Computer or Cyber Crime

Computer crime, or cybercrime, is any crime that involves a computer and a

network. The computer may have been used in the commission of a crime, or it
may be the target.Netcrime is criminal exploitation of the Internet, inherently a
cybercrime. Dr. Debarati Halder and Dr. K. Jaishankar (2011) define
Cybercrimes as: "Offences that are committed against individuals or groups of
individuals with a criminal motive to intentionally harm the reputation of the
victim or cause physical or mental harm, or loss, to the victim directly or
indirectly, using modern telecommunication networks such as Internet (Chat
rooms, emails, notice boards and groups) and mobile phones (SMS/MMS)".
Such crimes may threaten a nations security and financial health Issues
surrounding these types of crimes have become high-profile, particularly those
surrounding hacking, copyright infringement, child pornography, and child
grooming. There are also problems of privacy when confidential information is
intercepted or disclosed, lawfully or otherwise. Dr.Debarati Halder and
Dr.K.Jaishankar(2011) further define cybercrime from the perspective of gender
and defined 'cybercrime against women' as "Crimes targeted against women
with a motive to intentionally harm the victim psychologically and physically,
using modern telecommunication networks such as internet and mobile
phones.
An Australian nationwide survey conducted in 2006 found that two in three
convicted cybercriminals were between the ages of 15 and 26.
Internationally, both governmental and non-state actors engage in
cybercrimes, including espionage, financial theft, and other cross-border
crimes. Activity crossing international borders and involving the interests of at
least one nation state is sometimes referred to as cyberwarfare. The
international legal system is attempting to hold actors accountable for their
actions through the International Criminal Court.
A report (sponsored by McAfee) estimates the annual damage to the global
economy at $445 billion; however, a Microsoft report shows that such surveybased estimates are "hopelessly flawed" and exaggerate the true losses by
orders of magnitude.
Computer crime encompasses a broad range of activities.
Fraud and financial crimes
Computer fraud is any dishonest misrepresentation of fact intended to let
another to do or refrain from doing something which causes loss. In this
context, the fraud will result in obtaining a benefit by:
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Altering in an unauthorized way. This requires little technical expertise
and is common form of theft by employees altering the data before entry or
entering false data, or by entering unauthorized instructions or using
unauthorized processes;

Altering, destroying, suppressing, or stealing output, usually to conceal

unauthorized transactions. This is difficult to detect;

Altering or deleting stored data;

Other forms of fraud may be facilitated using computer systems, including

bank fraud, identity theft, extortion, and theft of classified information and A
variety of internet scams, many based on phishing and social engineering,
target consumers and businesses.

BRIEF INTRODUCTION OF DEFAMATION

With the invention of the internet the life of a common has changed a lot. The
internet has provided a medium to interact with the people worldwide. It has
brought the world closer to every man who has access to it. It has proved to be
repository of the enormous information which a common man could not access
easily. It has also given new dimensions to business and trade. Social
networking, entertainment, shopping, job hunt, recruitment, you name
anything and its possible via the medium of internet.

The widespread use of internet has also given a new face to the crime and a
new medium to the bad elements to commit crime.

Cyberspace is a technical term used for the electronic medium of computer

networks, in which online communication takes place. It comes alive only when
two or more computers are networked together. The term has a very wide
meaning and is not only restricted to the internet but also includes computers,
computer networks, the internet, data, software etc. The crimes that are
committed by using the computer as an instrument, or a target or a mean for
perpetuating further crimes falls within the definition of cyber crime. Cyber law
is the law that governs the crimes committed within the cyberspace. Cyber
Defamation is also a cyber crime.
CYBER DEFAMATION
The term defamation is used to define the injury that is caused to the
reputation of a person in the eyes of a third person. The injury can be done by
words oral or written, or by signs or by visible representations. The intention of
the person making the defamatory statement must be to lower the reputation
of the person against whom the statement has been made in the eyes of the
general public. Cyber defamation is a new concept but the traditional definition
of the term defamation is application to the cyber defamation as it involves
defamation of a person through a new and a virtual medium.

Cyber defamation is publishing of defamatory material against another person

with the help of computers or internet. If someone publishes some defamatory
statement about some other person on a website or send emails containing
defamatory material to other persons with the intention to defame the other
person about whom the statement has been made would amount to cyber
defamation. The harm caused to a person by publishing a defamatory
statement about him on a website is widespread and irreparable as the
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information is available to the entire world. Cyber defamation affects the

welfare of the community as a whole and not merely of the individual victim. It
also has its impact on the economy of a country depending upon the
information published and the victim against whom the information has been
published.

The following are mediums by which offense of cyber defamation can be

committed:

World Wide Web

Discussion groups

Intranets

Mailing lists and bulletin boards

E-mail

There are two broad category of case falling under cyber defamation:

The first category involves the cases in which the liability is of the
primary publishers of the defamatory material, e.g. web site content providers,
e-mail authors etc;

The second category involves the cases involving the liability of the
internet service providers or bulletin board operators.

STATUTORY PROVISIONS GOVERNING CYBER DEFAMATION IN INDIA

INDIAN PENAL CODE, 1860
The Indian Penal Code, 1860 contains provisions to deal with the menace of
cyber defamation.

