Cybertort Imp Slides For Pub. Internet


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These are the slides of the lectures delivered by Dr. Tabrez Ahmad at National Law University Cuttack Orissa India

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Cybertort Imp Slides For Pub. Internet

  1. 1. Dr. Tabrez Ahmad Professor of Law site.technolexindia.com
  2. 2. Agenda 1. Digital Revolution and Its Effect on Management of Rights and Obligations 2. Rights and Duties in Cyberspace 3. Cyber trespass 4. Privacy in Cyberspace 5. Cyber libel 6. Cyber stalking 7. Spamming 8. Cybersquating 9. Data Protection and Identity theft 10. Protection of Content on Websites 11. Vicarious Liability of ISPs 12. Jurisdiction 13. Cases 14. Legislations 15. Future course of action Dr. Tabrez Ahmad, Blog:, 2
  3. 3. Three Outstanding Features Which MakeDigital Revolution Unique are the resultant1. Cyberspace2. Knowledge Economy3. Speed with which it has transformed industrial economy into a knowledge Economy Dr. Tabrez Ahmad, Blog: 3, 3
  4. 4. Vanishing Borders In Cyberspace• Sovereignty and exercise of Jurisdiction which are attributes of statehood are linked to territorial nexus• In Cyberspace territorial boundaries are meaningless• Internet address has no relation to the physical location of the computer or its user• Law implies the application of coercive force but this is not feasible over individuals not within the territory Dr. Tabrez Ahmad, Blog:, 4
  5. 5. Anonymity And Pseudo-anonymity • Cyberspace permits anonymity and pseudo anonymity • Users can mask their real flesh and blood identities and assume digital avtars • anonymous remailers facilitate sending messages without revealing their identity or origin Dr. Tabrez Ahmad, Blog:, 5
  6. 6. Challenge Of Cyberspace Cyberspace calls into question many traditional legal conceptions like • Ownership and Fair Use • Balance of Freedom of expression-Reputation- Privacy • Balance of Rights-Liability of Netizens and ISP • Property etc Dr. Tabrez Ahmad, Blog:, 6
  7. 7. Influence Of US Constitutional AndLegal Doctrines On Growth OfCybertort Internet is a product of US Technology, so issues relating to Internet are heavily flavoured by US Constitutional and Legal doctrines Dr. Tabrez Ahmad, Blog:, 7
  8. 8. Two Schools Of Thought OnGovernance Of CyberspaceRegulation skeptics Governments should notregulate CyberspaceReasons• Laws involved on geographical basis have no application to cyberspace which is borderless• Cyberspace transactions occur simultaneously in all jurisdictions assumption of jurisdiction by multiple states will lead to jurisdictional mayhem• Architecture of Cyberspace precludes previous notice of applicable laws Dr. Tabrez Ahmad, Blog:, 8
  9. 9. Relationship Between Law AndSocial Change“The controversy between those who believe that lawshould essentially follow and not lead and it should doso clearly formulated social sentiment and those whobelieve that law should be determined agent in thecreation of new social norms is one of the recurringthemes in the history of legal thought”Professor Wolfgang Friedmann – Law in the Changing Society Dr. Tabrez Ahmad, Blog:, 9
  10. 10. Digital Revolution Giving Way ToCybertort  The notion behind cybertort is that the Internet has created a connectedness that was not present previously  Few areas of tort are most impacted by the Internet Dr. Tabrez Ahmad, Blog:, 10
  11. 11. Dis-balance of Right DutyCo-relation due to Internet A Right Duty Co-relation B Dr. Tabrez Ahmad, Blog:, 11
  12. 12. 2. Rights and Duties in Cyberspace These include the right to: be free from any harm to system. enjoy a good reputation conduct business without unwarranted interference Dr. Tabrez Ahmad, Blog:, 12
  13. 13. 2. Rights and Duties in Cyberspace The law imposes a duty on all of us to respect the rights of others. Tort law governs this interplay between rights and duties. Dr. Tabrez Ahmad, Blog:, 13
