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CYBER LAWS
SEM : VI
SEM VI : UNIT 1- 5

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TRAINING -> CERTIFICATION -> PLACEMENT BSC IT : SEM - VI : CYBER LAW U1 - U5

UNIT – 1

Power of Arrest Without Warrant Under the IT Act, 2000:

A Critique, Crimes of this Millennium, Section 80 of the IT Act, 2000 A
Weapon or a Farce? Forgetting the Line Between Cognizable and
Non-Cognizable Offences, Necessity of Arrest without Warrant from
Any Place, Public or Otherwise, Check and Balances Against Arbitrary
Arrests, Arrest for “about to commit “ an offence under the IT Act : a
Tribute to Draco, Arrest, But NO Punishment!

Cyber Crime and Criminal Justice: Penalties, Adjudication

and Appeals Under the IT Act, 2000:
Concept “Cyber Crime” and the IT Act , 2000, Hacking, Teenage Web
Vandals, Cyber Fraud and Cyber Cheating, Virus on the Internet,
Defamation, Harassment and Email Abuse, Cyber Pornography,
Other IT Act Offences, Monetary Penalties, Adjudication and Appeals
Under IT Act , 2000, Network Service Providers, Jurisdiction and
Cyber Crime, Nature of Cyber Criminality, Strategies to Tackle Cyber
Crime and Trends, Criminal Justice in India and Implications on
Cyber Crime.

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Chapter 1
Power of Arrest Without Warrant Under the IT Act, 2000

Warrant: A document issued by a legal or government official authorizing the

police or another body to make an arrest, search premises, or carry out some
other action relating to the administration of justice.
Section: A distinct portion or provision of a legal code or set of laws, often
establishing a particular legal requirement.
Magistrate: A civil officer who administers the law, especially one who conducts
a court that deals with minor offences and holds preliminary hearings for more
serious ones.

Power of Arrest Without Warrant Under IT Act, 2000

A Critique: Power of Arrest Without Warrant from a public place Under Section
80 IT (Information Technology) Act, 2000 is a tragedy and a comedy.
Our law makers need to go back to the basics of criminal laws.

Crimes of the millennium:

 Cyber Crime is the most deadliest crime harassing the planet in this
millennium.
 A cyber-criminal can destroy:
o Websites & Portals by hacking and planting viruses
o Carrying out online frauds by transferring funds from one account to
another
o Gain access to highly confidential and sensitive information
o Cause harassment through email threats or obscene materials.
o Play tax frauds
o Indulge in cyber pornography involving children
o Commit innumerable other crimes on the internet.
o Cybercrimes such as hacking, planting viruses can and online
financial frauds can shake economies.
o February 6th, 7th and 8th 2000 were the darkest night of the
internet and e- commerce.
o Big websites like Yahoo, Buy.com, eBay, amazon.com and E-trade
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were choked and shut for hours.

o Cyber criminals celebrated the welcome the year 2000 late due to
some problems in their setups.
o Again in May there was another attack which crippled millions of
computers thereby causing an estimated loss of US 10$ million.
o The virus spread in the entire world within 2 hours.
o Cyber crimes is presently estimated to be growing at the rate of
4.1% per week.
o From 640 criminal complaints i.e. 1.73 per day in 1993 to
2,82,000(773) per day in 2000 it was not a slow journey.
o This figure is received as only 10% crimes are reported.
 In spite the measures taken the cyber crime is growing at the rate of 4.1% per
week.
 E-commerce are growing at a phenomenal pace and the expected business
through it is US$450 billion this year and can shrink too

Section 80 of the IT Act, 2000- An Act or a farce?

 With the threat of increasing cyber criminality our legislature has inserted
Section 80 in the IT Act, 2000
 Section 80 of IT Act is in the following terms :
“Power of police and other officers to enter search, etc.”
1. Notwithstanding anything contained in the Code of Criminal
Procedure, 1973(2 of 1974), any police offer, not below the rank of Deputy
Superintendent of Police or any other officer of the State Government or State
Government authorized by the central government in this behalf may enter any
public place and search and arrest without warrant in any person found therein
who is reasonably suspected of having committed or of committing or of bring
about to commit any offence under this act.
Explanation:
 This section can be exercised only in Public place may refer to hotels, cyber
cafes, workspaces, shop or any place used by the public etc.
 The person arrested by the officer without any unnecessary delay should take
or send the person arrested before the magistrate.
 Also the power to enter and search and arrest without a warrant can be
exercised only on the grounds that the person is suspected to have
committed, or is committing about to committed the offense.

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Considering the above points, the suspected person can be

arrested only when:
• If the offense is committed in the public place and the person is found at that
place.
• If the offense is committed at some public place and the person is found in
some other public place.
• If the suspected person has committed crime in some other place and is found
in some public place.
• By restricting the power of arrest at a public place the Section 80 becomes
vulnerable for defeat.
• Example 1: If person A commits a offense at home and then goes to a hotel
then he can be arrested at hotel without warrant whereas if the same person
stays in his house after committing offence; he cannot be arrested without
warrant.
• Example 2: If a person A commits an offense at a cyber café and then goes to
his home then he cannot be arrested without a warrant; whereas if the person
is found in the cyber café than he can be arrested without a warrant.
• For example, if a person in Mumbai hacks the defense ministry departments
site at Delhi from a cybercafé will the person wait in the cybercafé till the
officials come from Delhi.
• In Section 80, no consideration has been given to the nature of internet which
is the base of committing cyber-crimes. Some of these are:
1. Geography: Bank Frauds. In bank frauds, money is deducted from
one location to another.
2. Cyber Space: Most of the time these offenses are committed in
cyber space.
3. Due to this it is extremely difficult to collect evidence and investigation
is a time- consuming process whereas the offense can be committed
within no time.

Forgetting the line between Cognizable and Non-Cognizable

Offences
• Offences in which arrested without warrant is done is called Cognizable
offence and the other is vice-versa.
• Cognizable case or cognizable offense means a case where the police offer
has the power to arrest without a warrant.
• Non-Cognizable case or non-cognizable offense means a case where no
police offer has the power to arrest without a warrant.
• The process of investigation to trial is different in both the cases.

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• In cognizable case, the FIR (First Information Report) has to be registered.

• A FIR case is a case wherein the state acts as the prosecutor and the
victim/informant is only a witness.
• In cognizable offence the informant first reports to the concerned Police station
within whose jurisdiction the offense has taken place.

Process of registering an FIR

• 1. Every information related to cognizable offense is given to the officer-in
charge orally. It shall be reduced to writing by him or under his direction and be
read over by the informant.
• This information in written format should be signed by the informant and shall
be entered in a book to be kept by such officer
• A copy of this information should be given to the informant free of cost.
• If the officer-in-charge refuses to record the information than the informant may
the send it in writing or by post to the superintendent of police who in turn
would either investigate or handover the investigation to his/her subordinate.

Process of Investigation

• Officer in charge of a police station may investigate the offence without the
concern of a magistrate falling under his jurisdiction.
• The officer-in-charge can proceed to the place of offense if he find any reason
to do so. Also he can send any subordinate of his for the same provided that :
• If the need is of serious nature
• If the officer-in charge feels that there is no sufficient grounds for investigating
the case he should not be sent.
• The investigating officer has to power to investigate attendance of persons
who appear to be involved.
• After completing the investigation, the police fires a challah/Charge sheet/
Police Report against the accused followed by prosecution evidence, defense
evidence, final arguments and judgments.
• In non-cognizable case, the complaint is filed in the court of Magistrate.
• On filing of the complaint, the magistrate uses his judicial mind for examining
the witnesses and is reduced to writing.
• This is known as preliminary evidence.

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Necessity of Arrest Without Warrant from any place, public or

otherwise
• The power of arrest without warrant is draconian in nature. As per general
view, the it is good since it is good since it confers the power to act immediately
but only the public place arrest without warrant can be a concern.
• The changes that should be included herein are:
o The word public should be deleted
o The explanation should be removed.
o “any offense under this act” should be substituted with any cognizable
offense under this act
Check and Balances Against arbitrary Arrests

• Any officer other DSP or lower ranking than the DSP should be able to arrest
the accused with the help of some technical expert from the field.
• Some of the crimes are not included in the IT Act 2000, has to be included
along with the help of some technical professionals and necessary amendment
should be made.

Arrest for “About to Commit” an offence Under the IT Act: A

tribute to Draco

• Section 80 of IT Act, 2000 is also a replica of the colonial attitude of the State
towards the citizens of our country.
• Seeks to penalize citizens on any “about to commit” any offence under this act.
• Lawmakers might have borrowed this words from provisions such as section
216A inserted in the year 1984 into the Indian Penal code, 1860.
• Section 216A penalizes any citizen for about to commit crimes along with
seven years imprisonment.
• The word about in Black dictionary means:

o Near in time, quantity, quality, number or degree

o Substantially, approximately.

• Examples: Suppose a person wishes to collect some information regarding

hacking. He searches the same on the internet. As per the law he can be
arrested on the suspicion of “about to commit”.

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Arrest, But No Punishment

• When “Reasonably suspected of having committed or of committing or being

about to commit any offense under this act” is said it covers three grounds of
arrest :
o Of having committed
o Of committing
o Of being about to commit

• The words “having committed” refers to the act that the offence has been
committed
• The words “of committing” refers to the fact that the person is actually in the
act of committing the offence.
• The words “about to commit” refers to the fact that the offence had not yet
happened but is about to happen.
• So instead of making these three categories we can replace the section 80 as
“reasonably suspected of being concern

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Chapter 2
Cyber Crimes and Criminal Justice: Penalties,
Adjunctions and Appeals Under the IT Act, 2000

Concept of Cyber Crime and IT Act, 2000

• IT Act 2000 neither defines “Cyber Crimes” nor uses this expression
anywhere.
• It only provides the definition of, punishments for certain offences.
• In general there are two definitions of the word “cybercrime”.
• As per the offences covered in the IT ACT, 2000 the definition of cybercrimes
would be restricted to anything tampering with source code, hacking and cyber
pornography.
• Cyber fraud, defamation, harassment, email abuse and IPR theft, etc. would
not be included.
• So, cybercrime can be defined as an act of commission or omission,
committed on or through or with the help of or connected with, the internet,
directly or indirectly, which is prohibited by any law and for which punishment,
monetary and/or corporal is provided.
• Cybercrimes can be classified as:
o Old Crimes, committed on or through new medium of the internet.
For example : cheating, fraud, misappropriation, defamation,
pornography, threats etc. committed on the internet would fall under
this category. These crimes are old but their place of committing is
new and that is internet and hence these are called the crimes “on”
the internet.
o New Crimes with the internet itself, such as hacking, planting viruses
and IPR thefts.
These can be called as crimes “of” the internet.
o New crimes are used for the commission of old crimes. For
example, when hacking is committed to carry out cyber frauds.
• Computer Crimes are also classified on the basis of usage of
computers :
o Computer crimes proper, such as hacking where a computer and a
network are require.
o Computer assisted crimes such as pornography where the medium of
internet is used.

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o Computer crimes where the use of computer is just incidental, cyber

frauds.
o Though only a few offences are included in this act, it also knows that
other such offences are included in the IPC(Indian Penal Code).
o Also the IPC does not include the definition of “electronic records”
and so there are restrictions.
o And so we have some amendments made in the IT Act, 2000 Section
91 which includes some of the provisions of Indian Penal Code, 1860
which are specified in the Act.
o The definition of documents was wide enough to cover the aspect of
electronic records.
o As per the definitions included in law the term documents refer to any
matter expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those means
intended to be used or used as evidence in that matter.
o Electronic record means data, record or data generated, image or
sound stored, received or sent in an electronic form or micro film or
computer-generated micro fiche.

Hacking
• There are many definitions of hacking but only two definitions are used widely.
• The first definition refers to the hobby/profession of working with computers.
• This old definition is still used by computer enthusiasts who called cyber
criminals as crackers.
• Second and more commonly used definition of hacking refers to the breaking
into computer systems.
• Hackers have also classified as Code Hackers, Phreakers, Cyber-punks and
crackers.
• Code Hackers are those who have knowledge and intricacies of computer
systems and their operations.
• Phreakers have deep knowledge of the internet and telecommunication
systems.
• Cyber-punks specialized in cryptography
• Crackers are breakers into computer security systems.
Out of all cybercrimes, criminal hacking is the biggest threat to the Internet and
e- commerce.

• Cyber break-ins caused losses of US $42 million in 1999.

• Hacking as a cybercrime is most dangerous to the internet and ecommerce as
it causes the people who use the internet think that internet is vulnerable and
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weak.
• Ramphant hacking question technology and it needs to be checked every now
and then.
• Also in order to prevent a website form hacking is a costlier affair.
• Also the constant hacking can prevent people from entering into IT industry and
e- commerce industry.
• India has also become vulnerable to various hacking instances.
• Hacking is also used as weapons of protesting against governments
• Four types of hacking which are famous today :
o Hacking for fun as a hobby.
o To damage the business of computers
o With the intention of committing a further offence such as a fraud and
misappropriation
o By internet security companies to test their clients systems and win
confidence.

The IT Act, 2000 defines and punishes hacking as

follows: 66 Hacking With Computer System:

• Whoever with the intent to cause or knowing that he or she is likely to cause
wrongful loss or damage to the public or any person destroys or deletes or
alters any information residing in a computer resource or diminishes its value
or utility or affects it injuriously by any means, commits hacking.
• Whoever commits hacking shall be punished with imprisonment up to 3 years
or with fine up to 2 lakh rupees or even both.
Teenage Web Vandals: The motivating factors and causes of teenage cyber
criminality which are different from other teenage crimes such as drug abuse and
violence are:

• Fame and publicity here is global due to world wide access to the internet.
• Excitement of making a difference in to the world, i.e. a sense of achievement
and greatness.
• Use of knowledge of the internet and programming.
• Lack of sensitivity to the adverse consequences of the act of defacing or
hacking.
• An obsession with the internet and computer programming which is not
channelized properly.
• Lack of fear of the law and its reinforcement. It is considered as risk-free
adventure.

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• Cheap and easy availability of the weapons for committing hacking and
defacing websites

Cyber Fraud and Cyber Cheating

• Internet Fraud includes one third of the total cyber crimes.

• There has been nearly 29% increase in the cyber crime rate in the past year.
• “Fraud” has not been defined in the IT Act, 2000.
• As per IPC, 1860 a person is said to be doing things fraduently if he wishes to
defraud or otherwise.
• The word defraud constitutes two elements : deceit and injury to the person
deceived.
• As per Section 17 of Indian Contract Act, 1872 : Fraud means and includes
any of the following acts committed by a party to a contract, or with his
connivance, or by his agent with intent to deceive another party thereto or his
agent, or to induce him to enter into contract :
o The suggestion, as a fact, of that which is not true, by one who does
not believe it to be true.
o The active concealment of a fact by one having knowledge or belief of
the fact
o A promise made without any intention of performing it.
o 4. Any other act fitted to deceive.
o 5. Any such act of omission as the law specially declares to be
fraudulent.

Cheating:

• All acts which amount to cheating would be fraud but the vice-versa may not be
true.
• Cheating has been defined in IPC section 415 as follows:
• “Whoever by deceiving any person, fraudulently or dishonestly
induces the person so declared to deliver any property to any
person, or to consent that any person shall retain any property or
intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not deceived,
and which act or omission causes or is likely to cause damage
or harm to that person in body, mind, reputation or property, is
said to cheat.”
• A representation is made by a person which is false and which he knows is
false at the time of making the representation.
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• The false representation is made with the dishonest intention of deceiving the
person to whom it is made.
• The person deceived is induced to deliver any property or to do or omit to do
something which he would otherwise have not done or omitted.

Some real-life examples of cheating:

• A show the sample of an article to Z and sells some other article convincing Z
that the article is the same, A cheats.
• A want to buy some article; but he gives a cheque to Z of a bank in which he
keeps no money and thereby dishonoring the cheques and asking for delivery
of the Cheque from Z A cheats.
• A borrows some money from Z saying that he would pay back the money but
has no intention to do so. A cheat.
• A tells Z that he wants to deliver indigo plant but has no intention to do so. A
takes money from Z and does not deliver the article; A cheats. Also if A has
the intention to deliver the article but due to some issue and this creates
breach in contract he couldn’t that that is not cheating but is punishable.
• A intentionally deceives Z into a belief that he has performed his part of the
work as per contract and has not done so and even though demands for
money. A cheat.
• The punishment for cheating is imprisonment of any year or fine or both.

Personation:
• When a person cheats a person by pretending him to be some other person
than he or she really is or knowingly substitutes one person to another, amount
to a cheating known as Personation.
• Punishment for Personation intends to imprisonment with three years term or
with fine or both.
• National Aeronautics and Space Administration
• Whosoever introduces or causes to be introduced any computer
contaminant or computer virus into any computer system or
computer network or computer is liable to pay damages by way
of compensation not exceeding rupees one crore to the person
affected.
• The factors for determining the compensation are: The amount of gain or
unfair advantage, the amount of loss to the victim and the repetitive nature of
the default.
• Computer virus has been defined as any computer instruction, information,
data or program that destroys, damages, degrades or adversely affects the
performance of a computer resource or attaches itself to another computer
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resource and operates when a program, data or instruction is executed or

some other event takes place in that computer.
• Damage means to destroy, alter, delete, modify, rearrange, add any computer
resource by any means.
• “Computer Contaminant” is defines as any set of computer instruction that
are designed –to modify, destroy, record, transmit data or program residing
within a computer, computer system or computer network.
• The act of planting a virus or any computer contaminant would also amount to
the criminal offence “mischief.”
• Mischief –
o Whosoever with intent to cause, or knowing that he is
likely to cause, wrongful or damage to the public or to
any person, causes the destruction of any property or in
the situation thereof as destroys or diminishes its value or
utility, or affects it injuriously, commits “mischief.”

