Comparative analysis of the provisions of the Information Technolgy Act

• The IT (Amendment) Act 2008 came into force on 27^th October 2009.

v  DIGITAL SIGNATURE

• With the passage of the Information Technology (Amendment) Act 2008 (The Act), India has adopted electronic signatures as a legally valid mode of executing signatures. This includes digital signatures as one of the modes of signatures and is far broader in ambit covering biometrics and other new forms of creating electronic signatures.

v  Unauthorised Access

• The Corporate responsibility for Data protection is greatly emphasized by inserting Section 43A in the IT Amendment Act 2008 whereby corporate bodies handling sensitive personal information in a computer resource are under an obligation to ensure adoption of reasonable security practices to maintain its secrecy. Failing which they may be liable to pay damages.

Also, there is no limit to the amount of compensation that may be awarded by virtue of this provision.

No ceiling limit for compensation is prescribed under Section 43 of the Act 2008 which was One crore in the IT Act 2000.

v  Hacking

Many cybercrimes on which there were no express provisions in the IT Act 2000 are now included by the IT Amendment Act 2008.

       Like,

o   Sending of offensive or false messages (Section 66 A), 

o   Punishment for dishonestly receiving stolen computer resource or communication device” also covers stealing or use of stolen Cell (Mobile) Phones. (Section 66 B)

o   Identity theft (Section 66 C),

o   Cheating by personation (Section 66 D),

o   Violation of privacy (Section 66 E).

o   Barring the offence of Cyber terrorism (Section 66 F)

Punishment prescribed is generally upto three years and fine of one/two lakh has been prescribed and these offences are cognizable and bailable.

Fine for the offence is increased from 2 lakh to 5 lakh.

v  Cyber Pornography

• In Section 67, for publishing or transmitting obscene information, imprisonment term has been reduced from five years to three years (and five years for subsequent offence instead of earlier ten years) and fine has been increased from one lakh to five lakh (Rupees ten lakh on subsequent conviction)
• Section 67(A) adds an offence of publishing material containing sexually explicit conduct punishable with imprisonment for a term that may extend to 5 years with fine upto ten lakh.
• Section 67(B), punishes offence of child pornography, child‘s sexually explicit act or conduct with imprisonment on first conviction for a term upto 5 years and fine upto 10 lakh.

v  Internet censorship

·         Sec. 69, This Section empowers the Central Government/State Government/ its authorized agency  to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource if it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence or for investigation of any offence . Section 69A also allows blocking of certain websites if its content is of such nature as described in Section 69.This provision is in conformance with the reasonable restrictions that are envisaged to be imposed on fundamental rights guaranteed under the Constitution of India in case the same is found necessary to maintain public order, national integrity, sovereignty and allied interests.

v  Liability of Intermediary not to disclose any personal information

• As per Section 72(A) of the amendment Act, an intermediary is required to act as per the terms of its lawful contract and not to disclose any personal information to cause wrongful loss or wrongful gain to any other person. It is important to clarify here that this intermediary is also under obligation not to “USE” the personal information gained for purpose other than specifically authorized under terms of its lawful contract.

v  Liability of Intermediary

·         Section 79

An intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him if 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 hosted or;

The intermediary does not:-

o   Initiate the transmission,

o   Select the receiver of the transmission, and

o   Select or modify the information contained in the transmission and

o   The intermediary observes due diligence while discharging his duties under the Act.

However, intermediaries will be held liable if -

o   The intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; or

o   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.

v  Attempt and Abetment

·      As per new Section 84 B, abetment to commit an offence is made punishable with the punishment provided for the offence under the Act.

• Section 84 C makes attempt to commit an offence also a punishable offence with imprisonment for a term which may extend to one-half of the longest term of imprisonment provided for that offence.

v  Investigation Powers

• Cyber crime cases can now be investigated by “Inspector” rank police officers. Earlier an officer below the rank of a “deputy superintendent” of police couldn’t investigate such cases.

v  Jurisdiction

• Jurisdiction of Adjudicating Officers has been increased. Now they can adjudicate matters in which the claim for injury or damage does not exceed rupees five crore.

Jurisdiction in respect of claim for injury or damage exceeding rupees five crore shall vest with the Civil court. 

v  Compounding of Offences

Section (77A):- Offences except for which imprisonment for life or imprisonment for a term exceeding three years has been provided can be compounded.

For easy reference, a brief overview of the significant changes brought out by the IT (amendment Act), 2008 is as given below:-