  14. 14. 3. Cyber trespass  Trespass to Property  Cybersquating  Software piracy  Infringement to database  Infringement of the Contents on website  Linking- Surface and Deep  File sharing  Napster Case  Gnutella  Kazaa  Grokster case Dr. Tabrez Ahmad, Blog:, 14
  15. 15. 3. Cyber Trespass Cont…Trespass to person Breach of Cyber Privacy  Identity Theft  Phishing  Cyberstalking  Spamming  Hacking-Magic Lantern Technique Cyber libel Dr. Tabrez Ahmad, Blog:, 15
  16. 16. 4. Privacy in Cyberspace Privacy is deeply rooted in history and religion Several religious scriptures, texts and classical right- ups recognize the importance of privacy There is a recognition of privacy in the Quran and the sayings of Prophet Mohammed( Surah An-Noor 24:27, 24:28, Surah Al-Hujraat 49:12) The Bible has numerous references to privacy and The Jewish law has long recognized the concept of ‘freedom from being watched’ Dr. Tabrez Ahmad, Blog:, 16
  17. 17. 4. Privacy in Cyberspace cont…  The term ‘privacy’ has been described as “the rightful claim of the individual to determine the extent to which he wishes to share of himself with others. It means his right to withdraw or to participate as he sees fit. It also means the individual’s right to control dissemination of information about him.” Dr. Tabrez Ahmad, Blog:, 17
  18. 18. 4.Privacy in Cyberspace cont…  Fifty years ago, George Orwell, the English writer whose fears for the loss of individual liberty dominated his novels, imagined a totalitarian state where advanced technologies would be used to monitor the people in all their endeavors “Big brothers would be watching us and the privacy would be a thing of the past”. Orwell’s fears stands somewhat true in this era of Information and Communication Revolution (ICR) Dr. Tabrez Ahmad, Blog:, 18
  19. 19. 4. Privacy in Cyberspace cont… The new technologies have enhanced the possibilities of invasion into the privacy of individual and provided new tools in the hands of eavesdroppers. Individual privacy is at greater stake than ever before. Dr. Tabrez Ahmad, Blog:, 19
  20. 20. 4. Privacy in Cyberspace cont… International Convention  UDHR- Art. 12  International Convention on Civil and Political rights (ICCPR) -Art. 17  UN Convention on Migrant Workers (UNCMW)-Art 14  UN convention on Protection of the Child (UNCPC)- Art- 16  European convention for the protection of Human Rights and Fundamental Freedoms 1950- Art. 8  American Convention on Human Rights- Art. 11 Dr. Tabrez Ahmad, Blog:, 20
  21. 21. 4. Privacy in Cyberspace cont…Right to Privacy under Indian Constitution  Art.21  Art. 19 (2)  The court recognizes two aspects of privacy :  1. the tortuous law of privacy which affords an action for damages resulting from an unlawful invasion of privacy, and  2. the constitutional right to be let alone implicit in the right to life and liberty under Art. 21 Dr. Tabrez Ahmad, Blog:, 21
  22. 22. 4. Privacy in Cyberspace cont…Right to privacy under tort law In 1890, American Lawyers Samuel Warren and Louis Brandeis wrote a seminal piece on the right to privacy as “ the right to be left alone” Today we find four distinct common law torts that are available as remedy for breach of privacyThese are: Intrusion upon seclusion Appropriation of name or likeness Publicity given to private life Publicly placing a person in false light Dr. Tabrez Ahmad, Blog:, 22
  23. 23. 4. Privacy in Cyberspace cont…Information Technology Act 2000  Sec. 43-47 Civil Liability  Sec. 65-78 Criminal Liability  Sec. 79 Vicarious Liability of ISPs Dr. Tabrez Ahmad, Blog:, 23
  24. 24. 5. Cyber Libel Reputation-damaging statements or publications can be made anywhere in cyberspace, potentially unlimited audience: • Websites • Blogs • Message Boards • Chat Rooms • Email • Online Journals • Use of Hyperlinks Dr. Tabrez Ahmad, Blog:, 24