Defamation, Harassment and Email Abuse

• The common meaning of defamation is injury done to the reputation of

somebody.
• Defamation is a criminal offence under the IPC on the following
grounds:
o Making or publishing an imputation concerning any person
o The imputation is made with the intention of causing harm to, or
knowing or having reason to believe that such imputation will harm the
reputation of such person.
o The imputation is made by words which are either spoken or intended
to be read or by signs or by visible representations.
• However imputations falling under these 10 categories are not
included in the offence of defamation :
• Imputation which is true concerning any person, if it is for the public good
o Therefore, even if an imputation is true about a person but harms his
reputation it would be defamatory unless the imputation is for the good
of the public.
• An opinion in good faith regarding the conduct of any person touching any
public question, and regarding his character, only so far as his character
appears in that conduct.
• An opinion in good faith regarding the conduct of a public servant in the
discharge of his public functions, or regarding his character, only so far as his
character appears in that conduct.
• Publishing substantially a true report of the proceedings of a Court of Justice
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or of the result of any such proceedings.

• An opinion in good faith regarding the merits of any case, civil or criminal,
which has been decided by a Court of Justice, or regarding the conduct of
any person as a party, witness or agent, in any such case or regarding the
character of such person only so far as his character appears in that conduct.
• For example, A says—"I think Z's evidence on that trial, is so contradictory
that he must be stupid or dishonest". A is within this exception if he says this in
good faith, inasmuch as the opinion which he expresses respects Z's
character as it appears in Z's conduct as a witness, and no further.
• But if A says—"I do not believe what Z asserted at that trial because I know
him to be a man without veracity"; A is not within this exception, in as much as
the opinion which he expresses of Z's character, is an opinion not founded on Z's
conduct as a witness.

An opinion in good faith regarding the merits of any performance which

its author has submitted to the judgment of the public, or regarding the
character of the author so far as his character appears in such
performance.

• A person who publishes a book, submits that book to the judgment of the
public.
• A person who makes a speech in public, submits that speech to the judgment
of the public.
• An actor or singer who appears on a public stage, submits his acting or singing
to the judgment of the public.
• A says of a book published by Z—"Z's book is foolish; Z must be a weak man,
Z's book is indecent; Z must be a man of impure mind". A is within the
exception, if he says this in good faith, in as much as the opinion which he
expresses of Z is regarding Z's character only so far as it appears in Z's book,
and no further.
• But if A says—"I am not surprised that Z's book is foolish and indecent, for he is
a weak man", A is not within this exception, in as much as the opinion which he
expresses of Z's character is an opinion not founded on Z's book.
• Passing in good faith by a person having authority over another, any censure
on the conduct of that other in matters to which such lawful authority relates.
For example, a judge censuring in good faith the conduct of a witness, would
fall under this exception.
• Accusations made in good faith against any person to any of those who have
lawful authority over that person with respect to the subject matter of the
accusation.

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• For example, if A in good faith accuses Z before a Magistrate; or if A in good

faith complains of the conduct of Z, a servant, to Z's master; or if A in good
faith complains of the conduct of Z a child, to Z's father—A falls within this
exception.
• Imputation on the character of another, made in good faith for the protection of
the interest of the person making it, or any other person, or for the public good.
• Where A, a shopkeeper, says to B, who manages his business—"Sell nothing
to Z unless he pays you ready money, for I have no opinion of his honesty A is
within the exception, if he has made this imputation on Z in good faith for the
protection of his own interests.
• Conveying a caution in good faith to a person against another which is intended
for the good of the person to whom it is conveyed, or of some person in whom
that person is interested, or for the public good.
Cyber Pornography: The reasons why cyber pornography has become
so big an industry are:

• The easy, free, efficient, convenient and anonymous, accessibility to

pornographic material through the Internet.
• The anonymity of the cyber pornography industry, global accessibility,
problems of jurisdiction, different laws and standards of morality in different
countries, which have made a mockery of the laws and their enforcement.
• The IT Act does not depart from the definition of "obscenity" in the Indian Penal
Code, 1860. Section 292 of the Indian Penal Code says as follows:
• "Sale, etc. of obscene books, etc.— (1) For the purposes of sub-section (2)
book, pamphlet, paper, writing, drawing, painting, representation, figure or any
other object, shall be deemed
o to be obscene, if it is lascivious or appeals to the prurient interest or if
its effect, or (where it comprises two or more distinct items the effect
of any one of its items) is, if taken as a whole, such as to tend to
deprave and corrupt persons who are likely, having regard to all
relevant circumstances, to read, see or hear the matter contained or
embodied in it.
• Whoever— sells, lets to hire, distributes, publicly exhibits or in
any manner puts into circulation or for purposes of sale, hire,
distribution, public exhibition or circulation, makes, produces or
has in possession any obscene book, pamphlet, paper, drawing,
painting, representation or figure or any other obscene object
whatsoever, or
a. imports, exports or conveys any obscene object for any of the purposes,
aforesaid, or knowing or having reason to believe that such object will be
sold, let to hire, distributed or publicly exhibited or in any manner put into

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circulation, or
b. takes part in or receives profits from any business in the course of which
he knows or has reason to believe
c. that any such obscene objects are, for any of the purposes aforesaid,
made, produced, purchased, kept, imported, exported, conveyed, publicly
exhibited or in any manner put into circulation, or
d. advertises or makes known by any means whatsoever that any person is
engaged or is ready to engage in any act which is an offence under this
section, or that any such obscene object can be procured from or
through any person, or
• offers or attempts to do any act which is an offence under this section, shall
be punished on first conviction with imprisonment of either description for a
term which may extend to two years, and with fine which may extend to two
thousand rupees, and, in the event of a second or subsequent conviction, with
imprisonment of either description for a term which may extend to five years,
and also with fine which may extend to five thousand rupees.
• Exception—This section does not extend to—
• any book, pamphlet, paper, writing, drawing, repre- sentation or figure— the
publication of which is proved to be justified as being for the public good on the
ground that such book, pamphlet, paper, writing, drawing, painting,
representation or figure is in the interest of science, literature, art or learning or
other objects of general concern, or
• which is kept or used bona fide for religious purposes;

• any representation sculptured, engraved, painted or otherwise represented on

or in-any ancient monument within the meaning of the Ancient Monuments
and Archaeological Sites and Remains Act, 1958 (24 of 1958), or

Section 67 of the IT Act similarly defines "obscenity":

"67. Publishing of information which is obscene in electronic form. —
Whoever publishes or transmits or causes to be published in the
electronic form, any material which is lascivious or appeals to the prurient
interest or if its effect is such as to tend to deprave and corrupt persons
who are likely, having regard to all relevant circumstances, to read, see or
hear the matter contained or embodied in it, shall be punished on first
conviction with imprisonment of either description for a term which may
extend to five years and with fine which may extend to one lac rupees and
in the event of a second or subsequent conviction with imprisonment of

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either description for a term which may extend to ten years and also with
fine which may extend to two lakh rupees."

Other IT Act Offences:

• Any person who knowingly or intentionally destroys or alters any computer

source code used for a computer, computer programme, computer system or
computer network, when the computer source code is required to be kept or
maintained by law for the time being in force, is an offence committed of
tampering with computer source documents.
• This is punishable with imprisonment up to 3 years, or with fine which may
extend to Rs 2 lakh, or with both.
• “ Failure to comply with the order of the Controller of Certifying Authorities, is
punishable with imprisonment for a term not exceeding three years, or with a
fine not exceeding Rs 2 lakh, or with both.
• A person who unauthorizedly secures access or attempts to secure access to
a protected system declared by the appropriate Government, is liable for
punishment with imprisonment up to 10 years and shall also be liable to fine.
• This offence has been legislated so as to provide deterrence against access to
protected computer systems, for instance, defense systems of the country.
• A person who makes any misrepresentation or suppresses any material fact
from the Controller of Certifying Authorities or the Certifying Authority, for
obtaining any license or Digital Signature Certificate, shall be liable for
imprisonment which may extends to 2 years, or with fine which may extend to
Rs 1 lakh, or with both.’
The Information Technology law also punishes a person for breach of
confidentiality and privacy, with imprisonment for a term which may extend to
two years, or with fine which may extend to Rs 1 lakh, or with both.

• If any person having any of the powers conferred under the IT law, secures
access to any electronic record, book, register, correspondence, information,
document or other material, without the consent of the person concerned and
discloses the same to any other person, he shall be liable for the offence of
breach of confidentiality and privacy.
• However, where any law permits the aforesaid acts, it shall not amount to the
said offence of breach of confidentiality.
• A person who publishes a Digital Signature Certificate with the knowledge
that the Certifying Authority listed in the certificate has not issued it or the
subscriber listed in the certificate has not accepted it or the certificate has
been revoked or suspended, shall be liable with imprisonment for a term
which may extend to 2 years, or with fine up to Rs 1lakh, or with both.
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• However, where such publication is for the purpose of verifying the digital
signature created prior to suspension or revocation, the aforesaid acts would
not amount to a punishable offence.
• Any person who knowingly creates, publishes or otherwise makes available a
Digital Signature Certificate for any fraudulent or unlawful purpose, is liable to
be punished with imprisonment extending up to 2 years, or with fine extending
up to Rs 2 lakhs, or with both.
• The law also provides for confiscation of any computer, computer system,
floppies, compact disks, tape drives or other accessories connected with any
contravention of the IT law.
• In cases where the person from whose possession, power and control
any such computer, computer system, floppies, compact
o disks, tape drives or any other accessories are found, is not
responsible for the contravention of the law, then instead of
confiscation, the court has the power to pass such order as it may
think fit against the offender.
• The Information Technology Act, like many other laws, also provides that
where the person committing a contravention of the IT law is a company, then
every person who at the time of the contravention was in charge of, and was
responsible to, the company for the conduct of the business of the company
as well as the company, shall be guilty of the contravention and shall be liable
to be proceeded against and punished accordingly.
• However, if any officer of the company, proves that the contravention took
place without his knowledge or that he exercised all due diligence to prevent
the same, he shall not be liable.
• But where it is proved that the contravention has taken place with the consent
or connivance of, or is attributable to any neglect on the part of, any Director,
Manager, Secretary, or other officer of the company, such Director, Manager,
Secretary or other officer shall be deemed to be guilty and shall be liable to be
proceeded against and punished accordingly.
• "Company" has been defined to mean any corporate entity/body and also
includes a firm or other association of individuals.
• Accordingly, a Director in relation to a firm means a partner.
• It has been specifically provided in the IT law that penalties or confiscation
under the same, shall not prevent the imposition of any other punishment to
which the person accused is liable under any other law for the time being in
force.
• For example, the act of planting a computer virus besides being a
contravention of section 43 (c) of the IT Act, would also amount to the
commission of the offence of mischief under section 425 of the Indian Penal
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Code, which is punishable with imprisonment for a term which may extend to
two years, or with fine, or with both.
• Monetary Penalties, Adjudication and Appeals under IT Act,2000
• Any person in charge of a computer, computer system or computer network
does any or of the following acts, he/she has to pay damages by the way of
compensation not exceeding Rs. 1 crore to the victim :
• (a)accesses or secures access to such computer, computer system or
computer network;
o downloads, copies or extracts any data, computer data, base or
information from such computer, computer system or computer
network including information or data held or stored in any removable
storage medium;
o introduces or causes to be introduced any computer contaminant or
computer virus into any computer, computer system or computer
network;
• (d)damages or causes to be damaged any computer, computer system or
computer network, data, computer database or any other program residing in
such computer, computer system or computer network;
o disrupts or causes disruption of any computer, computer system or
computer network;
o denies or causes the denial of access to any person authorized to
access any computer, computer system or computer network by any
means;
• (g)provides any assistance to any person to facilitate access to a computer,
computer system or computer network in contravention of the provisions of this
Act, rules or regulations made thereunder.
• (h)charges the services availed of by a person to the account of another
person by tampering with or manipulating any computer, computer system, or
computer network."

The following monetary penalties have been provided in the IT law for
non-compliance of certain requirements:
• Not exceeding Rs 1.50 lakh for every failure to furnish any document, return or
report to the Controller or Certifying Authority which is required to be furnished
under the IT law.
• Not exceeding Rs 5,000 for every day during which the failure to file any return
or furnish any information, books or other documents within a stipulated time
frame, continues.
• Not exceeding Rs 10,000 per day during which the failure to maintain books of
accounts or records as required continues.
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• As per section 45 of the IT Act, whoever contravenes any rules or regulations

made under the Act, for the contravention of which no penalty has been
separately provided, shall be liable to pay a compensation not exceeding Rs
25,000/- to the person affected by such contravention or a penalty not
exceeding the same amount.

Network Service Providers

• Network service providers are intermediaries who provide network technology

services to users of the Internet.
• Section 79 says that no person providing any service as network service
provider would be liable under the IT Act, rules or regulations made there
under, for any third party information or data made available by him if he
proves that the offence or contravention was
o committed without his knowledge of that he had exercised all due
diligence to prevent the commission of such offence or contravention.
• Network service providers have been given the roles of censor board and
police by the law.
• Section 79 implies that in case network service providers do not exercise due
diligence to prevent the commission of an offence or contravention for any
third party information or data made available by them, they shall be liable for
such an offence or contravention.
• Section 79 makes no distinction between the various kinds of ISPs.
• Section 79 does not apply to offences, violations and contraventions under
laws other than the IT Act, 2000.In such offences, violations and
contraventions, the respective laws would apply independently of section 79
of the IT Act, 2000.
• Internet Service Providers and other network service providers which do not
provide content themselves, must therefore take steps to protect themselves
against allegations of abetment and /or conspiracy in the commission of
offences by the users to whom they only provide technological services.
• The real solution lies in the amendment of the law which must protect those
network service providers which only provide access and/or hosting services
and others in so far as they provide other technology and no content, from all
criminal or civil liabilities for any action transaction and content over the
Internet, which may be offensive to the law.
Jurisdiction and Cyber Crime

• As per section 75 of IT Act, 2000 it is clarified that the Act shall apply to an
offence or contravention committed outside India by any person if the act or
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conduct constituting the offence or contravention, involves a computer,

computer system or computer network located in India
• Example: If a person from the US hacks a computer system or network in India,
section 66 of the IT Act would jump into play to punish the accused for hacking
because his act involves a computer in India
• Similarly, where a person anywhere in the world plants a virus into a computer
system located in India, he would be liable under section 43 (c) of the IT Act to
pay damages by way of compensation not exceeding rupees one crore to the
victim.
• Jurisdiction over other cyber-crimes under the Indian Penal Code1860, has to
be determined by the provisions of the Criminal Procedure Code, 1973.
• The basic legal principle of Jurisdiction under the Code of Criminal Procedure,
1973 of section 177 is that every offence shall ordinarily be inquired into and
tried by a court within whose local jurisdiction it was committed.
• In a case where an act is an offence by reason of anything which has been
done and of a consequence which has ensued, the offence may be inquired
into or tried by a court within whose local jurisdiction such act has been done
or such consequence has ensued. (Section 179 of Cr.Р.С., 1973)
• Example : In a case where a person in Bombay does an act of hacking of a
computer system located in Delhi, he may be tried either in Bombay or Delhi
.The law also provides that in the case of any offence which includes
'cheating. if the deception is practiced by means of letters for
telecommunication messages, it may be inquired into or tried by any court
within whose jurisdiction such letters or messages were sent or where the
same were received. (Section 182 of Cr.P.C, 1973)
• In a case where two or more courts take cognizance of the same offence and
a question arises as to which of the courts has jurisdiction to inquire into or try
that offence, this question shall be decided by the High Court, under whose
jurisdiction both such court function Section 186 (a) of Cr.P.C, 1973)
• However, if the courts are not subordinate to the same High Court, the
question of jurisdiction shall be decided by the High Court within whose
appellate criminal jurisdiction the proceedings were first commenced . (Section
186 (b) of Cr.Р.С., 1973)
• In such circumstances, all other proceedings with respect to that offence shall
be discontinued.
• When two or more courts have jurisdiction over an offence, the choice of the
court for institution of the case lies with the complainant.
• He will obviously choose the forum which is most convenient for him and most
convenient for the accused.

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Nature of Cyber Criminality: Peculiar characteristics of Cyber-

crime as are as follows :

• The weapons with which cyber-crimes are committed are technology.

• Cyber - crime is extremely efficient, i.e. it operates and affects in no time
• Cyber-crime knows no geographical limitations, boundaries or distances
• The Act of cyber-crime takes place in cyber space which makes the
cybercriminal almost invisible
• Cyber-crimes have the potential of causing harm and injury which is of an
unimaginable magnitude.
• Because of invisibility of cyber criminality, it is extremely difficult to collect
evidence of cyber- crime and prove the same in the court of law.
• The weapons to commit cyber-crimes are easily and freely available in CDs
and even on the Internet
• Strategies to tackle cyber crime and Trends
• A cyber cop has to be at least a half IT Engineer to be a competent cybercrime
investigator
• Besides technical knowledge, the cyber cops must learn to use technical
weapons and tools such as trace and trap devices to detect cyber-crimes
• Because of the tendency of jumping geographical borders there has to be
cooperation between law enforcement agencies of different countries.
• Effective laws of extradition and their implementation are necessary to bring to
trial cyber criminals across borders.
• The most effective weapons to counter cyber crime are the use of encryption
and other security technologies.
• The IT industry must assume responsibility of protecting its own computer
systems and networks by using secure technologies.
• The government should encourage the use of security technologies and
should work in close partnership with the private sector.
• It must facilitate and encourage research and development of new security
technologies. Government should funds and support R&D and facilitate
education about the measures to counter cyber crime.
• Cyber-crimes are not reported by the victims for fear of eroding the confidence
of customers and the consequent loss of businesnesses.
• It has been found that cyber-crimes committed by employees and other
insiders in the organization, are on the rise.
• These attacks are driven by dissatisfaction of employees due to changes in
employment policy and changes in the management.
• The greatest increases in the cyber-criminality have been noticed in

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unauthorized insider access, besides theft of intellectual property and system

penetration by an external party.
• Cross cultural and cross-national, virus -related and denial-of-service attacks
have also shown a rising tendency.
• Attacks have also increased due to the proliferation of online banking.
• With the growth of cyber consumerism, cyber-crime which today inflicts mainly
websites and portals is also likely to enter our homes
• Criminal Justice in India and implications on Cyber Crime
• The Supreme Court held that where the offence is punishable with
imprisonment for a period not exceeding 7 years, where the accused is in jail
or not, the court shall close the prosecution evidence on completion of a
period of two years from the date of recording the plea of the accused of the
charges framed, whether the prosecution has examined all the witnesses or
not within the said period and the court can proceed to the next step provided
by law for the trial of the case.
• Further, in such case, if the accused has been in jail for a period of not less
than one half of the maximum period of punishment prescribed for the offence,
the trial court shall release the accussed on bail forthwith on such conditions
as it deems fit.
• For offences punishable with imprisonment for a period exceeding 7 years,
whether the accused is in jail or not, the court shall close the prosecution
evidence on completion of three years from the date of recording the plea of
the accused on the charge framed, whether or not the prosecution has
examined all the witnesses within the said period
• The State must take pro-active measures to ensure speedy criminal justice,
otherwise release the accused on bail liberally
• As a corollary of the trend towards conviction in criminal cases, the judiciary
has also become strict in the grant of bail. The trend against the grant of bail is
contrary to the settled legal principle that bail cannot be denied as a matter of
punishment.
• The courts today are quite influenced by the penal provision which is labeled
on the accused by the prosecution.