1. Section 499 of IPC:

Section 499 of IPC says that whoever, by words either spoken or

intended to be read, or by signs or by visible representations, makes or
publishes any imputation concerning any person intending to harm, or knowing
or having reason to believe that such imputation will harm, the reputation of
such person, is said, except in the cases hereinafter excepted, to defame that
person.

The offence of defamation is punishable under Section 500 of IPC with a

simple imprisonment up to 2 years or fine or both.
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The law of defamation under Section 499 got extended to "Speech" and
"Documents" in electronic form with the enactment of the Information
Technology Act, 2000.
2. Section 469 of IPC:

Section 469 of IPC says that whoever commits forgery, intending that the
document or electronic record forged shall harm the reputation of any party, or
knowing that it is likely to be used for that purpose shall be punished with
imprisonment of either description for a term which may extend to three years
and shall also be liable to fine.

The phrase intending that the document forged under Section 469 was
replaced by the phrase intending that the document or electronic record
forged vide the Information and Technology Act, 2000.
3. Section 503 of IPC:

Section 503 of IPC defines the offense of criminal intimidation by use of

use of emails and other electronic means of communication for threatening or
intimidating any person or his property or reputation.

Section 503 says that whoever, threatens another with any injury to his
person, reputation or property, or to the person or reputation of any one in
whom that person is interested, with intent to cause alarm to that person, or to
cause that person to do any act which he is not legally bound to do, or to omit
to do any act which that person is legally entitled to do, as the means of
avoiding the execution of such threats, commits criminal intimidation.

INFORMATION TECHNOLOGY ACT, 2000

The Section 66A of the Information Act, 2000 does not specifically deal with the
offence of cyber defamation but it makes punishable the act of sending grossly
offensive material for causing insult, injury or criminal intimidation.
Section 66A of the Information Act, 2000
Section 66A of the IT Act says that any person who sends, by means of a
computer resource or a communication device:

any information that is grossly offensive or has menacing character; or

any content information which he knows to be false, but for the purpose
of causing annoyance, inconvenience, danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred, or ill will, persistently makes by making
use of such computer resource or a communication device,


any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or
recipient about the origin of such messages shall be punishable with
imprisonment for a term which may extend to three years and with fine.

The Information Technology Amendment Act, 2008

The Information Technology Amendment Act, 2008 was passed by the Indian
Parliament on December 22, 2008 and following Presidential assent it has
become a law from February 5, 2009. The amendment bears a certain degree
of similarity to the prevailing law in the United States of America ("USA"). In
USA, intermediaries such as SNWs, internet service providers and other
interactive web service providers are exempted from liability under defamation
if (i) they prove that they have no control over the statement or content and
(ii) they remove such statement or content from their website or network
immediately upon receiving the notice from the plaintiff.
The amended Section 79 of this Amendment Act provides the mechanism
equivalent to the law of USA. Following are the relevant provisions of the
Information Technology Act (after the said amendment comes into force).
"Section 79:
(1) Notwithstanding anything contained in any other law for the time being in
force but subject to the provisions of sub-sections (2) and (3), an intermediary
shall not be liable for any third party information, data, or communication link
made available by him.
(2) The provisions of sub-section (1) shall apply if
(a) the function of the intermediary is limited to providing access to a
communication system over which information made available by third parties
is transmitted or temporarily stored; or
(b) the intermediary does not
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission.
(3) The provisions of sub-section (1) shall not apply if
(a) the intermediary has conspired or abetted in the commission of the
unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate
Government or its agency that any information, data or communication link
residing in or connected to a computer resource controlled by the intermediary
is being used to commit the unlawful act, the intermediary fails to
expeditiously remove or disable access to that material on that resource
without vitiating the evidence in any manner.

(4) Intermediary shall observe such other guidelines as the Central

Government may prescribe in this behalf.
Explanation.For the purpose of this section, the expression "third party
information" means any information dealt with by an intermediary in his
capacity as an intermediary.
Section 2(w)
"intermediary", with respect to any particular electronic records, means any
person who on behalf of another person receives, stores or transmits that
record or provides any service with respect to that record and includes telecom
service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction
sites, online market places and cyber cafes, but does not include body
corporate referred to in section 43A."

WHERE TO LODGE A COMPLAINT

A person aggrieved of the offence of offence of cyber defamation can make a
complaint to the Cyber Crime Investigation Cell. The Cyber Crime Investigation
Cell is a branch of the Criminal Investigation Department (CID). Cyber Crime
Investigation Cells have opened up in many cities like Delhi, Mumbai,
Chandigarh, Hyderabad, Bangalore, Tamil-Nadu, Gurgaon, Pune, MadhyaPradesh, Lucknow, etc. The Cyber Crime investigation Cells deal with offences
related to the computer, computer network, computer resource, computer
systems, computer devices and Internet. It also has power to look into other
high-tech crimes.
The very first case of defamation in India.
In the first case of cyber defamation in India, SMC Pneumatics (India) Pvt. Ltd.
v. Jogesh Kwatra, the reputation of a corporate was being defamed by an
employee of the plaintiff company by sending derogatory, defamatory,
obscene, emails obscene, vulgar, filthy and abusive emails to its employers
and also to different subsidiaries of the said company all over the world with
the aim to defame the company and its Managing Director. The Hon'ble Judge
of the Delhi High Court passed an ex-prate ad interim injunction observing that
a prima facie case had been made out by the plaintiff.

