An Insight on Cyber Laws

By:
Shilpa Joshi
Manilal Kher Ambalal & Co.
Cyber Laws
v.
Law relating to Information Technology g gy
Cyber clipped from Cybernetics derived from
the Kubernetes means governor in Greek;
Cyberspace denotes virtual or digital network
th t i t b t t t h t d that exists between two computers when connected
through internet;
Cyber law: Law governing computer networks Cyber law: Law governing computer networks,
the Internet and data, software etc.
Law relating to Information Technology: Law g gy
governing storage, processing, and communication
of Information, irrespective of the medium.
Information Technology Act, 2000
[the Act]
Intention of Legislators: Functional Equivalence bet Intention of Legislators: Functional Equivalence bet
electronic record, digital signatures and written agreements,
signatures.
Objectives of the Act:
- To give Legal Recognition to electronic record & digital signature
f th ti ti for authentication;
- To facilitate electronic filing of documents with Government
Departments in order to promote E-governance; Departments in order to promote E governance;
- To give legal sanction to electronic fund transfers between banks
and financial institution (Amendment to RBI Act,1934; (
- To give legal recognition books of account by Bankers in
electronic form (Amendment to Bankers Books Evidence Act,1891;
- To deal with paper less transactions and offences by amending
IPC, and the Evidence Act, 1872.
IT Act, 2000.contd.
Applicability of the Act:
- Territorial: Whole of India including J&K;
- Offence wise: The nationality of the accused is irrelevant
if the Act or conduct constituting the offence involves a if the Act or conduct constituting the offence involves a
computer, computer system or computer network located in
India.
S bj t i A t t t l t f ll i t ti - Subject wise: Act not to apply to following transactions:
A Power of Attorney as per Powers-of-attorney Act, 1882;
A Trust as per Indian Trust Act, 1882; p
A Will as per Indian Succession Act, 1925 including any other
testamentary disposition;
Any contract for sale or conveyance of immovable property or Any contract for sale or conveyance of immovable property or
any interest in any such property or any other documents or
transactions as notified by Central Government.
The Act now applies to Negotiable Instrument Negotiable The Act now applies to Negotiable Instrument Negotiable
Instruments (Amendment and Miscellaneous Provisions) Act,
2002
Important Terms relating to Cyber Laws
Internet v. WWW:
- Internet is a massive network
i f t t f t k infrastructure of networks,
connecting millions of computers
together globally, in which a
computer can communicate with
others as long as they are connected
to the Internet.
- WWW is a system of a web browser
/ an application / service that runs
h i O i b on the internet; One can view web
pages through WWW typing URL of a
certain web page, that may contain
text, images, videos, and other
multimedia.
Imp. Terms Contd.
IP Address: Each computer communicates IP Address: Each computer communicates
with the others by employing a machine
language convention known as Internet
Protocols or IP Address which is a string of Protocols or IP Address, which is a string of
numbers such as 240.122.19.80.
Domain Name: An easy to remember word for y
enabling users to access your website / pages;
- Primary Domain Name: Google, Yahoo etc.
- Secondary Domain Names: .com; .org; .net
(generic top level domain names); .au; .in;. .us
(country code top level domain names) (country code top level domain names)
Electronic Data Interchange: A standard
format for exchanging business data. E.g. g g g
Compaq;
Types of EDI: LAN; WAN & Intranet.
Important Definitions
Electronic Record: Data, record or data generated, image or sound
stored, received or sent in an electronic form or micro films or computer
generated micro fiche generated micro fiche .
Digital Signature: Authentication of any electronic record by a
subscriber by means of an electronic method or procedure laid down under
the Act;
Electronic Signature: Any letters, characters, or symbols manifested by
electronic means, executed or adopted by a party to a transaction with an electronic means, executed or adopted by a party to a transaction with an
intent to authenticate his writing.
Originator, Addressee and Intermediary : When a person using his ID
d il t th h i id t b th O i i t f th sends an email to another, he is said to be the Originator of the message.
The Addressee is that person who is intended by the originator to receive the
electronic record. Intermediary is anyone any person who on behalf of
another person receives stores or transmits that message or provides any another person receives stores or transmits that message or provides any
service with respect to that message, which includes Network Service
Providers;
Internet Service Provider: A company that provides username,
password, access phone number equipped with a modem to log on to
Internet, browse the Web for a monthly fee.
Authorities under the Act
Controller: Power to issue licenses to the Certifying Controller: Power to issue licenses to the Certifying
Authorities;
Certifying Authorities: Authorities / Companies having
obtained license from Controller, issue Digital Signature
Certificate, which contains consists of a public key, certificate
information about user name, user ID and the digital , g
signature of certifying authority.
The Certifying Authority is an entity that certifies that a
person is a holder of a valid key pair and that the authority person is a holder of a valid key pair and that the authority
has authenticated his identity.
Cyber Regulations Appellate Tribunal: To entertain appeals
from decisions of any of the authorities within 45 days from
the date of decision;
Cyber Regulations Advisory Committee: To advise the Cyber Regulations Advisory Committee: To advise the
Central Government & Controller for enacting of rules and
regulations under the Act.
E Commerce E-Commerce
Electronic Commerce
literally means ability to
conduct business
electronically or over Internet electronically or over Internet.
Types:
B-2-B Commerce
E Contracts bet een t o E-Contracts between two
companies or individuals
using electronic records,
where internet is used as tool
of facilitation;
B-2-C Commerce
Ebay.com; Sites having online
auction; Variety of Contracts
used in this viz. Software
Li A / Cli k License Agreements / Click
Wrap Contracts; Shrink Wrap
Contracts.
E-contracts E contracts
Attribution of E-record Originator or person authorized by
Originator or an Information System programmed by
Originator to operate automatically.