• The media is also substantially contributing to this attitude by giving wide

coverage to criminal cases and highlighting the cases of the prosecution and
thus giving an impression even before the start of the trial, as if those accused
are criminals.
• The overall trend in the judiciary and criminal laws today, is to create an
environment of deterrence
• Recently, the present Government proposed a law in place of TADA, which

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would provide for restrictions on the grant of bail to the accused, penalize
journalists for having information about terrorists and shift the burden upon the
accused to prove his innocence. All these are against the settled principles of
criminal jurisprudence
• The trends towards deterrence by leaning towards conviction strictness in the
grant of bail and legislative measures, would have serious implications on
cyber-crime cases especially for those accused of committing cyber-crimes.
• Since many of the cyber-crimes cases such as hacking, planting virus, cyber
fraud or defamation are committed over several geographical areas would only
add to the delay in the investigation and trial of cyber-crimes.
• Witnesses being scattered over different and faraway lands leading to time-
consuming investigation and trial, trend towards conviction, strictness in the
grant of bail and the hype generated by the media over cyber-crimes, would
seriously prejudice those accused of cyber-crimes. Such under-trials are likely
to be the new victims of cyber-crime.

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UNIT – 2

Contracts in the Infotech World:

Contracts in the Infotech World, Click-Wrap and Shrink-Wrap Contract:
Status under the Indian Contract Act, 1872, Contract Formation Under
the Indian Contract Act, 1872, Contract Formation on the Internet,
Terms and Conditions of Contracts.

Jurisdiction in the Cyber World:

Questioning the Jurisdiction and Validity of the Present Law of
Jurisdiction, Civil Law of Jurisdiction in India, Cause of Action,
Jurisdiction and the Information Technology Act,2000, Foreign
Judgements in India, Place of Cause of Action in Contractual and IPR
Disputes, Exclusion Clauses in Contracts, Abuse of Exclusion Clauses,
Objection of Lack of Jurisdiction, Misuse of the Law of Jurisdiction, Legal
Principles on Jurisdiction in the United State of America, Jurisdiction
Disputes w.r.t. the Internet in the United State of America.

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Chapter 1
Contracts in the Infotech World

Contracts in the Infotech World

 Electronic Commerce or ecommerce is defined as the buying and selling of
goods, or rendering of services using the internet.
 IBM defines e-commerce as the transformation of key business processes
through the use of internet technology.
 There are broadly four types of e-commerce transactions that blend and
correlate
1. information access,
2. interpersonal communication,
3. shopping services,
4. Virtual enterprises.
 Information access provides the users with a search and retrieve facility.
 Interpersonal communication services provide the users methods to exchange
information, discuss ideas and improve their cooperation.
 Shopping services allow users to seek and purchase goods or avail of services
through the electronic network or the Internet.
 The virtual enterprises are business arrangements where trading partners
who are separated by geography and expertise are able to engage in joint
business activities.
 It needs to be stated at the outset that the IT Act, 2000 does not apply to the
following transactions by virtue of section 1 (4):
 A negotiable instrument as defined in section 13 of the Negotiable Instruments
Act, 1881.
 A power-of-attorney as defined in section 1A of the Powers-of-Attorney Act,
1882.
 A trust as defined in section 3 of the Indian Trusts Act, 1882.
 A will as defined in clause (h) of section 2 of the Indian Succession Act, 1925,
including any other testamentary disposition by whatever name called.
 Any contract for the sale or conveyance of immovable property or any interest
in such property.

 Any such class of documents or transactions as may be notified by the Central

Government in the Official Gazette.
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Click-Wrap and Shrink-Wrap: Status under the Indian

Contract Act, 1872
 The legal process of a contract begins with an offer/proposal.
 An offer/proposal is followed by an invitation to offer.
 A bid is made as per the amount of offer.
 The acceptance of the bid would result into contract.
 Since our law of contracts grants freedom as to the modus of communicating
an offer, acceptance (except where the proposal /offer prescribes the manner
of acceptance) and revocation, clicking as a form of communication is legally
permissible.
 The mechanism of a click-wrap contract is simple.

 A party posts the terms and conditions on its web-site for selling
goods or rendering services and the consumer who is going to
buy the displayed goods or avail of the services, is required to
signify his acceptance of the terms and conditions either by
clicking an "I accept", "I agree" or a similar icon; or by typing "I
accept" or "I agree" or other specified words in an onscreen box
and then clicking a "Send" or similar button.

 By the aforesaid acts, a click-wrap contract comes into existence.

 Click-wrap agreements are serving various types of transactions, such as to

establish the terms for the download and use of software over the Internet; set
forth a web-site's terms of service, i.e. the rules by which users may access the
web-site or a portion thereof.

 Also, click-wrap agreements must be properly structured so as to enhance their

credibility and maximize the likelihood of the same being upheld.

 Since the parties do not physically come face to face with each other on the
Internet, click-wrap agreements are intended as a substitute in the online
environment.
 Also, it would be very inefficient, if not impossible, for the web-site manager to
negotiate with each consumer who visits the web-site.

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Care should be taken in the following matters:

 The user should be expressly notified of the terms and conditions contained in
the click-wrap agreement.
 The click-wrap agreement should be stated in a manner such that it can be
viewed before the option of acceptance or rejection is exercised. The click
options of "I agree" or "I accept", etc. should be placed at the end of the terms
of agreement.
 A user may by mistake click the "I accept"/"I agree“ icon and to avoid such
mistaken acceptance, a confirmatory acceptance mechanism should be
prescribed.
 This implies a two-step process, i.e. first the consumer would click "I accept"
and then the program should provide another icon such as "I confirm" as a
confirmation of the acceptance.
 To avoid doubts, it should be specifically stated that for contract formation, the
confirmation/second click would be considered.
 A user should be allowed to exit the process easily at any point of time.
 Any person, who has ever purchased a box of software, is familiar with a
license agreement governing the purchaser's use of the software.
 Generally, on the box containing the software, it is stated that the use of the
software is subject to the enclosed license agreement, which must be accepted
by the purchaser before using the software and if the terms are not acceptable,
the product should be promptly returned for a refund.
 Inside the box, the license agreement is generally enclosed as a document and
recorded in the media (floppy or CD) for display on screen. For instance, the

following stipulation is made on the box of Microsoft Office Professional 2000:

"You must accept the enclosed License Agreement before you can
use this product. The product is licensed as a single product. Its
component parts may not be separated for use on more than one
computer. If you do not accept the terms of the License Agreement,
you should promptly return the product for a refund."

 On the box of Microsoft Windows 2000 Server OEM, the following is stated:
"WARNING: By opening this package you agree that you have
read and understood the Microsoft Corporation Distribution
Agreement affixed to this package and agree to its terms and
conditions."

 The aforesaid types of agreements are popularly called "shrink-wrap contracts".

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 The term has now become a shorthand for the license agreement displayed
when a software is first installed onto a computer system.
 While the term "shrink-wrap contract" is new, the packaging and practice of
placing contracts inside boxes is not.
 It has been a long-standing practice to enclose warranty cards and contract
terms inside boxes containing products other than software. These terms are
generally available for review only after the product has been bought, and
opened usually in a location distant from the point of sale.

Contract Formation under the Indian Contract Act 1872

• The Indian Contract Act, 1872 prescribes the law relating to

contracts in India. The Act was passed by British India and is
based on the principles of English Common Law. It is
applicable to all the states of India except the state of Jammu
and Kashmir. It determines the circumstances in which
promises made by the parties to a contract shall be legally
binding and the enforcement of these rights and duties.
DEFINITION : Under Section 2(h), Indian Contract act defines
Contract as an agreement which is enforceable by law.

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Section 2 of the Indian Contract Act, 1872 describes as follows :

a) When one person signifies to another his willingness to do or to
abstain from doing anything, with a view to obtaining the assent of
that other to such act or abstinence, he is said to make a proposal.
b) When the person to whom the proposal is made signifies his assent
than the proposal is said to be accepted. A proposal, when accepted,
becomes a promise;
c) The person making the proposal is called the "promisor, and the
person accepting the proposal is called the "promise”.
d) When, at the desire of the promisor, the promise or any other person
has done or abstained from doing, or does or abstains from
e) doing, or promises to do or to abstain from doing something this act or
abstinence or promise is called a consideration for the promise
f) Every promise and every set of promises, forming the consideration
for each other, is an agreement
g) Promises which form the consideration or part of the consideration for
each other, are called reciprocal promises.
h) An agreement enforceable by law is a contract.
i) An agreement not enforceable by law is void.
j) An agreement which is enforceable by law at the option of one or more of
the parties thereto, but not at the option of the other others, is a voidable
contract A contract which ceases to be enforceable by law becomes void
when it ceases to be enforceable.

Section 4 : Communication When Complete :

 The communication of a proposal is complete when it the person to whom it is

made is conveyed regarding the same.

 The communication of an acceptance is complete, as against the proposer,

when it is put in a course of transmission to him so as to be out of the power of
the acceptor, as against the acceptor, when it comes to the knowledge of the
proposer.

Section 5 : Revocation of Proposal and Acceptance :

 A proposal may be revoked at any time before it is accepted but not

afterwards

 An acceptance may be revoked at any time before the communication of the

acceptance is complete as against the acceptor, but not afterwards
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 The communication of a revocation is complete, as against the person who

makes it when it is sent to the person to whom it is made, so as to be out of
the power of the person who makes it; as against the person to whom it is
made, when it comes to his knowledge."

Contract Formation on The Internet:

Section 11 of the IT Act, 2000 speaks about the properties of an e-record.

The erecord is said to belong to the originator if it was sent by

1. The originator himself.

2. A person who had the authority to act on behalf of the originator in
respect of that electronic record
3. An information system programmed by or on behalf of the originator to
operate automatically.

Time and place of dispatch and receipt of information through e- records

are considered to be important in legal matters especially in the following
areas:
Place:
1. Creation and termination of legal relations, rights such as contracts,
etc.
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2. Territorial jurisdiction of courts

3. Applicability of laws of a land
4. Evidentiary consequences

Time:
1. Determination of the period of limitation for initiating litigation
2. Timely compliance of legal obligations and procedures
3. Evidentiary consequences.

The Internet presents certain characteristic problems follows:

1. Ascertaining the time and place of dispatch and receipt of electronic

records.
2. Disregard for geographical borders.
Hence, here Section 13 comes into picture. Here we have a look at the place of
business of the parties as the place of dispatch and receipt of records.
Subsection (1),(2),(3), (4) and (5) play a important role over here.
Section 3 : As agreed to between the originator and addressee, an electronic
record is deemed to be dispatched at the place where the originator has his
place of business, and is deemed to be received at the place where the
addressee has his place of business
Section 4 : The provisions of sub-section (2) shall apply notwithstanding that the
place where the computer resource is located may be different from the place
where the electronic record is deemed to have been received under sub-
section (3)
Section 5. For the purposes of this section
a) if the originator or the addressee has more than one place of
business, the principal place of business, shall be the place of
business
b) if the originator or the addressee does not have a place of business,
his usual place of residence shall be deemed to be the place of
business
c) "usual place of residence', in relation to a body corporate, means the
place where it is registered"
Sub-Section 1 : The despatch of an electronic record occurs when it enters
the computer resource outside the control of the originator.

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Sub-section (2) of section 13 speaks of the time of receipt of

an e-record:
Sub Section(2) : Save as otherwise agreed between the originator and the
addressee the time of receipt of an electronic record shall be determined as
follows
a) if the addressee has designated a computer resource for the purpose
of receiving electronic records,
i) receipt occurs at the time when the electronic record enters
the designated computer resource; or
ii) if the electronic record is sent to a computer resource of the
addressee that is not the designated computer resource,
receipt occurs at the time when the electronic record is
retrieved by the addressee
b) if the addressee has not designated a computer resource along with
specified timings, if any, receipt occurs when the electronic enters the
computer resource of the addressee

Sub-section (3) of section 12 of the IT Act, 2000 :

 Where the originator has not stipulated that the electronic record
shall be binding only on receipt of such acknowledgement, and
the acknowledgement has not been received by the originator
within the time specified or agreed or, if no time has been
specified or agreed to within a reasonable time, then, the
originator may give notice to the addressee stating that no
acknowledgement has been received by him and specifying a
reasonable time by which the acknowledgement must be
received by him and if no acknowledgement is received within
the aforesaid time limit he may after giving notice to the
addressee, treat the electronic record us though it has never
been sent"

Terms and conditions of Contracts:

 The Indian Contract Act, 1872 grants freedom to the transacting parties to
stipulate the terms and conditions they enter into.

 The parties must ensure that the conditions are not void as per the Indian
Contract Act, 1872.

 Agreements that are declared void under this act are as follows : Sections of
Indian Contract Act, 1872 which are considered as void

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Besides this contract made under the following conditions

are declared void
1. Governing Laws and Jurisdiction Clauses
2. Limitations of Liabilities
3. Warranties (Sales of Goods Act, 1930)
4. Non-Disclosure/Confidentiality Clauses
5. Arbitration Clause
6. Entire Agreement
7. Restraining Employees from Competitive Activities
8. Software License Agreement
Warranties:

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Chapter 2
Jurisdiction in the Cyber World

Questioning the Jurisdiction and Validity of the Present Law

of Jurisdiction
 the jurisdiction and Validity of the present law of jurisdiction

 Challenges faced by the IT and the legal communities at the global level are:

 The risk of web-sites facing litigation in foreign lands thereby causing them
extreme hardships
 Inconsistent and harsh decisions of courts on the applicability of the law of
jurisdiction to the cyber world.
 Every consumer on the map can be reached

 Global actions on websites invite visitors to different lands.

Civil Law of Jurisdiction in India:

 Jurisdiction of civil courts in India can be broadly classified in the following

three categories:
1 Pecuniary
2 Subject matter
3 Territorial
 Pecuniary jurisdiction implies jurisdiction based upon monetary limits

 Subject Matter : Jurisdiction with reference to subject matter means that

jurisdiction for certain subject has been exclusively vested in a particular court.

 Territorial : Territorial Issues are concerned with the issues on hand

Territorial Jurisdiction is subject to pecuniary limits and of jurisdiction based on
the subject matter.

 As per the Code of Civil Procedure, 1908, a suit regarding immovable

property (i.e. land, building, etc.) is required to be instituted in the court within
whose jurisdiction the property is situated. (Section 16 of Code of Civil
Procedure, 1908)
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 Where the immovable property is situated within the jurisdiction of the

different courts, the suit may be instituted in either of the said courts. (Section
17 of Code of Civil Procedure, 1908)
 Where it is uncertain as to within whose jurisdiction out of two or more courts
any immovable property is situated, any of the said courts, if satisfied that there
is ground for uncertainty may adjudicate the same. (Section 18 of Code of
Civil Procedure, 1908]

 In a case for compensation for wrong done to a person or to movables, if the

wrong was done within the jurisdiction of one court and the defendant resides,
or carries on business or personally works for gain, within the jurisdiction of
another court, a suit can be filed at the option of the plaintiff, in either of the
courts having jurisdiction over the said places. (Section 19 of Code of
Procedure, 1908)

 Where the cause of action, wholly or in part, arises. (Section 20 Code of Civil
Procedure, 1908)

 Explanation : Where the defendant is a corporation which include a

company within its ambit, the following two situations are provided for in the
Code of Civil Procedure.
 Where a corporation has its sole or principal office at a particular place, the
courts within whose jurisdiction such office is situated would also have
jurisdiction even if the defendant does not actually carry on business at that
place.

 By legal fiction, it is provided that it shall be deemed that the corporation is

carrying on business at that place where the sole or principal office is located

 Where cause of action arises at a place where subordinate office of the

corporation is located, courts at such place would have jurisdiction and not the
principal place of business

CAUSE OF ACTION:
 Cause of action' means the fact or facts which give a person the right to seek
judicial relief.
 It is a situation or state of facts which would entitle a party to sustain action and
give him the right to avail a judicial remedy.
 Cause of action means the whole bundle of material which are necessary for
the plaintiff to prove in order to entitle him to succeed in the suit.

 Everything which if not proved would give the defendant a right to immediate

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judgement in his favour, would constitute the cause of action.

 Cause of action' also includes the circumstances forming the infringement of

the right or the occasion for the action.