  25. 25. 5. Cyber Libel Cont… Online Defamation: An online message attacking another person or entity in harsh, often personal, and possibly defamatory, terms. Online defamation is difficult to combat because:  the Communications Decency Act of 1996 absolves Internet service providers (“ISPs”) from liability for disseminating defamatory material  the Internet affords a high degree of anonymity to the person who posted the defamatory message. Dr. Tabrez Ahmad, Blog:, 25
  26. 26. 5. Cyber Libel Cont…  Defamation--can be oral or written  By and large cyberspace defamation is written so libel standards apply  Defamation requires a showing that  The defendant made or repeated false statements  that were witnessed by third parties, and  Harmed the reputation of the plaintiff  If the media is the defendant and the pl. is a public figure, the pl. must show that the def. knew or should have known that the statements were false Dr. Tabrez Ahmad, Blog:, 26
  27. 27. 5. Cyber Libel Cont…  The crucial issue in cyberspace defamation cases is how to treat ISPs  If the ISP is treated as a publisher, then they have tremendous liability exposure  If the ISP is treated as a bookstore, then they are basically not liable for the contents of those using their service unless they contribute to the content of the message  Bookstores are treated as distributors of the material and are not liable unless they knew or should have known that the material they transmit is defamatory Dr. Tabrez Ahmad, Blog:, 27
  28. 28. 5. Cyber Libel Cont…  In the early cases, liability of the ISP was based on whether the ISP supervised the content of the users of their service  The unfortunate result was that ISPs that tried to clean up content of users in terms of obscenity, were liable for defamatory content of other users  Congress did not like this outcome so they passed the Communications Decency Act (CDA) of 1996  Section 230(C) of the CDA provides that no  “… provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Dr. Tabrez Ahmad, Blog:, 28
  29. 29. 6. Cyber stalking Dr. Tabrez Ahmad, Blog:, 29
  30. 30.  Threatening Communications/ CyberHarrassment/Cyberstalking Dr. Tabrez Ahmad, Blog:, 30
  31. 31. 7. Spamming Spam: Bulk, unsolicited e-mail or newsgroup postings – usually an advertisement for the “spammer’s” product or service sent to all users on an e-mailing list or newsgroup.  Some states regulate or prohibit the use of spam, giving recipients of unwanted spam, and even ISPs, legal bases for blocking spam and for recovering against spammers. Who should be liable for “spam” and computer viruses that cause injury?  Federal CAN-SPAM Act 2003. Dr. Tabrez Ahmad, Blog:, 31
  32. 32. What is Phishing?--- listening to music by the band called Phish--- a hobby, sport or recreation involving the ocean, rivers orstreams…nope “Fishing for personal information”  Use “spoofed” e-mails and fraudulent websites designed to fool recipients into divulging personal financial data such as credit card numbers, account usernames and passwords, social security numbers, etc.  Anti-Phishing Working Group Dr. Tabrez Ahmad, Blog:, 32
  33. 33. Prevent Phishing from Fraud Watch International Never click on hyperlinks  Keep computer clean from Use Anti-SPAM filters Spyware Use Anti-Virus Software  Know Fraudulent activity on Use personal firewalls the Internet  Check your credit report Keep all software updated immediately for free! Always look for https and  If unsure, ask! sites that ask for “personal information” Dr. Tabrez Ahmad, Blog:, 33
  34. 34. What is ID Theft?“Identity theft is a crime in which an imposter obtains key pieces of information such as Social Security and drivers license numbers and uses it for their own personal gain.” ID Theft Resource Center Dr. Tabrez Ahmad, Blog:, 34