Time and Place of Dispatch and Receipt of E-record;
In absence of an agreement to the contrary, the dispatch
occurs when the message enters a computer system outside occurs when the message enters a computer system outside
the control of Originator;
In absence of an agreement to the contrary, if no information
system has been designated by the Addressee, receipt occurs
h Add t i th hil if i f ti when Addressee retrieves the message; while if information
system has been designated, receipt occurs when the
message enters the information system.
Jurisdiction and Conflict of Laws: A grey area left to be
addressed by the Act. Developing law indicates three places
of jurisdictions viz. Place where website is located; Place
where Internet service provider is located; Place where the where Internet service provider is located; Place where the
user is located or by all of them.
IPR and Cyber Laws
Trademarks: Trademarks:
A. Cyber squatting (Domain Name disputes): Any person
registers domain name similar to any existing trademark
and thereafter tries to exploit the owner of the said
trademark for buying such domain name for high prices.
D i N i i T d k Domain Name vis--vis Trademark
Domain Name
A i d th h
Trademark
- Acquired through a
contract with registrar
- Can only be a letter or
-Acquired through a
statutory registration
process
- Can only be a letter or
numerical used to
identify the address
process
- Can be figurative also
- Global without any
geographical limits
- Territorial protection
and enforcement
- Exists only in virtual
world of cyberspace
Trademark
- Acquired through a
t t t i t ti statutory registration
process
- Can be figurative also Can be figurative also.
- Territorial protection and
enforcement
- Exists in physical world
but in an intangible form
of goodwill of goodwill
Contd Contd
Domain Name
- Registration does not
f l l h
Trademark
- Registration confers
confer any legal rights
beyond contractual
rights with weak
statutory protection
capable of enforcement
in court of law rights with weak
enforcement
in court of law
Indian Judiciary on Domain Name vis--vis
Trademark Trademark
The functional similarity between trademark and domain
name was enshrined by Indian Supreme Court in first of
its kind case of Satyam Infoway Ltd v Sifynet Solutions its kind case of Satyam Infoway Ltd. v. Sifynet Solutions
Pvt. Ltd.
The defendant had registered siffy com as opposed to The defendant had registered siffy.com as opposed to
plaintiffs sify.com with a defense that it stood for initials
of their promoters. The defendant argued that domain
name is merely an address on internet and registration
with ICANN does not confer any legal right on owner.
d h d h ld h Supreme Court rejected the contentions and held that
domain names have all the characters of a trademark and
provide users a chance to identify and distinguish goods provide users a chance to identify and distinguish goods
and services.
Contd..
Delhi High Court in one of the landmark judgments on
the topic i.e. Yahoo Inc. v. Akash Arora & Anr.
The defendant had started website with domain name
Yahooindia.com and had in fact copies all the
information from the plaintiffs website Yahoo com information from the plaintiff s website Yahoo.com .
The defendant asserted that Yahoo is a common word
and not an invented one.
The court held that domain name performs functions of
trademark and is an instrumentality of goodwill. Court
l d l f ff d h ld h h applied principle of passing off and upheld that Yahoo
had acquired secondary meaning by its use.
Contd..
In another landmark judgment of Delhi High Court
in the case of Eicher Ltd v Weblink India the in the case of Eicher Ltd. v. Weblink India , the
defendant was in the business of creating domain
names and it registered domain name
Eichertractors.
Delhi High Court went a step ahead and held that
domain name is equivalent to trademark and is
entitled to equal protection as that of trademark.
In the case of Rediff Communication Ltd. v.
C b b th & A th B b Hi h C t h ld Cyberbooth & Anr., the Bombay High Court upheld
the value and importance of a domain name as an
corporate asset. p
Types of Disputes arising out of yp p g
Domain Names
There are different conflicts that occur over domain
names and the main ones are as follows:
1)Registering a domain names identical or deceptively
similar to a trademark (cyber squatting) similar to a trademark (cyber squatting)
2)Registering a domain name confusingly similar to a 2)Registering a domain name confusingly similar to a
Trademark (typo squatting)
3)Registering a domain name to express dissatisfaction
with a trademark or a corporation (cyber-smearing)
Typo Squatting Typo Squatting
An act of registering a domain name similar to that of
another domain name is known as Typo squatting, which
is nothing but a species of Cyber squatting.
Typo squatting is usually aimed at causing deception yp q g y g p
among internet surfers and generate internet revenues
by causing wrongful hits.
The case of Yahooindia was a classic case of typo
squatting where Yahoo proved its proprietary rights by
evidencing customer base, number of hits and goodwill it
had earned in the domain name.
Cyber smearing Cyber smearing
The act of Cyber smearing y g
means registration of
domain name under a
suck-site, which is a
b i ll i basically a protest site
where the domain name
appears in the form of
t d k k dd trademark sucks or adds
similar distinguishing
words to the trade mark
and is purportedly used and is purportedly used
to convey dissatisfaction
with the activities of the
trade marks holder trade marks holder.
Here are some of the
examples: examples:
20
Dispute Resolution Mechanisms
Domain Name disputes can be resolved by Domain Name disputes can be resolved by
following mechanisms:
Local Courts (applying traditional trademark laws)
Uniform Dispute Resolution Policy designed by
ICANN and WIPO Arbitration and Mediation Centre
National domain name registry policies for their
country code Top level domain names country code Top level domain names
IPR and Cyber Laws contd IPR and Cyber Lawscontd
Meta-tagging: Meta Tags are nothing but keywords Meta tagging: Meta Tags are nothing but keywords
within a website providing description as such, that can
be searched and that are visible only to the search
i engine.
Copyrights: Copyrights:
Is website copyrightable? Is website copyrightable?
Linking and Framing
M i l k i t t Musical works over internet;
Thank You !!!