JURISDICTION AND THE INFORMATION TECHNOLOGY

ACT, 2000

 Cause of action depends upon the place or places from where parties
communicate, interact, operate and transact with one another, sub-sections
(3), (4) and (5) of section 13 of the IT Act 2000 assume relevance in
determining the place of cause
of action.

 SUB-SECTION(3) Save as otherwise agreed to between the originator and

the addressee, an electronic record is deemed to be dispatched at the place
where the originator has his place of business, and is deemed to be received
at the place where the addressee has his place of business

 SUB-SECTION(4) The provisions of sub-section (2) shall apply

notwithstanding that the place where the computer resource is located may be
different from the place where the electronic record is deemed to have been
received under subsection (3)

 SUB-SECTION(5) For the purposes of this section,

a) if the originator or the addressee has more than one place of
business, the principal place of business, shall be the place of
business
b) if the originator or the addressee does not have a place of business,
his usual place of residence shall be deemed to be the place of
business
c) "usual place of residence", in relation to a corporate, means the place
where it is registered"

 Our Civil Procedure Code provides that a foreign judgement is conclusive on

matters directly adjudicated upon between the parties, but would have no
applicability in India if it has not been pronounced by a court of competent
jurisdiction, or it has not been delivered on the merits of the case, or where it
appears ex-facie to be founded on an incorrect view of international law, or a
refusal to recognize the law of India in cases where such a law is applicable,
or where the proceedings are in violation of the Principles of Natural Justice,
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i.e. where a fair hearing is not granted or the proceedings are biased, or
where the foreign judgement sustains a claim which is in breach of any Indian
law. (Section 13 of Code of Civil Procedure, 1908)

PLACE OF CAUSE OF ACTION IN CONTRACTUAL AND IPR

DISPUTES

 The Supreme Court has stated the various principles pertaining to

jurisdiction in contractual matters: In the matter of a contract where may
arise causes of action of various kinds. In a suit for damages for breach of
contract the cause of action consists of the making of the contract, and of its
breach, so that the suit may be filed either at the place where the contract
was made or at the place where it should have been performed and the
breach occurred.

 The making of a contract is part of the cause of action. A suit on a contract,

therefore, can be filed at the place where it was made. The determination of
the place where contract was made is part of the law of contract

 But making of an offer from a particular place does not form cause of action in
a suite for damages for breach of contract

 Ordinarily, acceptance of an offer and its intimation result in a contract and

hence a suit can be filed in a court within whose jurisdiction the acceptance
was communicated

 The performance of a contract is part of cause of action and a suit in respect of

the breach can always be filed at the place where the contract should have been
performed or its performance completed.

 If the contract is to be performed at the place where it is made, the suit of the
contract is to be filed there and nowhere else.

 In suits for agency actions the cause of action arises at the place where the
contract of agency was made or the place where actions are to be rendered
and payment is to be made by the agent.

 Part of cause of action arises where money is expressly or impliedly payable

under a contract.

 In cases of repudiation of a contract, the place where repudiation is received is

the place where the suit would lie.

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 If a contract is pleaded as part of the cause of action giving jurisdiction to the

court where the suit is filed and that contract is found to be invalid, such part of
cause of action disappears

EXCLUSION CLAUSES IN CONTRACTS:

 This is, however, subject to two exceptions, i.e, a contract to refer the dispute
for arbitration and to abide by its award, and a contract which limits the
jurisdiction by agreement to one or more courts.
 It has been held by the Supreme Court that an exclusion clause in a contract is
valid and lawful show as long it does not oust the jurisdiction of all the courts
which would otherwise have jurisdiction to decide the suit under the law.

ABUSE OF EXCLUSION CLAUSES:

 The utility of these classes is to specify jurisdiction which is mutually

convenient to the parties and to avoid jurisdiction.
 But where the parties are unequal and an exclusion clause restricts jurisdiction
to a place which would cause extreme hardships to one party to the extent that
it would make it prohibitive for the weaker party to litigate his claims such a
clause would be oppressive and unjust Courts generally take the view that the
parties ought to exercise care while entering into a contract and therefore
cannot claim immunity for such clauses later.
 In practice, only in exceptional circumstances, courts interfere with such
clauses. Thus the responsibility lies on the netizens, especially consumers, to
exercise care and caution before entering into contracts containing exclusion
clauses.
 They must ensure that these clauses are equitable and would not be prohibited
in nature for instituting a cause against the other party

OBJECTION OF LACK OF JURISDICTION:

(Section 21 and 21-A CPC) states

 Lack of jurisdiction is broadly of two kinds, i.e. inherent lack of jurisdiction, and
lack of pecuniary or territorial jurisdiction. Under the law, where a court
inherently lacks jurisdiction, its judgments and orders are nullities.

In such cases, a nullity remains a nullity which can be declared so at any stage
of the litigation including appellate proceedings.

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UNIT – 3

Battling Cyber Squatters and Copyright Protection in the

Cyber World:
Concept of Domain Name and Reply to Cyber Squatters, Meta-
Tagging, Legislative and Other Innovative Moves Against Cyber
Squatting, The Battle Between Freedom and Control on the Internet,
Works in Which Copyright Subsists and meaning of Copyright,
Copyright Ownership and Assignment, License of Copyright,
Copyright Terms and Respect for Foreign Works, Copyright
Infringement, Remedies and Offences, Copyright Protection of
Content on the Internet; Copyright Notice, Disclaimer and
Acknowledgement, Downloading for Viewing Content on the Internet,
Hyper-Linking and Framing, Liability of ISPs for Copyright Violation in
the Cyber World: Legal Developments in the US, Napster and its
Cousins: A Revolution on the Internet but a Crisis for Copyright
Owners, Computer Software Piracy.

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Battling Cyber Squatters and Copyright Protection in

Cyber World

Domain Name: -
 Every computer on the Internet is assigned a unique address called Internet
Protocol Address (IP Address).

 A typical IP address looks like this : 192.168.10.20. This IP address belongs to

a web server on which the google.com website is hosted. If you use an
Internet browser and type in http://192.168.10.20 in the address bar, you will
reach the google.com website. However, it is very inconvenient to remember
such numbers.

 It is much easier for humans to remember names (google.com is a domain

name). This is why the domain name system (DNS) was developed. It is the
DNS that enables you to type in http://www.google.com instead of
http://192.168.10.20.

Cyber-Squatting:
• Cyber Squatting is registering, selling or using a domain name with the
intent of profiting from the goodwill of someone else's well known trademark.
• Cyber Squatting is defined as a malpractice where individuals use a domain
name reflecting the name of a prior existing company, intending to attain profit
from the goodwill of a Trademark already belonging to someone else.
• A cyber squatter identifies popular trade names, brand names trademarks or
even names of celebrities, and registers one or more of them in his name
with the malicious intent of extorting money from those who are
legitimately interested or associated with such domain names other motives
for cybersquatting include appropriation of goodwill, attraction of web traffic,
selling the domain names for a profit in the market, etc. Another cause of
frequent domain name dispute is the first-come-first serve principle adopted
for registration of domain names.
• At the time when a domain name is registered, no inquiry is made as to
whether it is in conflict with others' rights under the Intellectual Property law
• There are numerous ways of cyber-squatting. It can be done by obtaining a
Second Level Domain (SL.D) name registration of a well-known company or a
brand within a Top Level Domain (TLD).
• Example: A cyber squatter has registered radiff.com' (misspelling/slight
variation of rediff.com). Registration of slight variations/misspelling of others'

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marks or company names have become frequent. The Internet Corporation for
Assigned Names and Numbers (ICANN) administers the policy for domain
name system. Realizing the problem of cyber-squatting, on October 24, 1999,
ICANN approved its Uniform Domain Name Dispute Resolution Policy
(UDRP) and the accompanying Rules of Procedure, for the purposes of
resolving domain name disputes.
• Administrative Panel: The dispute resolution service providers have their
respective panels for dispute resolution, called Administrative Panel or
Arbitration Panel. An Administrative Panel is composed of one or three
independent and impartial persons appointed by the dispute resolution service
provider that is selected to administer the dispute in accordance with the
UDRP Policy and Rules of ICANN.

The procedure of appointment of the Panel by WIPO

• If both the complainant and respondent indicate that they would like the
dispute to be decided by a single Panelist, the Panelist will be appointed by the
WIPO Centre from its list of Domain Name Panelists
• If the complainant designates three Panelists and the respondent designates
one Panelist, or vice versa, then the WIPO Centre will appoint a three-person
Administrative Panel. In doing so, the WIPO Centre will try to appoint one of
the candidates nominated by the complainant and one of the candidates
nominated by the respondent. If it is unable to do so, the Centre will make an
appropriate appointment from its list of Domain Name Panelists.
• The third Panelist, or Presiding Panelist, will be appointed on the basis of
preferences indicated by the parties from among a list of five candidates that
will have been provided by them by the WIPO center.
• If it is the respondent who chooses a three member Panel the respondent is
required to pay half of the applicable fees, in all other situations, the fees are
paid by the complainant
• If no response is filed by the respondent, then the WIPO Centre will appoint
the Administrative Panel in accordance with the number of panelists
designated by the complainant (i.e. one or three) If the complainant
designates a three-member panel, the Centre will try to appoint one of the
candidates nominated by the complainant, failing which it will make the
appointment from its published list. It will make the appointment of the other
two Panelists from its list of Domain Name Panelists.
• The Panelists are selected on the basis of their well-established reputation for
their impartiality, sound judgement, and experience as decision-makers, as well
as their substantive experience in the areas of international trademark law,
electronic commerce and Internet-related issues.
• The Jurisdiction of the said approved domain name dispute resolution service
providers for deciding domain name disputes arising out of the registration
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agreement between the registrant and the registrar a time of registration of the
domain name.
• By virtue of the domain name registration agreement, the registrant submits to
the jurisdiction of the domain name dispute resolution service providers
approved by ICANN to resolve domain name disputes under the UDRP and
the Rules of Procedure
• The ICANN Administrative Procedure is only available to resolve disputes
between a third party alleging an abusive registration of a domain name and
the domain name registrant.

The Cause Of Action Invoking The UDRP

The following grounds together constitute the cause invoking the UDRP :
 The domain name of the registrant/respondents is identical or confusingly
similar to a trademark or service mark in complainant has rights and the
registrant / respondent has no rights or legitimate interests in respect of the
domain name and The domain name has been registered and is being used in
bad faith by the registrant / respondent.

The following circumstances provide evidence that a domain name in

used in registered and used in bad faith :

 Circumstances indicating that the respondent -registrant has

registered or acquired the domain name primarily for the purpose of selling,
renting, or otherwise transferring the domains names registration to the
complainant who is the owner of the trademark or service mark or to a
competitor of that complainant, for valuable consideration in excess of the
respondent's documented out-of-pocket costs directly related to the domain
name, or

• The respondent-registrant has registered the domain name in order to prevent

the owner of the trademark or service mark from reflecting the mark in a
corresponding domain name, provided that respondent-registrant has
engaged in a pattern of such conduct

 The respondent-registrant has registered the domain name primarily for the
purpose of disrupting the business of a competitor By using the domain name,
the respondent-registrant intentionally attempted to attract, for commercial
gain, internet users to his web site or other online location, by creating a
likelihood of confusion with the complainant's mark as to the source,
sponsorship, affiliation, or endorsement of the respondent.

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META-TAGGING:
 A process whereby a website owner places certain words on his web-site, so
that the site figures on search engine when a search of that particular word is
made.
 A company's name or well-known trademark may be improperly used as a
meta-tag to divert an Internet user to another web-site.
 Meta tags are codes contained within websites that provide a description of the
website.These tags are embedded in the source code of the website. They are
put so that search engines (e.g. google.com, yahoo.com, etc.) can accurately
identify what the websites relates to.
 The description tag contains a description of the web page.
 The keywords tag contains relevant associated keywords.

LEGISLATIVE AND OTHER INNOVATIVE MOVES AGAINST CYBER

SQUATTING
• The National Association of Software and Service Companles (NASSCOM)
have recommended that the Copyright Act should be amended to include
cyber-squatting as an offence therein In late 1999, the Anti-cybersquatting
Consumer Protection Act was enacted in the US
• The Anti-cybersquatting Consumer Protection Act amends Section43 of the
Trademark Act to prohibit bad-faith registration of, traficking in, or use of a
domain name that is a registered trademark, is identical or confusingly similar
to a distinctive mark (registered or not), or is confusingly similar to or dilutive
of a famous mark.
• Traditional remedies under the Trademark Act are available in most cases.
Alternatively, a plaintiff can elect to sue for statutory damages between US
$1000 and US $1, 00,000 per domain name; the final amount awarded is at
the discretion of the judge. The court has also been empowered to order the
transfer or forfeiture of the domain name.
• The ICANN has recently introduced seven new domain name extensions
(.aero, .museum, coop, biz, info, pro, name). Innovative mechanisms have
been introduced with respect to some of the aforesaid extensions, which could
reduce the threat of cyber squatting.
• If two or more applications are filed for the same name, the registrar would on
a particular day pool in all the applications and randomly choose the registrant
• Thereafter, the aggrieved party may resort to the process called
"STOP(Startup Trademark Opposition Policy), Under this procedure, the
domain name would be frozen for a month. The domain name dispute shall
then be settled and decided. However, the burden of proving bad faith
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registration is not as heavy as under the Uniform Domain Dispute Resolution

Policy (UDRP)
• Due to growing importance of e-commerce and the domain name system these
innovative measures would go a long way to deter cyber squatters.

The Battle Between Freedom and Control On Internet:

 The philosophy behind the Internet is freedom of, and or, information.
 The nature of the Internet permits free access to information. Netizens can
access, store, copy and transmit any information on the Internet and thus as a
natural consequence the internet should be free from the regime of
intellectual property.
 The opposing school of thought argues that the Internet is just another
medium of communication, interaction and business; hence the regime of
intellectual property should apply as it does in the physical world Therefore,
the law of intellectual property has applied, and shall always apply to the
Internet.
 The law of copyright in India is contained in the Copyright Act, 1957 and
applies to the physical and the cyber world.
 Section 43(b) which is as follows, has been introduced into the IT Act 2000 so
as to take care of certain important aspects of intellectual property protection in
the electronic world.
 "If any person without permission of the owner or any other person who is in
charge of a computer, computer system or computer network downloads,
copies or extracts any data, computer data base or information from such
computer, computer system or computer network including information or data
held or stored in any removable storage medium.

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Works In Which Copyright Subsists And Meaning Of Copyright:

Here We have Copyright Act, 1957 . Subsists means to remain in force or effect.
Section 14 in the Copyright Act, 1957

Section 14 (a) In case of literary, dramatic or musical

work not being a computer program:
i) To reproduce work in any material form
including the storing of it in any
medium by electronic means
ii) Issue copies of work to the public not
being copies in circulation
iii) To perform work in public, or
communicate it to the public
iv) To make any cinematograph film or
sound recording in respect of the work
v) To make translation of work
vi) To make adaptation of the work

Section 14 (b) In case of a computer program:

i) To do any of the acts specified in

clause(a)
ii) To sell or give on commercial rental or
offer for sale or for commercial rental
any copy of the computer program

Section 14 (c) In case of an artistic work :

i) To reproduce work in any material

form including the depiction in three
dimensions of a two-dimensional work
or in two dimensions of a three-
dimensional work
ii) To communicate the work to the

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public
iii) Issue copies of work to the public not
being copies in circulation
iv) To include the work in any
cinematograph film
v) To make adaptation of the work

Section 14 (d) In case of cinematograph film:

i) To make a copy of the film including a

photograph of any image forming part
thereof.
ii) To sell or give on hire or offer for sale
or hire any copy of the film regardless
of whether such copy has been sold
or given on hire on earlier occasions
iii) To communicate the film to the public

Section 14 (e) In case of sound recording :

i) To make any other sound recording

embodying it.
ii) To sell or give on hire or offer for sale
or hire any copy of the sound
recordings regardless of whether
such copy has been sold or
given on hire on earlier
occasions
iii) To communicate the film to the
public

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Copyright Ownership And Assessment:

Section 17 First owner of copyright : Subject to the provisions of this Act, the
author of a work shall be the first owner of the copyright therein : provided that
a) in the case of a literary, dramatic or artistic work made by the author
in the course of his employment by the proprietor of newspaper,
magazine or similar periodical under a contract of service or
apprenticeship, for the purpose of publication in a magazine or similar
periodical, the said proprietor shall in the absence of any agreement
to the contrary, be the first owner of the copyright in the work in so far
as the copyright relates to the publication of the work in any
newspaper, magazine or similar periodical, or to the reproduction of
the work for the purpose of its being so published, but in all other
respects the author shall be the first owner of the copyright in the
work.
b) Subject to the provisions of clause (a), in the case of a photograph
taken, or a painting or portrait drawn, or an engraving or a
cinematograph film made, for valuable consideration at the instance of
any person, such person shall, in the absence of any agreement to
the contrary, be the first owner of the copyright therein.
c) in the case of a work made in the course of the authors employment
under a contract of service or apprenticeship, to which clause (a) or
clause (b) does not apply, the employer shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein.
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d) in the case of any address or speech delivered in public, the person

who has delivered such address or speech or if such person has
delivered such address or speech on behalf of any other person,
such other person shall be the first owner of the copyright therein
notwithstanding that the person who delivers such address or speech,
or, as the case may be, the person on whose behalf such address or
speech is delivered, is employed by any other person who arranges
such address or speech or on whose behalf or premises such
address or speech is delivered.
e) in the case of a Government work, Government shall, in the absence
of any agreement to the contrary, be the first owner of the copyright
therein.
f) in the case of a work made or first published by or under the direction
or control of any public undertaking, such public undertaking shall, in
the absence of any agreement to the contrary be the first owner of
the copyright therein

Section 18(2) in the Copyright Act, 1957: Where the assignee of a copyright
becomes entitled to any right comprised in the copyright, the assignee as
respects the rights so assigned, and the assignor as respects the rights not
assigned, shall be treated for the purposes of this Act as the owner of copyright
and the provisions of this Act shall have effect accordingly.