  35. 35. What is Spyware?Any technology that aids in gathering information about a person or organization without their knowledge. On the Internet (where it is sometimes called a spybot or tracking software), spyware is programming that is put in someones computer to secretly gather information about the user and relay it to advertisers or other interested parties. Dr. Tabrez Ahmad, Blog:, 35
  36. 36. What is Adware?Any software application in which advertising banners are displayed while the program is running. The authors of these applications include additional code that delivers the ads, which can be viewed through pop-up windows or through a bar that appears on a computer screen. Dr. Tabrez Ahmad, Blog:, 36
  37. 37. CYBERSQUATTING: Anti Cybersquatting ConsumerProtection Act (ACPA) Under 15 USC 1125(d)(1)(A): The registration of a domain name with bad faith intent to profit from the mark of another. Taking another’s trademark as your secondary level domain name constitutes the act of Cybersquatting. This is as much an act of piracy as copyright or patent infringement. Dr. Tabrez Ahmad, Blog:, 37
  38. 38. Cybersquatting Elements: Registers, traffics in, or uses a domain name of a mark that is distinctive at the time of registration of the domain name that is identical or confusingly similar to that mark or of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark. With the bad faith intent to profit from that mark Dr. Tabrez Ahmad, Blog:, 38
  39. 39. Cybersquatting Bad Faith Intent to Profit - Factors: The trademark & intellectual property rights of the parties The extent the Domain Name consists of another’s mark or name Prior uses if any of the Domain Name in offering goods/services Any “fair use” factors like non-profit An intent to divert traffic (users) to another site than the trademark owner’s. Intent to Dilute Offering to sell the Domain Name. Dr. Tabrez Ahmad, Blog:, 39
  40. 40. What is Identity Theft? Dr. Tabrez Ahmad, Blog:, 40
  41. 41. 9. Data Protection and IdentityTheftConversion of Data or Information Test: Is there an unauthorized or wrongful exercise of dominion and control over personal property? • Thyroff v. Nationwide Mut. Ins. Co., 8 N.Y.3d 283 (N.Y. 2007)–common law conversion applies to electronic data Dr. Tabrez Ahmad, Blog:, 41
  42. 42. Identity Theft Identity theft is a crime of stealing key pieces of someone’s identifying information, such as: name, address, Social Security number, birth date, and mother’s maiden name Dr. Tabrez Ahmad, Blog:, 42
  43. 43. If You’re a Victim...1. Contact the fraud departments of the three major credit bureaus.2. Contact creditors or financial institutions for any accounts that have been tampered with.3. File a report with local police or police where the theft took place. Dr. Tabrez Ahmad, Blog:, 43
  44. 44. 10. Protection of content onWebsites File sharing  Napster Case  Gnutella  Kazaa  Grokster Dr. Tabrez Ahmad, Blog:, 44
  45. 45. 11. Liability of Internet Service Providers (ISPs) Should an Internet Service Provider (ISP) be liable for the actions of its subscriber? Dr. Tabrez Ahmad, Blog:, 45
  46. 46. 13. Imp. Legislations UNCITRAL Model Law of E-Commerce World summit on Information Society( WSIS) United Nations Commission on Trade and Development( UNCTAD) Council of Europe (European Convention on Cyber Crime 2001) World Trade Organisation ( WTO), TRIPS etc. World Intellectual Property Organisation, WCT, WPPT Dr. Tabrez Ahmad, Blog:, 46
  47. 47. Indian Legislations Information Technology Act 2000., came into force on 17th October 2000. Information Technology (Amendment Act 2008) came into force on 27th October 2009. Dr. Tabrez Ahmad, Blog:, 47
  48. 48. IT Act 2008 Amendment Act Some of the major modifications are: 1. A special liability has been imposed on call centers, BPOs, banks and others who hold or handle sensitive personal data. If they are negligent in "implementing and maintaining reasonable security practices and procedures", they will be liable to pay compensation. It may be recalled that Indias first major BPO related scam was the multi crore MphasiS- Citibank funds siphoning case in 2005. Under the new law, in such cases, the BPOs and call centers could also be made liable if they have not implemented proper security measures. Dr. Tabrez Ahmad, Blog:, 48