Consequently, the Delhi High Court restrained the defendant from sending
derogatory, defamatory, obscene, vulgar, humiliating and abusive emails
either to the plaintiffs or to its sister subsidiaries all over the world including
their Managing Directors and their Sales and Marketing departments. Further,
Hon'ble Judge also restrained the defendant from publishing, transmitting or
causing to be published any information in the actual world as also in
cyberspace which is derogatory or defamatory or abusive of the plaintiffs.

In another case State of Tamil Nadu v. Suhas Katti related to posting of

obscene, defamatory and annoying message about a divorcee woman in the
yahoo message group. E-Mails were also forwarded to the victim for
information by the accused through a false e-mail account opened by him in
the name of the victim. The posting of the message resulted in annoying
phone calls to the lady in the belief that she was soliciting. Based on a
complaint made by the victim in February 2004, the Police traced the
accused to Mumbai and arrested him within the next few days. Relying on the
expert witnesses and other evidence produced before it, including the
witnesses of the Cyber Cafe owners, the Additional Chief Metropolitan
Magistrate held the accused guilty of offences under section 469, 509 IPC and
67 of IT Act, 2000 and the accused is convicted and is sentenced for the
offence to undergo RI for 2 years under 469 IPC and to pay fine of Rs.500/-and
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for the offence u/s 509 IPC sentenced to undergo 1 year Simple imprisonment
and to pay fine of Rs.500/- and for the offence u/s 67 of IT Act 2000 to undergo
RI for 2 years and to pay fine of Rs.4000/- All sentences to run concurrently.
The conviction of the accused was achieved successfully within a relatively
quick time of 7 months from the filing of the FIR.

In the case of Tata Sons vs. Turtle International, the Delhi High Court has held
that publication is a comprehensive term, embracing all forms and mediums
including the Internet. That an internet publication has wider viewership, or a
degree of permanence, and greater accessibility, than other fixed (as opposed
to intangible) mediums of expression does not alter the essential part, i.e. that
it is a forum or medium. There is much sense to have more defined criteria
taking into account the nature of the internet content. Injunctions on internet
content should not be readily granted (especially ex-parte) since, firstly the
internet is an easy, self publishing platform providing a medium of expression
for marginal individuals not having corporatist outlets. Secondly, the internet
facilitates the distribution of content for a minor cost to a vast audience. Both
the alleged injury and the free speech concern are greater due to the wider
dissemination of the content. These are only some of the concerns which set
the internet apart and it is desirable to have a nuanced appreciation.
Addresses of Cyber Crime Investigation Cells in India
Nagpur
Cyber Crime Investigation Cell,
Crime Branch, 4th Floor,
Administrative Building No. 1,
Near Udyog Bhavan,
Civil Lines, Nagpur-01.
Email:cybercell@nagpurpolice.nic.in
Tel: +91 - 712 2566766
Website: http://www.nagpurpolice.info/manage_pages?id=29
Pune
Office of Commissioner of Police
2, Sadhu Vaswani Road,
Camp, Pune - 411001
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Phone: +91-20-020-26126296, 26122880, 26208250

Fax: 020 26128105.
Website: www.punepolice.gov.in
E-Mail: crimecomp.pune@nic.in / punepolice@vsnl.com
Mumbai
Cyber Crime Investigation cell,
Annex III, 1st floor, Office of the Commissioner of Police,
D.N.Road, Mumbai - 400001
Ph: +91-22- 24691233
Web site: http://www.cybercellmumbai.gov.in
E-mail id: cybercell.mumbai@mahapolice.gov.in

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Conclusion
After the Information Technology Amendment Act 2008 become effective from
October 27, 2009, intermediaries such as SNWs are immune from any
defamation liability provided such intermediaries have acted bonafide or come
within the purview of the exemptions envisaged under the amendment. The
initial presumption is that intermediaries are not liable provided they satisfy
the conditions of sub-clause (2) of Section 79. Though the new law does not
shift the burden of proof from defendant (to prove that the statement is true)
to plaintiff (to prove that the statement is false and intermediary had
knowledge and control over the content), but the new law definitely makes it
easier for the defendants to prove their innocence in the event they have
acted bonafide.
One of the major loopholes was that other users of the SNWs could be made
defending parties to the defamation suit, whether or not they were aware of
such defamatory statements. However, the new law provides a certain line of
defence to them provided they satisfy the abovementioned conditions under
the new Section 79. Now that the Information Technology Amendment Act,
2008 is enforced, intermediaries such as SNW are somewhat immure from the
risk of being sued as well as having judgments passed in India against them to
pay damages to the plaintiff for defamatory statements of others.

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Reference and Bibliography

1. www.google.com
2. www.cybercrime.com
3. www.crime branch oh india.com

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Articles and news cuttings

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