Section 19 in the Copyright Act, 1957 (1): No assignment of the copyright in any
work shall be valid unless it is in writing signed by the assignor or by his duly
authorized agent No assignment of the copyright in any work shall be valid
unless it is in writing signed by the assignor or by his duly authorized agent.
• The assignment of copyright in any work shall identify such work, and shall
specify the rights assigned and the duration and territorial extent of such
assignment
• The assignment of copyright in any work shall also specify the amount of
royalty payable, if any, to the author or his legal heirs during the currency of
the assignment.
• The assignment of copyright in any work shall identify such work, and shall
specify the rights assigned and the duration and territorial extent of such
assignment
• The assignment of copyright in any work shall also specify the amount of
royalty payable, if any, to the author or his legal heirs during the currency of
the assignment.
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• If the period of assignment is not stated, it shall be deemed to be five years

from the date of assignment
• If the territorial extent of assignment of the rights is not specified, it shall be
presumed to extend within India.

According to Section 30 of Copyright Act, the following can grant

interest in a copyright by way of licenses :

A) the owner of the copyright in any existing work

B) The prospective owner of the copyright work in any future

The following are the important exceptions to

copyright infringement with respect to a computer
program, provided in the Copyright Act :
• the making of copies or adaptation of a computer program by the lawful
possessor of a copy of such computer program, from such copy
i. In order to utilise the computer program for the purpose which it was
supplied; or
ii. To make back-up copies purely as a temporary protection against loss,
destruction or damage in order only to utilize the computer program
for the purpose for which it was supplied."

• Software licenses also prohibit copying, distribution or otherwise transfer of the

same, reverse- engineering, modifications or adaptation of the code contained
in the software. Violation of the terms of a license constitutes infringement
under the copyright act.

License of Copyright: According to Section 30 of the Copyright Act, the following

can grant interest in a copyright by way of licenses:
a) The owner of the copyright in any existing work
b) The prospective owner of the copyright in any future work.

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Copyright terms and Respect for Foreign Terms:

Section 22 Copyright Subsists in a computer program for
60 years from the beginning of the
calendar years

Section 25 In case of Photograph copyright shall subsist

until 60 years from the beginning of the
next calendar year following year in which
photograph is published

Section 26 In case of Cinematographic film, copyright

shall subsists until 60 years from the
beginning of the next calendar year
following year in which the film is
published

Section 27 In case of sound recording, copyright shall

subsists until 60 years from the beginning
of the next calendar year following year in
which the record is published

Copyright Infringement, Remedies And Offenses

51. When copyright infringed. (Section 51 in the Copyright Act,1957) :

Copyright in a work shall be deemed to be infringed
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a) when any person,

 without a licence granted by the owner of the copyright or the Registrar of

Copyrights under this Act or in contravention of the conditions of a licence so
granted or of condition imposed by a competent authority under this Act

i. does anything, the exclusive right to do which is by this Are

conferred upon the owner of the copyright, or

ii. permits for profit any place to be used for the communication of
the work to the public where such communication constitutes are
infringement of the copyright in the work, unless he was no aware
and had no reasonable ground for believing that such
communication to the public would be an infringement of
copyright; or

b) when any person-

i. makes for sale or hire, or sells or lets for hire, or

ii. by way of trade distributes either for the purpose of trade or

iii. to such an extent as by way of trade exhibits in public, or displays

or offers for sale or hire,

iv. or to affect prejudicially the owner of the copyright,

v. or imports into India, any infringing copies of the work. Provide

that nothing in sub- clause

vi. shall apply to the import of copy of any work, for the private
and domestic use of importer.

Section 63 in the Copyright Act, 1957 : Any person who knowingly infringes or
abets the infringement of the copyright in a work, or any other right conferred by
this Act, shall be punishable with imprisonment for a term which shall not be less
than six months but which may extend to three years and with fine which shall not
be less than fifty thousand rupees but which may extend to two lakh rupees

Section 63 A in the Copyright Act, 1987: If a person in convicted the second

time or subsequently, the punishment is enhanced to not less than one year but
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which may extend to three years and with fine of not less than 1 lakh rupees but
which may extend to 2 lakh

Section 63 B in the Copyright Act, 1987:A person who knowingly uses on a

computer an infringing copy of a computer program, is liable for imprisonment for
a term which shall not be less than 7 days but which may extend to three years
and with fine which shall not be less than 50000/- but which may extend to rupees
2 lakh The Court has the power not to impose any sentence of im prisonment and
may impose a fine which may extend to 50000

Section 64 in the Copyright Act, 1957:Any police officer, not below the rank of a
sub-inspector, may, if he is satisfied that an offence under section 63 in respect
of the infringement of copyright in any work has been, is being, or is likely to be,
committed seize without warrant, all copies of the work, and all plates used for
the purpose of making infringing copies of the work, wherever found, and all
copies and plates so seized shall, as soon as practicable, be produced before a
Magistrate.

Any person having an interest in any copies of a work seized under sub-section (1)
may, within fifteen days of such seizure, make an application to the magistrate
for such copies being restored to him and the Magistrate, after hearing the
applicant and the complainant and making such further inquiry as may be
necessary, shall make such order on the application as he may deem fit

Section 67 in the Copyright Act, 1957: Penalty for making false entries in
register, etc., for producing or tendering false entries.-Any person who,-
A. makes or causes to be made a false entry in the Register of Copyright
kept under this Act, or

B. makes or causes to be made a writing falsely purporting to be a copy

of any entry in such register, or

C. produces or tenders or causes to be produced or tendered as evidence

any such entry or writing, knowing the same to be false, shall be
punishable with imprisonment which may extend to one year, or with
fine, or with both

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Section 68 in the Copyright Act, 1957

Penalty for making false statements for the purpose of deceiving or influencing any
authority or officer- Any person who,-
A. with a view to deceiving any authority or officer in the execution of the
provisions of this Act, or
B. a view to procuring or influencing the doing or omission of anything in
relation to this Act or any matter thereunder, makes a false statement or
representation knowing the same to be false shall be punishable with
imprisonment which may extend to one year, or with fine, or with both.

Section 69 in the Copyright Act, 1957. Offences by companies-

Where any offence under this Act has been committed by a company
every person who at the time the offence was in charge of, and was
responsible to the company for, the conduct of the business of the
company, shall be deemed to be guilty of such offence, shall be
liable to be proceeded against and punished accordingly However, if
the person proves that the offence was committed without his
knowledge or that he exercised due diligence to prevent the
commission of the offence, such person shall not be liable.

Where it is proved that the offence was committed with the consent or connivance
of, or is attributable to any negligence of any director, manager, secretary or
other officer of the company, then notwithstanding the aforesaid, i.e. even if he
is not in charge of and responsible to the company for the conduct of its
business, such person(s) shall be deemed to be guilty of that offence.

A. "company" means a body corporate and includes a firm or other

association of persons; and

B. "director" in relation to a firm means a partner in the firm

Offences under the copyright law are to be tried by courts of the Metropolitan or
Judicial Magistrates, as the case may be

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Copyright Protection of Content on the internet, Copyright Notice,

Disclaimer And Acknowledgement

 Cyber world too enjoys the protection of copyright law Web content which may
be in the form of text, graphics, audio or video files and the underlying
software program are all entitled to protection in accordance with section 43
(b) of the IT Act, 2000.

 It is true that whenever an author posts any material on the Internet, it is done
with the intention that such material is read and thus the users have the right to
access/view/read the same. But this right cannot be extended to reproduction,
copying, or transmitting the material to others, unless specifically consented
or agreed to by the copyright owner.

 Section 43 (b) of the IT Act, 2000 imposes a liability of up to t I crore upon a

person who unlawfully downloads data. The compensation is payable to the
person affected. This provision has been introduced with the objective of
checking unauthorized downloading and copying. by granting the
compensation to the victim of the same.

 The IT Act also provides the adjudication and appellate mechanism with
respect to the aforesaid violations.

 The moment any of the works in which copyright may subsist [i.e. original
literary, dramatic, musical and artistic works; cinematograph films and sound
recording) is first created, i.e. embodied in any medium.
There is a general misunderstanding that displaying a copyright notice of
ownership is necessary.

 No such notice is required by the law in India. However, it may be a good idea
to incorporate a copyright notice for creating a psychological impression and
as a reminder to the people concerned with the work, thereby deterring
infringementBy a disclaimer on a website, the creator of the same makes no
claim as to the copyright in the works posted on the web-site.

 Similarly, it is seen that many web-developers resort to acknowledgement of

the copyrights of others' works posted on the web pages. Such an
acknowledgement also does not avoid liability under the copyright law.

 It should be clearly understood that acts which do not constitute infringement

are specifically stated in section 52 of the Copyright Act, 1952. Exceptions
cannot be created by disclaimers and acknowledgements.

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Downloading for Viewing Content on the internet, Hyper Linking and

Framing

Downloading for viewing the content on the internet:

• When a webpage is downloaded for the purposes of only viewing the same, it
does not amount to copyright infringement. Since the intent and purpose of
the user is to only view the webpage and since downloading only takes place
out of technical necessity, no question of infringement of copyright arises
• Downloading out of technical necessity for viewing / accessing a webpage is
technically distinguishable from storage on a hard-disk or on a floppy
• Whenever material is posted on to the Internet, it is done with the intention that
such material is read and viewed
• Hence, the legislature should clarify in the Copyright Act, 1957 that the
downloading which takes place out of technical necessity while viewing a web
page on the Internet, would not amount to copyright infringement

Hyper-Linking :
• Linking is one of the primary means through which Internet users can quickly
and conveniently navigate through the numerous web-sites on the Internet.

• Linking is a system which permits the user, who clicks on a specified location
on the linking site, to be automatically connected to the linked site. In simple
words, Hyperlink is a reference to a webpage or document on the Internet.
Linking can be categorized into surface-linking and deep-linking.

• Surface-linking automatically and directly takes the user from the linking site to
the first / home page of the linked site. Deep linking implies that the user is
linked directly into the interior pages of the linked site and not the home page
which is by passed.

Framing

 Framing is a link to another site whereby such a site is displayed within a

window or frame, A webpage can be divided into several frames In Framing,
the Internet user remains at the framing site and views the contents of the
framed site within a window or a frame. Framing was introduced in 1996 as a
feature of Netscape Navigator browser.

 Framing technology allows a website designer to embed independently

scrollable windows within its own border When a web page or site is framed
within another web-site, it's URL or domain name is not displayed. Instead, the
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URL and web page border from the originally accessed site appears within
this border.

 Further users are not able to bookmark the target site, as the bookmark will
save the URL of the framer.

 Infringement under the trademark law may thus be argued by the framed site.
In US, the copyright law has also been invoked against framing.
Framed companies may resort to claims under the law of torts and for unfair
trade practices under the MRTP Act, 1973.Framing can give rise to an action
for loss or dilution of advertising potential of a site. Since the target site is
framed, its advertising may get distorted or appear ineffectively small.

 It is advisable that, before framing, permission should be obtained from the

website sought to be framed.

Liability of ISPS For Copyright Violation in the Cyber World: Legal

Developments in the US

 "79. Network service providers not to be liable in certain cases -

For the removal of doubts, it is hereby declared that no person
providing any service as a network service provider shall be
liable under this Act, rules or regulations made there under for
any third party information or data made available by him if he
proves that the offence or contravention was committed without
his knowledge or that he had exercised all due diligence to
prevent the commission of such or contravention.

Explanation: For the purposes of this section

a) “network service provider" means an intermediary

b) third party information" means any information dealt with by a

network service provider in his capacity as an intermediary"

 The purpose of copyright protection is "to assure authors the right in their
original expression, and to encourage others to build freely upon the ideas and
information conveyed by a work.

 The copyright law protects original works of authorship fixed in any tangible
medium of expression", and grants to the copyright holder a set of exclusive
rights.

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 These rights include the right to reproduce, distribute, perform, display or

license their work. Copyright infringement occurs when someone other than
the holder of the copyright engages in one or more of the exclusive rights
without the consent of the copyright holder. There are certain exceptions to
the copyright holders' exclusive rights in the copyrighted work, out of which
the most important one is the doctrine of fair use. According to the principle of
fair use, individuals are allowed to use copyrighted works for certain specific
purposes without the consent of the copyright holder.
There are two forms of copyright infringement: direct copyright infringement
and secondary copyright infringement.

• The US courts have decided several cases on the issue of copyright

infringement liability on the Internet. Some of these cases concerning the
copyright infringement liability of ISPs and BBS (Bulletin Board Service) are
discussed.

 The court analyzed the various elements needed for proving copyright
infringement. It does not matter that defendant may has been unaware of the
copyright infringement. Intent to infringe is not needed to find copyright
infringement.

 Intent or knowledge is not an element of copyright infringement, and thus even

an innocent is liable for infringement; rather, innocence is significant to a trial
court when it fixes statutory damages"

 The court held that a finding of direct copyright infringement requires some
element of direct action or participation in the infringing activities. The court
held that the Copyright Act is cast in terms of activities which are reserved to
copyright owners.

 It follows that infringer must actually engage in one of those activities in order
directly violate the statute.
But the court noticed that the defendants' action of encouraging subscribers
to upload new pictures and of pre-screening the photographs were enough to
transform him from a passive provider exempt from liability to a participant in
the infringement.

• The court held that the liability for contributory copyright infringement arises
when, with the knowledge of the infringing activity, the party induces causes or
materially contributes to the infringing conduct of another The content
community saw the limitation on copyright infringement liability of ISPs.

 This would weaken copyright enforcement on the Internet.The limitation of

liability was needed to prevent a flood of legal suits. Lack of protection from
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online copyright infringement liability would dampen entrepreneurial interest in

the ISP industry. The content community equated ISPs with the publishing
industry which has always been held strictly liable for copyright infringement.

 ISPs should be made duty bound to help minimize online piracy and legal
obligation to monitor the users in order to check copyright infringement should
be imposed on them.

 To settle the controversy over the liability of service providers such as ISPs,
OSPs and Search Engines, and for certain other matters, the Digital
Millennium Copyright Act (DMCA) was enacted in October 1998in the US.

 The Act seeks to implement WIPO Treaties and limit the liability of
service providers for copyright infringement in certain instances. The part of
the Act which protects service providers is known as Online Copyright
Infringement Liability Limitation Act.

 The five copyright infringement liability limitations which service provider is

entitled to, are for
- Transmitting, routing and providing connections to infringing
material
- System caching
- Information stored by a user
- Linking or referring users to infringing material

 Disabling access to or removing in good faith allegedly infringing material,

There are provisions which require that the Service Provider must have actual
knowledge of the infringement, awareness of the facts and circumstances of
the infringement, or have received notice of the infringing activity in order to
be made liable. The provisions state that Service Providers will still not be
liable if, upon notification, the ISP responds expeditiously to remove or disable
access to the infringing material.

 The Digital Millennium Copyright act is landmark legislation for internet

service providers. Having made it harder to find an ISP liable for copyright
infringement, the content community would need to shift their anti-piracy
strategy from legal tactics to technology innovations.

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Napster And Its Cousins: A Revolution on the internet but a crises for
Copyright owners

 The Napster program was originally a way for nineteen-year-old Shawn Fanning
and his friends throughout the country to trade music in the MP3 Format.

 Fanning and his friends decided to try to increase the number of files available
and involve more people by creating a way for users to browse each other's
files and to talk to each other.

 Napster went live in September 1999 and gained instant popularity. Napster's
number of registered users was doubling every 5-6 weeks. In February 2001,
Napster had roughly 80 million monthly users compared to Yahoo's 54 million
monthly users. At its peak Napster facilitated nearly 2 billion fle transfers per
month and had an estimated net-worth of between 60
-80 million dollars

 Fanning designed Napster as a searching and indexing program means that

files were not downloaded from Napster's servers but rather than from a peer's
computer.

 Users had to download a program, MusicShare, which would allow them to

interact with Napster's servers.

 When users would log onto their Napster account, MusicShare would read
the names of the MP3 files that the user had made public and would then
communicate with Napster's servers so a complete list of all public files from
all users could be compiled.

 Once logged into Napster a user would simply enter the name of the file they
wanted to download and hit the search button to view a list of all the sources
that contained the desired file. The user would then click the download button
and the Napster server would communicate with the host's MusicShare
browser to facilitatea connection and begin the download. This method of file
sharing is referred to as peer-to-peer file sharing.

 Napster sent shock waves in the music industry which responded by filing
lawsuits against Napster alleging copyright violation. It was argued by the
Music industry and its supporters that Napster is facilitating piracy and building
a business based on others copyrighted work without permission. It is alleged
on behalf of Recording Industry Association of America (RIAA) that most of
the music swapped using Napster's violates the copyright law. Several
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arguments have been raised on behalf of Napster.

 Napster gave new artists a way to distribute and promote their music directly to
a huge community of fans worldwide.

 On February 12, 2001, the United States Court of appeal held that Napster
was liable for least two of the copyright holder's exclusive rights .

 Since Napster users can freely upload files onto the Napster server such that
any anonymous user can request for a file and procure a copy, it amounts to a
violation of the plaintiff's distribution rights. Copying on the user's computer
amounts to a violation of the right of reproduction. The court has held that the
Napster users are engaged in commercial use.

 Also, Napster had led to reduction in CD sales It was held that Napster users
were directly infringing copyright and Napster was liable on the principle of
"contributory infringement.

 As per this principle, any person who induces, causes or materially

contributes to copyright infringement by another and has knowledge of such
infringement by another, may be held liable. From the above judgments in the
Napster appeal, it is clear that P2 networking and MP3 files are here to stay
and are revolutionizing the Internet.

