions of messages in real time. They live in an age of ‘mass self-communication’, and governments are at a disadvantage because people ignore authority and create meanings about their world with a sense of independence. “Mass self-communication provides the technological platform for the construction of the autonomy of the social actor, be it individual or collective, vis-à-vis the institutions of society,” Professor Castells, author of The Internet Galaxy, said recently in the aftermath of the uprising against authoritarian governments and unjust economic policies in many countries.
The power of the small people to communicate freely has provoked a backlash from governments. Some have restricted access to information networks, while others have resorted to measures aimed at punishing vocal individuals and citizen collectives. On the other hand, the network society and business use the same tools for commerce. In this new and evolving landscape, some negative aspects need to be addressed: cyber crime including fraud, peddling of offensive materials, hate campaigns, and the spread of malicious messages, to name a few. This need has provided the ground for the introduction of legislation to regulate online activities.
India’s Information Technology Act, 2000 is one. It was the response to the new reality of digital communications and is the starting point for Aparna Viswanathan’s Cyber Law. The book explores the legal position on many key topics covering the Internet and digital communications. These include electronic signatures, liability of intermediaries, types of cyber crime, ‘hacking’, encryption, data security and privacy, intellectual property and cloud computing.
Considering the importance of free speech — most people use at least a mobile phone to send out messages — and the growth of e-commerce, there is wide interest in what the law means to citizens. There are legal definitions, offences, censorship powers and punishments. Of particular concern are the specific provisions in the amended Information Technology Act of 2009, dealing with interception of communications, violation of privacy of individuals, sending offensive messages, identity theft, and power of official agencies to block content online.
A corpus of cases dealing with some of these sections is now emerging. An early landmark case was bazee.com, which considered important questions of liability and culpability where a company’s online property was used for the transmission and sale of obscene material. The discussion in the book on this case outlines the scope of the Indian Penal Code in dealing with obscenity and the liability of executives of a company hosting online content. It also explains the applicability of the IT Act in such a context, and provisions of comparable laws in developed countries such as the U.S. The insulation of companies acting as mere intermediaries to transmit information is now incorporated into the law.
Another issue that the author explains from the perspective of encryption technologies is the Blackberry interception controversy. Although the Indian government has tried to get access to all aspects of the Blackberry system, it has succeeded in getting ‘lawful’ interception only for general services, including Messenger and not the Enterprise mail used by corporate customers involving a higher level of encryption — under which the encryption keys are generated by the users themselves. In the London riots of 2011, Blackberry Messenger was cited as a key tool used by those organising protest events, while other social media could be monitored by Police. In India, during the exodus of people to the northeast in the wake of fast-spreading rumours, law enforcement attention turned to mass messaging using mobile phones and spread of fake pictures and videos online.
The book takes a close look at several sections of the Information Technology Act that come into play in such situations, notably Section 69 dealing with interception or monitoring or decryption of information and Section 69 A [power to issue directions for blocking of access of any information through any computer]. A lot of commentary has followed the blocking of websites and social media accounts in the wake of the mischievous campaigns, and the book provides legal insight on the basis of law.
There is a valuable discussion also on the foundations of privacy of data. It is vital for India to accept that information about individuals must be guarded against unlawful access in order to move ahead with the creation of identity-based databases. Privacy as a right is now recognised in the country through judicial interpretation of Constitutional rights, and it falls within the scope of Article 21. In many countries, there are specific laws and directives on the rights of people with regard to their personal data. The book discusses these, and the European Data Protection Directive provides good examples of definitions and provisions. National laws require that a ‘data subject’ is informed about who is controlling the information collected on him, the purposes of processing the data, the recipients, and existence of the right to access and rectify errors in the data. By contrast, Indian law is currently oriented towards legal requirements of companies handling data from abroad as part of the IT services, rather than the privacy of individuals.
These and many other topics covered by Cyber Law make it a useful volume. From an e-commerce perspective, it also looks at such aspects as concluding of contracts, intellectual property and copyright. As digital communications become more important, the IT Act and other connected legislation will inevitably touch everyone’s lives, particularly with regard to free speech. A broad understanding of the issues involved is necessary and such books help achieve that.
CYBER LAW — Indian and International Perspectives: Aparna Viswanathan; LexisNexis Butterworths Wadhwa Nagpur, 14th Floor, Building No. 10, Tower B, DLF Cyber City, Phase II, Gurgaon-122002. Rs. 695.