Cybertort

Dr.
Tabrez Ahmad
Associate Professor of Law
Website: www.site.technolexindia.com
Blog: http://technolex.blogspot.com
Email: tabrezahmad7@gmail.com
Slides can also be downloaded from the following link:
www.slideshare.net/tabrezahmad
Agenda
 1. Digital Revolution and Its Effect on Management of
Rights and Obligations
 2. Rights and Duties in Cyberspace
 3. Cyber trespass
 4. Privacy in Cyberspace
 5. Cyber libel
 6. Cyber stalking
 7. Spamming
 8. Cybersquating
 9. Data Protection and Identity theft
 10. Protection of Content on Websites
 11. Vicarious Liability of ISPs
 12. Jurisdiction
 13. Cases
 14. Legislations
 15. Future course of action
 Dr. Tabrez Ahmad, Blog:
http://technolex.blogspot.com,
Friday, November 27, 2009 www.site.technolexindia.com 2
Three Outstanding Features Which Make
Digital Revolution Unique are the resultant
1. Cyberspace
2. Knowledge Economy
3. Speed with which it has transformed industrial
economy into a knowledge Economy
Dr. Tabrez Ahmad, Blog:

http://technolex.blogspot.com, 3
Vanishing Borders In Cyberspace
• Sovereignty and exercise of Jurisdiction which are
attributes of statehood are linked to territorial nexus
• In Cyberspace territorial boundaries are meaningless
• Internet address has no relation to the physical
location of the computer or its user
• Law implies the application of coercive force but this
is not feasible over individuals not within the
territory

Anonymity And Pseudo-anonymity
• Cyberspace permits anonymity and pseudo
anonymity
• Users can mask their real flesh and blood
identities and assume digital avtars
• anonymous remailers facilitate sending messages
without revealing their identity or origin

Challenge Of Cyberspace
Cyberspace calls into question many traditional
legal conceptions like
• Ownership and Fair Use
• Balance of Freedom of expression-Reputation-
Privacy
• Balance of Rights-Liability of Netizens and ISP
• Property etc
Influence Of US Constitutional And
Legal Doctrines On Growth Of
Cybertort
Internet is a product of US Technology, so issues
relating to Internet are heavily flavoured by US
Constitutional and Legal doctrines

Two Schools Of Thought On
Governance Of Cyberspace
Regulation skeptics Governments should not
regulate Cyberspace
Reasons
• Laws involved on geographical basis have no
application to cyberspace which is borderless
• Cyberspace transactions occur simultaneously in
all jurisdictions assumption of jurisdiction by
multiple states will lead to jurisdictional mayhem
• Architecture of Cyberspace precludes previous
notice of applicable laws
Relationship Between Law And
Social Change
“The controversy between those who believe that law
should essentially follow and not lead and it should do
so clearly formulated social sentiment and those who
believe that law should be determined agent in the
creation of new social norms is one of the recurring
themes in the history of legal thought”
Professor Wolfgang Friedmann – Law in the

Changing Society
Digital Revolution Giving Way To
Cybertort
 The notion behind cybertort is that the Internet
has created a connectedness that was not
present previously
 Few areas of tort are most impacted by the
Internet

Dis-balance of Right Duty
Co-relation due to Internet
A Right Duty Co-relation B

2. Rights and Duties in
Cyberspace
These include the right to:
be free from any harm to system.
enjoy a good reputation
conduct business without unwarranted interference

2. Rights and Duties in
Cyberspace
The law imposes a duty on all of us
to respect the rights of others.
Tort law governs this interplay
between rights and duties.

3. Cyber trespass
 Trespass to Property
 Cybersquating
 Software piracy
 Infringement to database
 Infringement of the Contents on website
 Linking- Surface and Deep
 File sharing
 Napster Case
 Gnutella
 Kazaa
 Grokster case
Dr. Tabrez Ahmad, Blog: http://technolex.blogspot.com,

3. Cyber Trespass Cont…
Trespass to person
 Breach of Cyber Privacy
 Identity Theft
 Phishing
 Cyberstalking
 Spamming
 Hacking-Magic Lantern Technique
 Cyber libel

4. Privacy in Cyberspace
 Privacy is deeply rooted in history and religion
 Several religious scriptures, texts and classical right-
ups recognize the importance of privacy
 There is a recognition of privacy in the Quran and the
sayings of Prophet Mohammed
( Surah An-Noor 24:27, 24:28, Surah Al-Hujraat 49:12)
 The Bible has numerous references to privacy and
 The Jewish law has long recognized the concept of
‘freedom from being watched’
4. Privacy in Cyberspace cont…
 The term ‘privacy’ has been described as “the rightful
claim of the individual to determine the extent to
which he wishes to share of himself with others. It
means his right to withdraw or to participate as he sees
fit. It also means the individual’s right to control
dissemination of information about him.”