Computer Software Piracy: Software Piracy can cause the following

losses :

• Loss of jobs

 Higher costs to software industry and hence higher prices of software for
legitimate customers

• Loss of taxes

• Dampens the spirit to innovate and invest in the development of new software
Software Piracy is a lucrative business because :

• Committed with luxurious ease

• Illegal/pirated copy is as good as original

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• Costs of software are negligible

• Software piracy can easily be concealed and hence there is difficulty for law
enforcement agencies to tackle it.

Strategies Adopted In India for controlling Software Piracy :

• Removal of import duty on software

• Reduction in prices of Software

• Awareness and Training of Law enforcement agencies concerned with

investigation and prosecution of Software piracy cases

• Extensive media campaign against software piracy

• Strict implementation of code of conduct for member companies of

NASSCOM

• Knowing use of an infringing copy of a computer program has been made an

offense, punishable with imprisonment for a term which shall not be less than 7
days but may extend up to 3 years and with fine not less than 50000 rupees
but which may extend up to rupees 2 lakhs by the amendment of Copyright
Act, 1994.

• Also these offenses are non-bailable

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UNIT – 4

E-Commerce Taxation: Real Problems in the Virtual World:

A Tug of war on the concept of ‘Permanent Establishment’, Finding
the PE in Cross Border E-Commerce, The United Nations Model Tax
Treaty, The Law of Double Taxation Avoidance Agreements and
Taxable Jurisdiction Over Non-Residents, Under the Income Tax Act,
1961, Tax Agents of Non-Residents under the Income Tax Act,1961
and the Relevance to E-Commerce, Source versus Residence and
Classification between Business Income and Royalty, The Impact of
the Internet on Customer Duties, Taxation Policies in India: At a
Glance.

Digital Signature, Certifying Authorities and E-Governance:

Digital Signatures, Digital Signature Certificate, Certifying Authorities
and Liability in the Event of Digital Signature Compromise,
EGovernance in India: A Warning to Babudom!

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Chapter 1
E-Commerce Taxation: Real Problems in the Virtual World:

A Tug of War on the Concept of Permanent Establishment:

• As per the Income Tax Act, 1961, an Indian resident is liable to be taxed on his
global income and a non-resident on his income which:
• is received or is deemed to be received in Indian; or
• Accrues or arise or is deemed to accrue or arise to him India.
o In cross – border commerce, the principle may lead to double taxation
of a person .For instance, if A, a resident of country X earns business
income in country Y be taxed twice ,i.e.in both the said countries.
• To avoid such double taxation of the same transaction in different countries
the system of Double Taxation Avoidance Agreements (DTAAs) has been
evolved, in which the principle of Permanent Establishment (also called as
PE) has been incorporated
o A permanent establishment is most often defined as place of
management, an office a, factory a workshop, a mine quarry or other
place of extraction of natural resources, or a building site or assembly
project which exists for more than a certain period (6 to12 months)
o There are two models of tax treaties which serve as a agent or
permanent representative.
• There are two models of tax treaties which serve as a guide for DTAAs.
These are:
1. OECD Model Treaty
2. United Nations Model Treaty.
The Concept of PE under the OECD Model Treaty:
• PE is a fixed place of business in a country or a dependent agent in a country
who the authority to enter into contracts on behalf of the assesse and who
habitually exercises such authority.
A permanent establishment is most often defined as place of management, an
office a, factory a workshop, a mine quarry or other place of extraction of
natural resources, or a building site or assembly project which exists for more
than a certain period (6 to12 months)

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• There are two models of tax treaties which serve as a agent or permanent
representative.

 Article 5 excludes the “use of facilities solely for the purpose of storage,
display or delivery of goods.” Therefore, the mere existence of a warehouse in
the source country would not constitute a PE there.

IS PE Concept relevant and appropriate to cross border e-commerce

or should it be rejected?
 It is been argued that it was formulated in and for the non-digital ere where
transactions across borders were primarily in tangible goods and when
business in another country required as a matter of expediency, permanent
physical presence in that country.

 It is argued that the PE concept should therefore not be extended to e-

commerce; an argument mainly on behalf of the developing countries. It is
apprehended by them that application of the concept of e-commerce would
result in revenue losses to them. It is felt that many foreign enterprise based in
the developed part of the world would be able to engage in full scale business

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activities in the third-world countries without a permanent establishment there

which would result in loss of income tax revenues to them.

 Therefore it is advocated that the concept of PE should be abandoned for e-

commerce and DTAAs should accordingly be reviewed and amended.

Finding the PE In Cross Border E-Commerce:

 The committee of fiscal Affairs of the OECD has affirmed that the principles
which underlie the OECD Model Tax Convention are capable of being
applied to e-commerce
 However, the struggle to adjust the PE principle to cross-border e-commerce,
itself exposes and proves inappropriateness of the said principle. The
following are proves inappropriateness of the said principle .The following are
some of questions with respect to the applicability of PE to cross-border e-
commerce:
 Where is the PE in cross-border e-commerce transactions?
 Does the web PE in cross-border e-commerce transactions?
 -Can a server as a PE?
 Whether the presence of the internet Service Provider constitutes a PE?

Web-site as a PE?
 Paragraph 4 of the Commentary to Article 5 defines the term "place of
business" to cover any premises, facilities or installations u0sed for carrying on
the business of the enterprise, whether or not they are used exclusively for that
purpose.
 Therefore, permanent establishment refers to a geographical place of
business. However, since a web-site by itself is a combination of software and
electronic data, it does not fit into the concept of permanent establishment. It
may be stated that a web-site by itself cannot constitute a permanent
establishment because it does not have any physical presence with reference
to a geographical place.

Can Web Servers Serve as PE?

 The location of a server as a PE would lead to web-sites migrating to servers in
tax havens or countries with lower rates of taxation so as to minimize liabilities.
 Changing servers is a simple exercise at minimal cost. For favorable tax
treatment, a web- site may locate itself on a foreign address giving an
impression that its place of business is at such an address. Moreover, where
several servers located in different parts of the world are used, it would cause
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complexity in determining the tax jurisdiction. The OECD has been working
inter-alia on the issue of whether the web server can serve as a PE

Can Internet service providers provide a PE?

 It has been found that an ISP, generally, is not an agent of the enterprise to
which the web- site belongs because it does not have the authority to conclude
contracts for and on behalf of the enterprise, Hence it was agreed that the
concept of PE cannot apply to ISPs.
 Article 5 of the Model Treaty provides that for an agency to constitute a PE
there must be a relationship whereby the foreign enterprise relies on the
domestic agent to conclude binding contracts. An ISP merely provides
technical services to web-sites like the telephone exchange and does not in
any way participate in the business activities of the web-sites hosted by 'it
 The Global Information Infrastructure Commission (GIC) has recognized that
it, is rare that an ISP would have any authority to enter into binding contracts on
behalf of a customer.
 ISPs are only providers of technical services and are economically as well as
legally independent of their customers.
 They are like telephone companies who provide the technological medium of
communication and hence cannot be called agents.
 The relationship of an enterprise with its ISP is only a contract for services to
be provided to the enterprise and not to act on behalf of the enterprise as a
legal agent.

The United Nations Model Tax Treaty

 The UN Model Treaty says that since the developing countries are mostly net
importers, they (source countries) must be given priority in taxation of cross-
border transactions.
 Under the terms of the UN Model, the source of income usually forms the basis
for taxation, and the permanent establishment term found in the OECD Model,
though accepted by the UN Model, generally encompasses an expanded list of
activities.
 For this reason, although identical in many respects to the OECD Model
Treaty, the United Nations Model Treaty makes it easier in comparison to find a
permanent establishment.
 Broadly, there are four distinctive features between the OECD Model and
Article 5 and 7 of the UN Model. These are :
 The words "or delivery" do not appear in the exclusion provision of the UN
Model. While the OECD Model Treaty exempts businesses, which maintain
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facilities strictly for purposes of storage, display or delivery the UN wording

qualifies those engaging in delivery as permanent establishments. The
commentary to the UN Model states that deletion purpose will be deemed a
permanent establishment.

 Under the UN Model, agents who merely deliver goods for the non-resident
enterprise qualify as permanent establishment. The UN Mode Treaty holds an
agent to be a permanent establishment not only if he is dependent on the
company, but also if he is independent but all or most of his work is done for
the company. The OECD Model, in contrast, would not find a permanent
establishment by an agent, simply delivers goods, or when the agent is
independent.

 The fundamental difference regarding the definition of PE between the two

model treaties concerns situations where there is no formal PE, yet the
income of the enterprise is still held to be taxable under the "force of attraction"
principle under Article 7 of the UN Model Treaty.
 This principle allows "an existing permanent establishment to attract income
that would not be attributable to the permanent establishment according to the
arm's length principle. Where income is obtained through sales of the same or
similar goods, or from the same or similar business activities as those where a
company's permanent establishment is located, that other income is attributed
to the existing permanent establishment. In other words, there is no need to
find an independent permanent establishment if the business activities are
sufficiently similar.
 Though the UN Model Treaty is liberal when compared to the OECD Model, it
cannot be said to be appropriate for cross border e-commerce. Under the force
of attraction" rule, source-based taxation could be imposed on Internet
transactions where there is an existing permanent establishment performing
the same or similar business activities in the source country.
o However, for those businesses which perform all their activities
electronically on the Internet and do not have any agents or maintain
any facilities within the source country, the "force of attraction" rule
would not apply and they would not be subject to taxation in the source
country
o In the opinion, the principles pertaining to agency as deemed PE in
the UN Model are appropriate for cross-border e-commerce.
However, the
PE principle in the OECD Model and the UN Model is obsolete,
irrelevant, illogical and inappropriate to the cyber world.

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Law of Double Taxation Avoidance Agreements and Jurisdiction Over

Non-Residents, Under Income Tax Act, 1961
 There are two types of Double Taxation :
1. Jurisdictional Double
2. Taxation Economic Double

Need for Double Taxation Agreement (DTAA)

 DTAA are entered into countries to avoid double taxation
 DTAA in most cases only resolves jurisdictional double taxation
 DTAA is basically negotiated document.

DTAA vs. Domestic Tax Law

 Section 90 of the Income-tax Act, 1961(the Act): Domestic tax law will apply to
the extent it is more beneficial than the DTAA
 DTAA'S Override the domestic tax law.
 All taxable entities are classified into three categories:
1. Resident (also called "resident and ordinarily resident' or "R &OR)
2. Resident but not ordinarily resident(also called RNOR)

Non-Resident Income Tax Act, 1961

Section 6.Residence in India For the purposes of this Act,

1. An individual is said to be resident in India in any previous year, if he

a) is in India in that year for a period or periods amounting in all to one
hundred and eighty- two days or more; or
b) having within the four years preceding that year been in India for a
period or periods amounting in all to three hundred and sixty-five days
or more, is in India for a period or periods amounting in all to sixty days
or more in that year
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2. A Hindu undivided family, firm or other association of persons is said to be

resident in India in any previous year in every case except where during that
year the control and management of its affairs is situated wholly outside India.
3.A company is said to be resident in India in any previous year, it
a) it is an Indian company or
b) during that year, the control and management of its affairs is situated
wholly in India.
4. Every other person is said to be resident in India in any previous year in every
case, except where during that year the control and management of his affairs is
situated wholly outside India
5. If a person is resident in India in a previous year relevant to an assessment year
in respect of any source of income, he shall be deemed to be resident in India in
the previous year relevant to the assessment year in respect of each of his other
sources of income.
6. A person is said to be not ordinarily resident in India in any previous year if such
person is-
a) an individual who has not been resident in India in nine out of the ten
previous years preceding that year, or has not during the seven
previous years preceding that year been in India for a period of, or
b) periods amounting in all to, seven hundred and thirty days or more or
c) a Hindu undivided whose manager has not been resident in India in
nine out of the ten previous years preceding that year, or has not
during the seven previous years preceding that year been in India for
a period of, or periods amounting in all to, seven hundred and thirty
days or more.

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Tax Agents of Non-Residents under The Income Tax Act, 1961 And
The Relevance To E-Commerce

Source versus Residence And Classification Between Business Income And

Royalty
o Residence based taxation is easier to administer in the e-commerce
environment than source-based taxation.
o It is argued that a person should be subjected to income tax in the country
where he resides or maintains the strongest ties.
o According to this thought, income can be easily determined between different
tax jurisdictions on the application of the rule of residence. The system on
taxation shall also be equitable between all countries.
o If the pro-residence-based tax principles are applied to e-commerce, developing
countries stand to lose revenue because few of the high technology companies will
engage in e-commerce activities in
developing countries while being a resident there.
o They will conduct business activities in developing countries while being permanently
based in the developed world which the medium of the Internet facilities.
o Residence-based taxation of e-commerce would also facilitate evasion and encourage
tax havens.
Classification between Business Income and Royalty
o A simple electronic order processing of tangible goods would result in business
profits and not royalty since it does not involve the use of a copyright. In such
cases, the product is delivered physically to the customer.

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If a publisher acquires the right to download and use copyrighted material for his
publication, then the payments made by him would be characterized as royalty
o Online customer supports such as installation advice and troubleshooting
information have become common feature.
o This can be done by online technical documentation, a troubleshooting
database and even by e- mail with a human interface.
o It has been agreed by TAG (Technical Advisory Group) members that
payment is such a situation would be in the nature of FTS (Fees for Technical
Services).
o Payment for advertisement has been characterized as business profits. Web-
based advertising is gaining popularity these days and is likely to be a major
profitable activity in the cyber world in future also.
o TAG has also visualized professionals such as lawyers, doctors, etc providing
advice to client via e-mail, video conferencing, etc. It has been unanimously
agreed new name universally a great that Income in the hands of these
professionals would be in the nature of business profits.
o Income from search and retrieval facilities of general online information and
data has also been characterized as business profits. However, if the data
made available is tailored according to the needs of the user there is an
element of research and application of specialized skills, it should be treated
as FTS (Fees for Technical Services)
o If a website operator places a content provider for the right to display his
copyrighted material, the income accruing to the content provider is in the
nature of royalty. However, where the content providers are
o paid for creation of new content and the web operator becomes the owner of
such content and the web operator becomes the owner of such content, the
income accruing to the content provider should be classified as business
profits.

o TAG has also considered the issue as to the nature of income derived from
subscription-based interactive access to websites. The web-site operator
features digital content including information, music albums, video games,
etc. on the web-site, for which the registered user plays a fixed periodic fee
for access to the interactive site. Subscriptions are paid for availing of
services. Subscription payments should be treated as business income.
o Where the service provider offers space on its server for hosting the web-
sites, such a service provider does not obtain any right in the
copyright created by the developer on the content of the web-site. The
payment is made for renting space on the server and its time based in
nature. The transaction is done in the course of business of the service
provider in offering space on his server. TAG has recognized that such
payments should normally be considered as business income.
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o FTS is broadly defined as payments of any kind in consideration for services

of a managerial technical or consultancy nature except the payments for
independent personal services. Under the narrow definition, FTS means
consideration for services, ancillary and subsidiary, for the use of property for
which royalty is paid or consideration for services, which make available
technical knowledge, experience, skill, know-how or processes, or consist of
the development and transfer of a technical plan or technical design
o To conclude, the discussion on taxation on income in the e-commerce
environment it may be said that our government must seriously deliberate on
the redundant nature of the PE concept in the Double
Taxation Avoidance Agreements and accordingly formulate effective tax
policies in the interests of our country.

o Although our Income Tax Act, 1961 contains the mechanism of taxing non-
residents, it would be of no good in the e-commerce environment
present PE concept in tax treaties. Our tax policy makers should not be
swayed by the views of OECD working groups and others. These views may
be considered but it would be fatal to follow them blindly. The tax policies
should be fair, just and practically workable.

The Impact Of Internet On Custom Duties

o The nature of the Internet has the effect of defeating the law governing customs
duties, because it disregards imports and exports by land, sea or air.
o The Internet does not recognize land customs barriers and check-posts on
borders, sea-ports and airports. The customs authorities all over the globe have
been rendered virtually impotent by the Internet.
o The problem lies in the regulation of import and export of electronic
transmissions delivered through the Internet.
o Several countries realizing the inherent and practical difficulties of the task and
accepting the power of the Internet, have declared a moratorium on imposition
of customs duties on electronic transmissions.
 Electronic transmissions are also not chargeable to customs duties in India.
 The European Union has been making serious efforts to tax sales of digital products
 The OECD is also working on ways and guidelines to tax Internet download.
 Technological means are being developed to tax e-deliverables.
 It is proposed that taxes should be deducted from the payment to the
suppliers. Imposition of
 customs duties on electronic transmissions is a challenge to the global

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community which raises the following issues of significance: o

Administration of the regime of customs duties on transmissions
o Impact of imposing such customs duties, upon the Internet and
o Classification of goods and services from electronic
transmissions/deliverables
o The reason, due to which several countries have decided not to
impose customs duties on cross-border e-transmissions, is the
difficulty in classification between goods and services
 The issue of classification between goods and out of e-transmissions is
important since it would determine the applicability of GATT or GATS.
Countries have different commitments under these two agreements. Under
the Sale of Goods Act, 1930 goods means every kind of movable property
other than actionable claims and money, and includes stock and shares,
growing crops, grass and things attached to or forming part of the land which
are agreed to be severed before sale or under the contract of sale. "Movable
Property" means property of every description except immovable property,
 The Internet has made innumerable e-transmissions of the information society.
If a person downloads software into the hard-disc of his computer or on a CD,
the software assumes character of goods whereas if the same software is
used online, it changes into a service.
 It would be practically impossible to investigate and verify as to whether the e-
transmission has been downloaded as a product or was merely a
service.Moreover, to impose custom duties on the multitude of e-
transmissions on the basis of the wide definitions of "goods" and "movable
property" as aforesaid would be obnoxious and have the effect of undermining
the Internet as a medium.
 The Internet also mocks at the definition of "import" which means bringing into
India from a place outside India. The basis of imposing customs duties is the
import into India, which is defeated by the Internet.
 Today, the transaction is characterized as a simple service which does not
require any online transmission of software
o Customs duties on e-deliverables can be imposed and administered
successfully provided the following principal and spirit:
o A very careful selection should be made out of the
electronics deliverables for the imposition of customs duties. The selection
must ensure that the ordinary netizens consumers at large who purchase e-
deliverables for private use of consumption at the end of the chain of
production or hire e-services are not labelled with the status of importers under
the law thereby requiring compliance of imports and

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customs procedures. In the opinion, only cross-border technology transfer and

online import of software by the business sector could be selected for
imposition on customs duties.

o The customs and import-export procedures should be very simple and

convenient for the assessee so as to encourage complaints of the same.
o The rates of customs duties should be very reasonable for encouraging
compliance. Parity in customs duties between e-imports and physical imports
of the same product is desirable. In any event, e-imports should not attract
higher customs duties than p-imports because such a system would discourage
e-commerce and the Internet as a medium
o The OECD has advocated that the system of taxing e-commerce should be
equitable, i.e. taxpayers similarly placed should be taxed similarly; it should
be simple in terms of administration and compliance costs, it should be
certain so that the tax implications can be ascertained in advance; it should
be effective so that the potential for tax evasion and avoidance are minimized,
economic distortions should be avoided, and the system should be sufficiently
flexible and dynamic so that taxation and technology keep pace with one
another. Low rates of duties, coupled with easy procedures and effective
enforcement would ensure legal compliance. One of the possible ways of
enforcement of the customs laws upon cross- border e-commerce is to
monitor the remittances involved in the transaction. For instance, presently in
India, importers of software are located through foreign e-controls and
procedures for remittances.