  49. 49.  2. Compensation on cyber crimes like spreading viruses, copying data, unauthorised access, denial of service etc is not restricted to Rs 1 crore anymore. The Adjudicating Officers will have jurisdiction for cases where the claim is upto Rs. 5 crore. Above that the case will need to be filed before the civil courts. 3. The offence of cyber terrorism has been specially included in the law. A cyber terrorist can be punished with life imprisonment. 4. Sending threatening emails and sms are punishable with jail upto 3 years. Dr. Tabrez Ahmad, Blog:, 49
  50. 50.  5. Publishing sexually explicit acts in the electronic form is punishable with jail upto 3 years. This would apply to cases like the Delhi MMS scandal where a video of a young couple having sex was spread through cell phones around the country. 6. Voyeurism is now specifically covered. Acts like hiding cameras in changing rooms, hotel rooms etc is punishable with jail upto 3 years. This would apply to cases like the infamous Pune spycam incident where a 58-year old man was arrested for installing spy cameras in his house to snoop on his young lady tenants. 7. Cyber crime cases can now be investigated by Inspector rank police officers. Earlier such offences could not be investigated by an officer below the rank of a deputy superintendent of police. Dr. Tabrez Ahmad, Blog:, 50
  51. 51.  Collecting, browsing, downloading etc of child pornography is punishable with jail upto 5 years for the first conviction. For a subsequent conviction, the jail term can extend to 7 years. A fine of upto Rs 10 lakh can also be levied. 9. The punishment for spreading obscene material by email, websites, sms has been reduced from 5 years jail to 3 years jail. This covers acts like sending dirty jokes and pictures by email or sms. 10. Refusing to hand over passwords to an authorized official could land a person in prison for upto 7 years. Dr. Tabrez Ahmad, Blog:, 51
  52. 52.  11. Hacking into a Government computer or website, or even trying to do so in punishable with imprisonment upto 10 years. 12. Rules pertaining to section 52 (Salary, Allowances and Other Terms and Conditions of Service of Chairperson and Members), 13. Rules pertaining to section 69 (Procedure and Safeguards for Interception, Monitoring and Decryption of Information), Dr. Tabrez Ahmad, Blog:, 52
  53. 53.  14. Rules pertaining to section 69A (Procedure and Safeguards for Blocking for Access of Information by Public), 15. Rules pertaining to section 69B (Procedure and safeguard for Monitoring and Collecting Traffic Data or Information) and 16. Notification under section 70B for appointment of the Indian Computer Emergency Response Team. 17. Rules Rules pertaining to section 54 (Procedure for Investigation of Misbehaviour or Incapacity of Chairperson and Members), Dr. Tabrez Ahmad, Blog:, 53
  54. 54. 14. Imp. Cases Yahoo Inc. v. Akash Arora Styam infoway v. Siffy Napster Case USA Grokster case USA Dr. Tabrez Ahmad, Blog:, 54
  55. 55. Cyber trespassCases Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (Cal. App. 1996) (hacking) • Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003) (email) • CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Oh. 1997) (commercial email) • ebay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000) (“ Dr. Tabrez Ahmad, Blog:, 55
  56. 56. Dr. Tabrez Ahmad, Blog:, 56
  57. 57. 15. Future course of action• LEGAL PROBLEMS OF THE NEW TECHNOLOGY• APPLICATION OF JURISPRUDENTIAL CONCEPTIONS TO CYBERSPACE.• Forensic Computing- Forensic Evidence Dr. Tabrez Ahmad, Blog:, 57
  58. 58. Dr. Tabrez Ahmad, Blog:, 59