4.Privacy in Cyberspace cont…
 Fifty years ago, George Orwell, the English writer whose
fears for the loss of individual liberty dominated his novels,
imagined a totalitarian state where advanced
technologies would be used to monitor the people in all
their endeavors
“Big brothers would be watching us and the privacy would
be a thing of the past”.
Orwell’s fears stands somewhat true in this era of
Information and Communication Revolution (ICR)

 The new technologies have enhanced the possibilities
of invasion into the privacy of individual and provided
new tools in the hands of eavesdroppers.
 Individual privacy is at greater stake than ever before.

 International Convention
 UDHR- Art. 12
 International Convention on Civil and Political rights
(ICCPR) -Art. 17
 UN Convention on Migrant Workers (UNCMW)-Art 14
 UN convention on Protection of the Child (UNCPC)-
Art- 16
 European convention for the protection of Human
Rights and Fundamental Freedoms 1950- Art. 8
 American Convention on Human Rights- Art. 11
Right to Privacy under Indian Constitution
 Art.21
 Art. 19 (2)
 The court recognizes two aspects of privacy :
 1. the tortuous law of privacy which affords an action for
damages resulting from an unlawful invasion of privacy,
and
 2. the constitutional right to be let alone implicit in the
right to life and liberty under Art. 21

Right to privacy under tort law
 In 1890, American Lawyers Samuel Warren and Louis
Brandeis wrote a seminal piece on the right to privacy as “
the right to be left alone”
 Today we find four distinct common law torts that are
available as remedy for breach of privacy
These are:
 Intrusion upon seclusion
 Appropriation of name or likeness
 Publicity given to private life
 Publicly placingDr.aTabrez
person in false light
Ahmad, Blog:
Information Technology Act 2000
 Sec. 43-47 Civil Liability

 Sec. 65-78 Criminal Liability
 Sec. 79 Vicarious Liability of ISPs

5. Cyber Libel
Reputation-damaging statements or publications can be

made anywhere in cyberspace, potentially unlimited
audience:
 • Websites
 • Blogs
 • Message Boards
 • Chat Rooms
 • Email
 • Online Journals
 • Use of Hyperlinks
5. Cyber Libel Cont…
 Online Defamation: An online message attacking
another person or entity in harsh, often personal, and
possibly defamatory, terms. Online defamation is difficult
to combat because:
 the Communications Decency Act of 1996 absolves
Internet service providers (“ISPs”) from liability for
disseminating defamatory material
 the Internet affords a high degree of anonymity to the
person who posted the defamatory message.

 Defamation--can be oral or written

 By and large cyberspace defamation is written so libel
standards apply
 Defamation requires a showing that
 The defendant made or repeated false statements
 that were witnessed by third parties, and
 Harmed the reputation of the plaintiff
 If the media is the defendant and the pl. is a public

figure, the pl. must show that the def. knew or should
have known that the statements were false
 The crucial issue in cyberspace defamation cases is
how to treat ISPs
 If the ISP is treated as a publisher, then they have
tremendous liability exposure
 If the ISP is treated as a bookstore, then they are
basically not liable for the contents of those using
their service unless they contribute to the content of
the message
 Bookstores are treated as distributors of the
material and are not liable unless they knew or
should have known that the material they transmit
is defamatory
 In the early cases, liability of the ISP was based on whether
the ISP supervised the content of the users of their service
 The unfortunate result was that ISPs that tried to clean
up content of users in terms of obscenity, were liable for
defamatory content of other users
 Congress did not like this outcome so they passed the
Communications Decency Act (CDA) of 1996
 Section 230(C) of the CDA provides that no
 “… provider or user of an interactive computer service

shall be treated as the publisher or speaker of any
information provided by another information content
provider.”
6. Cyber stalking

 Threatening Communications/
CyberHarrassment/Cyberstalking

7. Spamming
 Spam: Bulk, unsolicited e-mail or newsgroup postings –
usually an advertisement for the “spammer’s” product or
service sent to all users on an e-mailing list or
newsgroup.
 Some states regulate or prohibit the use of spam,
giving recipients of unwanted spam, and even ISPs,
legal bases for blocking spam and for recovering
against spammers.
Who should be liable for “spam” and computer viruses
that cause injury?
 Federal CAN-SPAM Act 2003.

What is Phishing?
--- listening to music by the band called Phish
--- a hobby, sport or recreation involving the ocean, rivers or
streams…nope
“Fishing for personal information”

 Use “spoofed” e-mails and fraudulent
websites designed to fool recipients into
divulging personal financial data such as
credit card numbers, account usernames and
passwords, social security numbers, etc.
 Anti-Phishing Working Group
http://www.antiphishing.org/

Prevent Phishing
from Fraud Watch International
 Never click on hyperlinks  Keep computer clean from

 Use Anti-SPAM filters Spyware
 Use Anti-Virus Software  Know Fraudulent activity on
 Use personal firewalls
the Internet
 Check your credit report
 Keep all software updated
immediately for free!
 Always look for https and
 If unsure, ask!
sites that ask for “personal
information”

What is ID Theft?
“Identity theft is a crime in which an imposter obtains key

pieces of information such as Social Security and driver's
license numbers and uses it for their own personal gain.”
ID Theft Resource Center

http://www.idtheftcenter.org/index.shtml

What is Spyware?
Any technology that aids in gathering information
about a person or organization without their
knowledge. On the Internet (where it is
sometimes called a spybot or tracking software),
spyware is programming that is put in someone's
computer to secretly gather information about the
user and relay it to advertisers or other interested
parties.