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Taxation Policies In India: At A Glance

 The import of Information Technology software is exempt from customs duty

as per the entry in General Exemption No. 121(Notification No. 16/2000-Cus,
dated 1.3.2000) as shown in the following table :

 S No.  Chapter of  Description of Goods  Standard Rate

Heading No. or
Sub-Heading
No.

 28  49 or  The following goods  Nil

5 85.24 namely: i)Information
 Technology Software
and

ii)Document of title
 conveying the right to
use Information

Technology Software

 Earlier the exemption from customs duty was restricted, as is apparent from
their entry in General Exemption No. 121(Notification No. 23/98 –Cus, dated
2.6.98) shown in the following table :

S No. Chapter of Heading Description of Goods Stan

No. or Sub- dard
Heading No.
Rate

206 49 or 85.24 The following goods namely: Nil

i)Computer Software and
ii)Document of title conveying

the right to use Computer

Software(Computer License)

 There is also no applicability of Special Additional Customs Duty(SAD) on IT

Software. There are certain important customs notifications pertaining to the IT
sector as stated in the following

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Table:

S No. Notification No. Particulars

18/99 – Cus dt. 11.2.99

(General Exemption
No. 36A) plotter, scanner, monitor, keyboard and storage unit received by a
school.

Exemption to computers and computer peripherals donated to

educational, research charitable institutes or public funded or
16.7.98(Gene government organization by 100% EOU, Software Technology Park,
ral Exemption Electronic Hardware Technology Park and Export
No. 36)
Processing Zone Scheme

Notification No.

cus dt. 22.10.91 as Exemption to specified goods imported for purpose

of development of software 140/91- for export

amended by No
71/2000 – Cus dated
22.5.2000(General

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 Even under the Income Tax Act, 1961, certain tax reliefs have been granted
to the IT sector. For instance, under section 80HHE of the Tax Act, 1961,
deduction of the profits derived from the business has been granted to an
assessee being an Indian company or a person (other than a company)
resident in India. These are :
 Export out of India of computer software or its transmission from India to a place
outside India by any means Providing technical services outside India in
connection with the development or production of computer software.
 Subject to the stipulated conditions, section 10A of the Income Tax Act, 1961
grants to deduction from the total income of the assessee, of such profits and
gains as are derived by an undertaking from the
export of articles or things or computer software, for a period of ten consecutive
assessment years beginning with the assessment year relevant to the previous
year which the undertaking begins to
manufacture of produce such articles or things or computer software, as the
case may be.
 Section 10B of the Income Tax Act, 1961 grants a deduction from the total
income of the assessee of such profits and gains as are derived by a 100%
export-oriented undertaking from the export of articles or things or computer
software for a period of ten consecutive assessment years beginning with
the assessment year relevant to the previous year in which the undertaking
begins to manufacture of produce articles or things or computer software, as
the case may be.
 Tax holidays under sections 10A and 10B have recently been extended to IT
Enabled Services also, by the Government of India, which has been
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welcomed by the IT industry. The list of IT Enabled Service granted

deductions under the said sections include Medical Transcription, Call
Centers, Back-office operations, GIS, Data Digitization, Animation, Web
content development, Web services, Data processing, etc. For IT Enabled
Services to claim a tax holiday under the aforesaid provisions till 2010, it is
mandatory for units to register under the Software Technology Parks (STP),
100% Export-Oriented Units (EOU) or Export Processing Zones Schemes.
Under section 10A the unit is required to be physically located in the STP or
EPZ, while under section 10B; the unit can claim tax benefit even though it is
not physically located at a STP/ EPZ. The speed with which the Government
of India has been taking steps to give tax benefits to the IT sector reflects its
approach of boosting this sector

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Chapter 2
Digital Signatures, Certifying Authorities & E- Governance.

DIGITAL SIGNATURES:
 The Information Technology Act 2000 (IT Act) prescribes digital signatures as
a means to authenticate the document, to identify the person to the contents of
the document binding to person putting digital signature
 A digital signature is a mathematical scheme for demonstrating the authenticity
of a digital message or document
 A valid digital signature gives a recipient reason to belive that the message
was created by known sender, and that is not altered in transit.
 Digital Signatures are based on public key encryption. The Functioning of DS is
based on public key cryptography.
 Refers to a cryptographic system requiring two separate keys, one of which is
secret and one of which is secret and one of which is public. Although
different, the two parts of key pair are mathematically inked .
 One key locks or encrypts the plain text, and the other unlocks or decrypts the
cipher text Neither key can perform both functions. One of these keys is
published or public, while the other is kept Private.
 It can also assure the recipient of the authenticity of a document because a
private key can be used to encode a message that only public key can
decode.
 Since public key encryption is slow and time consuming the hash function is
used to transform a message into a unique the hash function is used to
transform a message into a unique shorter fixed length value called the hash
result
 *Hash serves the purpose of an index of the original text it is an algorithm
mapping or translation of
 One sequence into another .The hash function is such the same hash result is
obtained every time that hash function is used on the same electronic record.
 *In other words mapping is one and not many to one. One cannot reconstruct
the original message from the hash result. The encryption of a hash result pf
the message with the private key of the sender is called a digital signature.

WHY DO WE USE DIGITAL SIGNATURE?

 There are several reasons to use Digital Signature:
 *For Efficiency: The signature will be much shorter and thus save time since
hashing is generally much faster than signing in practice
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 *For Authentication: Digital signatures can be used to authenticate the source

of messages. When ownership of a digital signature secret key is bound to a
specific user a valid signature shows that the message was sent by that user
 *FOR Integrity: The sender and receiver of a message may have a need for
confidence that the message has not been altered during transmission
 *For Non-Repudiation: It is an important aspect of Digital Signatures .By this
property, an entity that has signed some information cannot at a later time
deny having signed it. Similarly, access to the public key only does not enable
a fraudulent party to fake a valid signature.

WHAT ARE THE ADVANTAGES OF USING DIGITAL SIGNATURES?

 A digital signature also provides non-repudiation, which means that it prevents
the sender from claiming that he or she did not actually send the information.
 A digital signature is superior to handwritten signature as it is nearly impossible
to counterfeit, plus it attests to the contents of the information as well as the
identity of the signer.
 A digital signature serves the same purpose as a handwritten signature.
However, a handwritten signature. However, a handwritten signature is easy
to counterfeit
 Digital Signatures enable the recipient of the information to verify the
authenticity of the information
 To verify the authenticity of the information’s origin and also verify that the
information is intact
.Thus digital signatures provide authentication and data integrity.

DIGITAL SIGNATURE CERTIFICATE

 A Digital Signature Certificate contains public key as certified by Certifying
Authority.
 Digital Certificates serve as an identity of an individual for a certain purpose
 A Certificate Authority or Certification Authority (CA) is an entity that issues
digital certificate.
 It is a grant of a right by certifying authorities who have the license to issue
digital signature
 Certificate in favor of the subscribers for which a procedure has to be followed.
 *The Digital signature Certificate application from would be as provided by the
Certifying Authority
 *The application from must be accompanied by fees not exceeding RS 25000
as may be the Central Government ,to be paid to the Certifying Authority.
 Different fees be prescribed for different classes Of applicants by the Central
Government
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 A Certification practice statement has been defined in the IT Act 2000 as a

statement issued by the CA to specify the practices that the CA employs in
issuing Digital Signature Certificates.
 On receipt of an application for issuance of a Digital Signature Certificate the
Certifying Authority may after consideration of the certification practice
statement or the other statement and after making such inquiries as may be
deemed fit grant a Digital Signature Certificate to the applicant or may reject
the application for reasons to be recorded in writing .
 No application for issuance of a Digital Signature Certificate can be rejected
unless the applicant is given a reasonable opportunity of showing cause
against the proposed rejection.
 Before the issuance of a Digital Signature , the Certifying Authority must
 Confirm that the users name does not appear in its list of compromised users
 Comply with the procedure as defined in his Certification Practice Statement
including verification of identification and/or employment.
 Comply with all privacy requirements.
 Obtain consent of the person requesting the Digital Signature Certificate that
the details of such Signature Certificate can be published on a directory
service.
 Suspension:
o A Digital Signature Certificate cannot be suspended for a period
exceeding 15 days unless a subscriber has been given an
opportunity of being heard in the matter.
o The suspension of a Digital Signature Certificate is required to
be communicated to the subscriber by the Certifying Authority.
 Revoking:
o A Certifying Authority also has been empowered to revoke a Digital
Signature Certificate issued by it:
o Where the subscriber or any other person authorized by him makes a
request to that effect.
o Upon the death of the subscriber.
o Upon the dissolution of the firm or winding up of the company where
the subscriber is a firm or a company
o On suspension or revocation of a Digital Signature Certificate ,as the
case may be the Certifying Authority is required to publish a notice of
the same in the repository specified in the Digital Signature Certificate
for publication of such notice

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Certifying Authority and Liability in the Event of Digital Signature Compromise

 E-Governance in India: Warning to Babudom

o The following sections are to be considered in E-Governance:
o Section 4, 5, 6, 7, 8 and 9 of IT Act, 2000 E-Governance:
 Punjab:
o PRISM (Punjab Registration Information System Module) : Land
Records
o File Tracking System
 Kerala:
o FRIENDS (Fast Reliable Instant Efficient) – Bills – Electricity Bills -17
Different
o 352 Universities
 Gujarat:
State Transport: Check Post Project
 Mafipura:
 Tiny village of 39 families
 Gyandoot: 3 Public Health Hospitals have been linked through video
conferencing.
______________________________________________________________________
Section 4 Electronic records and digital signatures have been granted legal
recognition.Where any law provides that information or any other
matter shall be in writing or in the typewritten or printed form, then
notwithstanding anything contained in such law, such requirement
shall be deemed to have been satisfied if such information or
matter is rendered or made available in an electronic form and is
accessible so as usable for a subsequent reference

Section 5 Where any law requires that any matter is authenticated by

affixing the signature then notwithstanding anything contained in
such law, such requirement shall be deemed to have been
satisfied if the matter is authenticated by means of electronic
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signature affixed in such manner as prescribed by the Central

Government
________________________________________________________________________

Section 6 -Filling of any form, application or any document with

any office, authority, body or agency owned or
controlled by the appropriate government in particular
manner
-issue or grant of any license, permit, sanction or
approval by whatever name called in a particular
manner
-Receipt or payment of money in a particular manner
________________________________________________________________________
Section 7 Any law provides that documents, records or information shall be
rained for any specific period, then, that requirement shall be
deemed to have satisfied if such documents, records or
information are retained in the electronic form, if –
- The information contained therein remains accessible so as to be
usable for a subsequent reference
- - the electronic record is retained in the format in which it was
originally generated, sent or received or in a format which can be
demonstrated to represent accurately the information originally,
generated, sent or received
The details which will facilitate the identification of the origin;
destination, date and time of dispatch or receipt of such electronic
record are available in the electronic record
________________________________________________________________________
Section 8 Publication of rule, regulation, order, by-law, notification or any
other matter to be published in the Official Gazette
________________________________________________________________________

Section 9 Section 6, 7 and 8 do not confer right to insist any government

authority to accept, issue, create, retain and preserve any
document in the form of electronic records or any monetary
transaction in the electronic form
_______________________________________________________________________
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UNIT – 5

The Indian Evidence Act of 1872 v. Information Technology

Act, 2000:
Status of Electronic Records as Evidence, Proof and Management of
Electronic Records; Relevancy, Admissibility and Probative Value of
E-Evidence, Proving Digital Signatures, Proof of
Electronic Agreements, Proving Electronic Messages, Other
Amendments in the Indian Evidence Act by the IT Act, Amendments
to the Bankers Books Evidence Act, 1891 and Reserve Bank of India
Act, 1934.

Protection of Cyber Consumers in India:

Are Cyber Consumers Covered Under the Consumer Protection Act?
Goods and Services, Consumer Complaint, Defect in Goods and
Deficiency in Services, Restrictive and Unfair Trade Practices,
Instances of Unfair Trade Practices, Reliefs Under CPA, Beware
Consumers, Consumer Foras, Jurisdiction and Implications on cyber
Consumers in India, Applicability of CPA to Manufacturers,
Distributors, Retailers and Service Providers Based in Foreign Lands
Whose Goods are Sold or Services Provided to a Consumer in India.
Amendments in Indian IT Act 2000

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Chapter 1
The Indian Evidence Act of 1872 v. Information
Technology Act, 2000

The Indian Evidence Act of 1872 vs. Information Technology Act, 2000
As per Section 3 of Indian Evidence Act, 1872 Evidence means and includes:

i) All statements which the court permits or requires to be made before it

by witnesses, in relation to matters of fact under enquiry; such
statements are called oral evidence

ii) All documents produced for the inspection of the court such
documents are called documentary evidence.

These definitions have been amended by the IT Act, 2000:

Section Defines Substituted By the IT

Act, 2000

17 An admission ‘oral or documentary or

contained in
electronic form’

34 Speaks of entries in books Entries in the books of

of accounts regularly account, including those
kept in the course of maintained in an
business, for the words electronic form.
‘Entries in the books of
account.’

35 Speaks of relevancy of Record or an electronic

entry in public record record
made in performance
of duty, for the word
“record” in both places
where it occurs

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59 Principle that all facts Contents of documents

except the contents of or electronic records
documents, may be
proved by oral
evidence, for the words
‘contents of documents’

Even section 39 and 131 of the Indian Evidence Act has been substituted
vide the IT Act, 2000. The basic modification in these provisions is also
the introduction of electronic records alongside documents. The
following are illustrations of documents:

 Writing

 Words printed, lithographed or photographed

 A map or plan

 Inscription on a metal plate or stone

 A caricature is a document

 “Electronic Record” means data, record or data generated, image or sound

stored, received or sent in an electronic form or microfilm or computer-
generated micro fiche.
 Data means a representation of information, knowledge, facts, concepts or
instructions which are being prepared or have been prepared in a formalized
manner and are intended to be processed, and being processed or have been
processed in a computer system or computer network and may be in any
form(computer printouts, magnetic or optical storage media, punched cards,
punched tapes) or stored internally in the memory of the computer.
 Computer System means a device or collection of devices, including input
and output support devices and excluding calculators which are non-
programmable and capable of being used in conjunction with external files
which contain computer programs, electronic instructions, input data and
output data that performs logic, arithmetic, data storage and retrieval,
communication control and other functions.
 An electronic record satisfies the definition of document as it can be used as
evidence.
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 The strange characteristics of electronic records are: The copy is practically

indistinguishable from the original
 Since the original electronic record is one that is first generated and lies in the
computer memory, the computer would have to be brought to the court for
proving the original by primary evidence thereby causing immense hardships
and may be practically impossible in many cases.
 Clause(d) of Section 65 and Subsection 2 of section 63 removes the aforesaid
difficulties by permitting secondary evidence of electronic records through
printouts, floppy, CD, etc.

Subsection(2) of Section 63 Secondary evidence means and includes

Copies made from original by
mechanical processes which in
themselves ensure the accuracy of the
copy, and copies compared with such
copies.

Section 65 Cases in which secondary evidence

relating to documents may be given –

Secondary evidence may be given of

the existence, condition or
contents of a document in the
following cases :

(d) When the original is of such a nature as

not to be easily movable. “

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Section 32

Cases in which statement of relevant fact by person who is dead or cannot be found,
etc., is relevant - Statements, written or verbal, of relevant facts made by a person
who is dead, or cannot be found, or who has become incapable of giving evidence,
or whose attendance cannot be procured, without an amount of delay or expense
which under the circumstances of the case appears to the Court unreasonable, are
themselves relevant facts in the following cases :

(2) Or is made in course of business:

When the statement was made by such person in the ordinary courses of business,
and in particular when it consists of any entry or memorandum made by him in
books kept in the ordinary course of business, or in the discharge of professional
duty; or of an acknowledgement written or signed by him of receipt of money,
goods, securities of property of any kind, or of a document used in commerce written
or signed by him; or of the date of a letter or other document usually dated, written or
signed by him

Proof And Management of Electronic Records,

Relevancy,Admissibility And Probative Value of E-Evidence:

65 B. Admissibility of electronic records:

Notwithstanding anything contained in this Act, any information

contained in an electronic record which is printed on a paper,
stored, recorded or copied in optical or magnetic media
produced by a computer(hereinafter referred to as the computer
output) shall be deemed to be also a document, if the conditions
mentioned in this section are satisfied in relation to the
information and computer in question and shall be admissible in
any proceedings, without further proof or production of the
original, as evidence of any contents of the original or of any fact
stated therein of which direct evidence would be admissible",

 For the aforesaid computer outputs to be admissible as a proof of the contents

of the original electronic record or of facts stated therein without producing or
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proving the original electronic record, the following conditions stipulated in sub-
section (2) of section 65B ought to be satisfied

a) the computer output containing the information was produced by the

computer during the period over which the computer was used
regularly to store or process information for the purposes of any
activities regularly carried on over that period by the person having
lawful control over the use of the computer

b) during the said period, information of the kind contained in the

electronic record or of the kind from which the information so
contained is derived was regularly fed into the computer in the
ordinary course of the said activities;

c) throughout the material part of the said period, the computer was
operating properly or, if not, then in respect of any period in which it
was not operating properly or was out of operation during that part of
the period, was not such as to affect the electronic record or the
accuracy of its contents; and

d) d ) The information contained in the electronic record reproduces or is

derived from such information fed into the computer in the ordinary
course of the said activities.

Section 65B recognizes that there may be different computers or

combination of computers involved for which the following is
provided (3) Where over any period, the function of storing or
processing information for the purposes of any activities regularly
carried on over that period as mentioned in clause (a) of sub-
section (2) was regularly performed by computers, whether

a) by a combination of computers operating over that period, or

b) b]by different computers operating in succession over that period; or

c) by different combinations of computers operating in succession over

that period, or

d) in any other manner involving the successive operation over that

period, in whatever order, of one or more computers and one or more
combinations of computers

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All the computers used for that purpose during that period shall be treated
for the purposes of this section as constituting a single computer and
references in this section to a computer shall be construed accordingly.

 Regarding the mode of supply of information to a computer and

production of a computer output, section 65B says : "(5) For the
purposes of this section,- information shall be taken to be
supplied to a computer if it is supplied thereto in any appropriate
form and whether it is so supplied directly or (with or without
human intervention) by means of any appropriate equipment

a) whether in the course of activities carried on by any official information

is supplied with a view to its being stored or processed for the
purposes of those activities by a computer operated otherwise than in
the course of those activities, that information, if duly supplied to that
computer, shall be taken to be supplied to it in the course of those
activities;
b) a computer output shall be taken to have been produced by a
computer whether it was produced by it directly or (with or without
human intervention) by means of any appropriate equipment.
c) "In any proceedings where it is desired to give a statement in evidence
by virtue of this section, a certificate doing any of the following things,
that is to say :
d) identifying the electronic record containing the statement and
describing the manner in which it was produced
e) giving such particulars of any device involved in the production of that
electronic record as may be appropriate for the purpose of showing
that the electronic record was produced by a computer
f) dealing with any of the matters to which the conditions mentioned in
sub-section (2) relate and purporting to be signed by a person
occupying a responsible official position in relation to the operation of
the relevant device or the management of the relevant activities
(whichever is appropriate) shall be evidence of any mater stated in
the certificate; and for the purposes of this sub-section it shall be
sufficient for a matter to be stated to the best of the knowledge and
belief of the person stating it.

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Relevancy And Admissibility :

 Section 34 : Entries in books of account including those maintained in an

electronic form when relevant Entries in books of accounts, regularly kept in
the course of business, are relevant whenever they refer to a matter into
which the Court has to inquire, but such statements shall not alone be
sufficient evidence to charge any person with liability “Hence, the said entry
would be relevant as evidence in the suit, but not sufficient, without other
evidence, to prove the debt.

 "Facts in issue" means and includes any fact from which, either by itself or in
connection with other facts, the existence, non-existence, nature or extent of
any right, liability or disability, asserted or denied in any suit or proceedings,
necessarily follows: (Section 3 of the Indian Evidence Act, 1872).

 A fact is said to be relevant to another when they are so connected with each
other as provided in the Indian Evidence Act, 1872. Chapter Il of the Indian
Evidence Act, 1872 contains provisions pertaining to relevancy of facts.

Section Section Heading/Indication

about the provision
6 Relevancy of facts forming part of
same transaction

7 Facts which are the occasion,

cause or effect of facts in issue

8 Motive, preparation and previous

or subsequent conduct

9 Facts necessary to explain or

introduce relevant facts

10 Things said or done by

conspirator in reference to
common design

11 When facts not otherwise

relevant becomes relevant

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12 In suit of damages, facts tending to

enable the Court to determine amount
are relevant
13 Facts relevant when right or custom
is in question

14 Facts showing existence of state of

mind, or of body, or bodily feelings

15 Facts bearing on question whether act

was accidental or intentional

16 Existence of course of business

when relevant

17 Admission defined

18 Admission – by party to proceeding or

his agent

19 Admission by persons whose position must

be proved as against party to suit

20 Admission by persons expressly referred to

by party to suit

21 Admissions when relevant

22 When oral admissions as to

contents of documents are
relevant

23 Admission in civil cases when relevant

24 Confession caused by inducement, threat

or promise, when irrelevant in criminal
proceeding

25 Confession to police officer not to be proved

26 Confession by accused while in custody of

police not to be proved against him
27 How much of information received
from accused may be proved

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28 Confession made after removal of

impression caused by inducement,
threat or promise relevant

29 Confession otherwise relevant not to

become irrelevant because of promise
of secrecy, etc.

30 Consideration of proved confession

affecting person making it and others
jointly under trial for same offence

31 Admission not conclusive proof, but may

stop
32 Cases in which statement of relevant fact
by person who is dead or cannot be

found, etc. is relevant

33 Relevancy of certain evidence for proving,

in subsequent proceedings the truth of
facts therein stated

34 Entries in books of accounts where relevant

 Two new sections have been introduced by the IT Act, 2000 into the aforesaid
family of provisions pertaining to relevancy in Chapter II of the Indian Evidence
Act, 1872.
"22A. When oral admissions as to contents of electronic records are relevant.-
Oral admissions as to the contents of electronic records are not relevant,
unless the genuineness of the electronic record produced is in question".

 Section 47 A. Opinion as to handwriting when relevant When the court has to

form an opinion as to the digital signature of any person the opinion of the
certifying authority which is issued the digital signature certificate is a relevant
fact
 Where the author of an electronic record is also the person who may give the
certificate under section 65B, i.e. the person occupying a responsible official
position in relation to the operation of the computer or the management of the
activities regularly carried on during the period when the computer was used
regularly to store or process information for such activities, then such other
person (author) shall have to give evidence of the authorship of the electronic
record.
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 "Fact" under section 3 of the Indian Evidence Act means and includes :
-Anything, state of things, or relation of things capable of being perceived by
the senses.
- Any mental condition of which any person is conscious. In terms of the
definition of "fact", contents of a document can be classified as the contents of
a document, as a fact by itself, and The event, i.e. state of things, etc. in the
contents.

Probative Value of Electronic Evidence

 "60. Oral evidence must be direct- Oral evidence must, in all cases whatever,
be direct, that is to say

o If it refers to a fact which could be seen, it must be the evidence of a

witness who says he saw it

o If it refers to a fact which could be heard, it must be the evidence of a

witness who says he heard it;

o If it refers to a fact which could be perceived by any other sense or in

any other manner, it must be the evidence of a witness who says he
perceived it by that sense or in that manner

o If it refers to an opinion or to the grounds on which that opinion is held,

it must be the evidence of the person who holds that opinion on those
grounds.

 Provided that the opinions of experts expressed in any treatise commonly

offered for sale, and the grounds on which such opinions are held, may be
proved by the production of such treatises if the author is dead or cannot be
found or has become incapable of giving evidence or cannot be called as
witness without an amount of delay or expense which the court regards as
unreasonable

Providing Digital Signatures:

 Section 73 A. Proof as to verification of digital signature In order to ascertain

whether a digital signature is that of the person by whom it purports to have
been affixed, the Court may direct-
a) that person or the Controller or the Certifying Authority to produce the
Digital Signature Certificate.
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b) any other person to apply the public key listed in the Digital Signature
Certificate and verify the digital signature purported to have been
affixed by that person.

 When the Court has to form an opinion as to the digital signature of any
person, the opinion of the Certifying Authority which had issued the Digital
Signature Certificate, is a relevant fact. (Sec. 47A of the Indian Evidence Act,
1872 and as stated in clause 7 of the Second Schedule of the IT Act, 2000).

 Court has been empowered, in order to ascertain whether a digital signature is

that of the person by whom it purports to have been affixed, to direct

a) That person or the Controller or the Certifying Authority to produce the

Digital Signature Certificate

b) Any other person to apply the public key listed in the Digital Signature
Certificate and verify the digital signature purported to have been
affixed by that person.(Sec. 73A of the Indian Evidence Act, 1872
introduced by the IT Act, 2000

c) In matters of proving digital signatures, Digital Signature Certificate

play a significant role as seen in both the aforesaid fact situations

 Section 85 C of the Indian Evidence Act as introduced by the IT Act, 2000 says
that if the Digital Signature Certificate has been accepted by the subscriber, the
Court shall presume, unless the contrary is proved, that the information listed
in a Digital Signature Certificate is correct, except information specified as
subscriber information which has not been verified.

 A special legal status has been granted in favor of secure digital signatures.
Where a security procedure agreed to between the parties has been applied
from which it can be verified that a digital signature at the time when it was
affixed, was unique to the subscriber affixing it capable of identifying such
subscriber

 created in a manner or using a means under the exclusive control of the

subscriber and is linked to the electronic record to which it relates in such a
manner that if the electronic record was altered the digital signature would be
invalidated; then such a digital signature shall be deemed to be a secure
digital signature

Electronic agreements can be classified into:

 Electronic agreement up on which digital signatures are affixed by both the
parties.
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 Electronic agreement through e-mail messages between the parties –

a) - With digital signatures of the party sending the message;
b) Without digital signatures.

Electronic agreements can be classified into:

 Electronic agreement up on which digital signatures are affixed by both the
parties.
 Electronic agreement through e-mail messages between the parties –
a) With digital signatures of the party sending the message
b) Without digital signatures.
 The following presumption has been created for electronic agreements signed
by both the parties: 85 A. Presumption as to electronic agreements-
 The court shall presume that every electronic record purporting to be an
agreement containing the digital signatures of the parties was so concluded by
affixing the digital signature of the parties.
 The expression "shall presume" implies that whenever it is directed by the
Indian Evidence Act that the court shall presume a fact, it shall regard such
fact as proved unless and until it is disproved. (Section 4 of the Indian
Evidence Act, 1872).
 As per section 91 of the Indian Evidence Act, 1872, where the terms of a
contract, or of a grant, or of any other disposition of property, are reduced to
the form of a document, no evidence can be given in proof of the terms of such
a contract, etc. except the document itself. However, statements of other facts
in a contract may be proved by oral evidence which would be admissible.
 Whether section 91 would apply to an electronic agreement is a debatable
issue, which arises as one of the implications of the conclusion on the status of
electronic records as documentary evidence prior to and after the IT Act.
 Since section 91 has not been amended as sections 17, 34, 35, etc have
been by the the incorporation of the words "electronic records" alongside
"documents" it may be argued that the legislature does not intend to apply this
provision to electronic agreements also.
 On presenting both the aforesaid views and exposing the fallacies of the first
view, has proceeded on the premise that the second view is correct and hence
section 91 shall apply to electronic agreements

 Therefore, for proving the terms and conditions of an e-agreement, no

evidence can be given except the agreement itself.

 Digital signatures up on the e-agreement would be required to be proved in

accordance with the principles for proving digital signatures.

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Proof of Electronic Agreements & Providing electronic messages: Refer to Unit 1

Notes. Same as it is.

OTHER AMMENDMENTS IN THE INDIAN EVIDENCE ACT BY THE IT

ACT:
 The other amendments in the Indian Evidence Act by the IT Act are as follows :
90A Presumption as to electronic records five years old. - Where any
Electronic record purporting or proved to be five years old is produced from
custody which the Court in the particular case considers proper, the Court
presume that the digital signature which purports to be the digital signature of
any particular person was so affixed by him or any person authorized by him in
this behalf.

 131. Production of documents or Electronic records which another person,

having possession, could refuse to produce having possession, No one shall
be compelled to produce documents in his possession or electronic records
under his control, which any other person would be entitled to refuse to
produce if they were in his possession, or control unless such last- mentioned
person consents to their production."

8.7 AMENDMENTS TO THE BANKERS' BOOKS EVIDENCE ACT, 1891

AND RESERVE BANK OF INDIA ACT, 1934.

The IT Act has amended The Banker's Books Evidence Act to confer equal status
on electronic records as compared to paper based documents. If a "certified
copy" of printouts of bankers' books has to be given, then such printouts must
be accompanied by three certificates Section 2A has been inserted in the
Bankers Books Evidence Act,1891

2A. Conditions in the printout

 A printout of entry or a copy of printout referred to in sub- section (8) of section

2 shall be accompanied by the following, namely

a) a certificate to the effect that it is a printout of such entry or a copy of

such printout by the principal accountant or branch manager, and

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b) a certificate by a person in-charge of computer system containing a

brief description of the computer system and the particulars of the
safeguards adopted by the system to ensure that data is entered or
any other operation performed only by authorized persons

c) the safeguards adopted to prevent and detect unauthorized change

of data the safeguards available to retrieve data that is lost due to
systemic failure or any other reasons the manner in which data is
transferred from the system to removable media like floppies, discs,
tapes or other electro-magnetic data storage devices

d) the mode of verification in order to ensure that data has been

accurately transferred to such removable media;

e) the mode of identification of such data storage devices;

f) the arrangements for the storage and custody of such storage

g) the safeguards to prevent and detect any tampering with the system

h) any other factor which will vouch for the integrity and accuracy of the
system.

i) a further certificate from the person in-charge of the computer system

to the effect that to the best of his knowledge and belief, such computer
system operated properly at the material time, he was provided with all
the relevant data and the printout in question

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Chapter 2
Protection of Cyber Consumers in India

Protection of Cyber Consumers in India

 Many a time on buying something from internet there are chances that the
seller might disappear, there might be some misleading advertisements.
 Cross border ecommerce also raises issues of jurisdiction of consumer courts
in India. So, the Consumer Protection Act, 1986 can be applied over here.
 These Act seeks to protect consumer in the following areas:

 Preserves Computer Protection: Does not affect existing requirement

under consumer protection laws.

 Requirement of Customer Choice

 Protection against Confusion and Deception

 Cyber laws deal with defects in goods, deficiency in services, unfair trade
practices and restrictive trade practices, committed by manufacturers, traders
and service providers.
o Are Cyber Consumers covered under Consumer Protection Act,
1986?
 The goods are brought for consideration
 Any person who uses the goods with the approval of the buyer is a consumer
 Any person who obtains the goods for resale or commercial purposes is not a
consumer
 Person buying goods for self-employment is a consumer
 Services are hired or availed of
o Goods And Services
 "Goods means every kind of movable property other than actionable claims
and money and includes stocks and shares growing crops
grass, and things attached to or forming part of the land, which are agreed to
be severed before sale or under the contract of sale.

 "Service" has been widely defined to mean service of any description which is
made available to potential users and includes the provision of facilities in
connection with banking, financing. Insurance transport, processing, supply of
electrical or other energy, boarding or lodging or both, housing, construction,
entertainment, amusement the purveying of news or other information, but
does not include the rendering of any service free of charge or under a
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contract of personal service

 Government companies, bodies and local authorities rendering services or
selling goods are also covered under the Consumer Protection Act. All
services rendered through the internet are also covered within the ambit of this
definition
 Duties which are judicial, quasi-judicial and statutory in character which are
exclusive sovereign functions of the State are not "services” under CPA.

 The officers implementing the Registration Act and Stamp Act do not render
any service under the Consumer Protection Act as they perform
statutory duties to raise and collect State revenue which is a part of a
sovereign power of the State

Applicability OF CPA TO Manufacturers, DISTRIBUTORS, Retailers and SERVICE

PROVIDERS BASED IN FOREIGN LAND whose goods ARE SOLD OR SERVICES
PROVIDED TO A CONSUMER IN INDIA
 Foreign manufacturers and distributors may or may not be liable under the
CPA for a manufacturing defect or deficiency of service or unfair trade practice
or restrictive trade practice depending upon different fact situations where a
foreign manufacturer or distributor does not intend nor has any knowledge nor
does it authorize the sale of its products in India,
 it would not be liable under CPA merely because its products are sold in India
However, where the foreign manufacturer or distributor in conscious and
intends that its products are sold in India, then such a manufacturer or
distributor as the case may be, would be liable to the consumer under CPA
for any manufacturing defect, etc.

 All retailers and service-providers based outside India, operating through the
Internet or otherwise, are liable under CPA for defective goods or deficient
services if they sell goods or provide services to consumers in India

 Thus, foreign retailers, service providers and aforesaid category of conscious

manufacturers and distributors, would be amenable to the jurisdiction of
consumer for as in India because the cause of action in an ordinary sale of
goods or hiring of services would substantially or at least partially arise in India.
Cause of action in India in such cases would consist of any or more of the
following facts taking place in India:

 The consumer buys the goods or hires services from India.

 The goods are sold or services are provided to the consumer in India.

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 The product is delivered of services are availed of in India

 The consumer suffers the manufacturing defect or deficiency in

services in India.

 The consumer makes payment for the goods from India.

 However, it is reiterated that the mere existence of retail or other

website on the Internet without anything more such as state would not
come within the ambit of CPA or for that matter, any other law in India.
But where the website does some acts to attract Indian consumers,
CPA would jump into play.
 By exclusion, clauses in a contract, jurisdiction can be restricted to one or
more courts by excluding others. Such a clause in a contract has been upheld
by the National Commission Therefore, cyber consumers buying goods for
availing services from other countries ought to exercise caution against an
exclusion clause which would have the effect of virtually defeating the rights
of the consumers.

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