What is Adware?
Any software application in which advertising
banners are displayed while the program is
running. The authors of these applications
include additional code that delivers the ads,
which can be viewed through pop-up windows or
through a bar that appears on a computer
screen.

CYBERSQUATTING: Anti Cybersquatting Consumer
Protection Act (ACPA) Under 15 USC 1125(d)(1)(A):
 The registration of a domain name with bad faith
intent to profit from the mark of another.
 Taking another’s trademark as your secondary level
domain name constitutes the act of Cybersquatting.
 This is as much an act of piracy as copyright or patent
infringement.

Cybersquatting Elements:
 Registers, traffics in, or uses a domain name
of
 a mark that is distinctive at the time of registration of
the domain name
 that is identical or confusingly similar to that mark or
 of a famous mark that is famous at the time of
registration of the domain name,
 is identical or confusingly similar to or dilutive of that
mark.
 With the bad faith intent to profit from that mark
Cybersquatting Bad Faith Intent to Profit - Factors:
 The trademark & intellectual property rights of the
parties
 The extent the Domain Name consists of another’s
mark or name
 Prior uses if any of the Domain Name in offering
goods/services
 Any “fair use” factors like non-profit
 An intent to divert traffic (users) to another site than
the trademark owner’s.
 Intent to Dilute
 Offering to sell the Domain Name.
What is Identity Theft?

9. Data Protection and Identity
Theft
Conversion of Data or Information
 Test: Is there an unauthorized or wrongful exercise of

dominion and control over personal property?
 • Thyroff v. Nationwide Mut. Ins. Co., 8 N.Y.3d 283 (N.Y.
2007)–common law conversion applies to electronic
data

Identity Theft
Identity theft is a crime of stealing key pieces of
someone’s identifying information, such as:
 name,
 address,
 Social Security number,
 birth date, and
 mother’s maiden name

If You’re a Victim...
1. Contact the fraud departments of the three
major credit bureaus.
2. Contact creditors or financial institutions for

any accounts that have been tampered with.
3. File a report with local police or police where

the theft took place.

10. Protection of content on
Websites
File sharing
 Napster Case
 Gnutella
 Kazaa
 Grokster

11. Liability of Internet Service
Providers (ISPs)
 Should an Internet Service Provider (ISP) be liable

for the actions of its subscriber?

13. Imp. Legislations
 UNCITRAL Model Law of E-Commerce
 World summit on Information Society( WSIS)
 United Nations Commission on Trade and
Development( UNCTAD)
 Council of Europe (European Convention on Cyber
Crime 2001)
 World Trade Organisation ( WTO), TRIPS etc.
 World Intellectual Property Organisation, WCT,
WPPT
Indian Legislations
 Information Technology Act 2000., came into force on
17th October 2000.
 Information Technology (Amendment Act 2008) came
into force on 27th October 2009.

IT Act 2008 Amendment Act
 Some of the major modifications are:
 1. A special liability has been imposed on call centers,
BPOs, banks and others who hold or handle sensitive
personal data. If they are negligent in "implementing
and maintaining reasonable security practices and
procedures", they will be liable to pay compensation. It
may be recalled that India's first major BPO related
scam was the multi crore MphasiS-Citibank funds
siphoning case in 2005. Under the new law, in such
cases, the BPOs and call centers could also be made
liable if they have not implemented proper security
measures.
 2. Compensation on cyber crimes like spreading
viruses, copying data, unauthorised access, denial of
service etc is not restricted to Rs 1 crore anymore. The
Adjudicating Officers will have jurisdiction for cases
where the claim is upto Rs. 5 crore. Above that the case
will need to be filed before the civil courts.
 3. The offence of cyber terrorism has been specially
included in the law. A cyber terrorist can be punished
with life imprisonment.
 4. Sending threatening emails and sms are punishable
with jail upto 3 years.
 5. Publishing sexually explicit acts in the electronic form is
punishable with jail upto 3 years. This would apply to cases
like the Delhi MMS scandal where a video of a young couple
having sex was spread through cell phones around the
country.
 6. Voyeurism is now specifically covered. Acts like hiding
cameras in changing rooms, hotel rooms etc is punishable
with jail upto 3 years. This would apply to cases like the
infamous Pune spycam incident where a 58-year old man
was arrested for installing spy cameras in his house to
'snoop' on his young lady tenants.
 7. Cyber crime cases can now be investigated
by Inspector rank police officers. Earlier such offences could
not be investigated by an officer below the rank of a deputy
superintendent of police.
 Collecting, browsing, downloading etc of child
pornography is punishable with jail upto 5 years for
the first conviction. For a subsequent conviction, the
jail term can extend to 7 years. A fine of upto Rs 10 lakh
can also be levied.
 9. The punishment for spreading obscene material by
email, websites, sms has been reduced from 5 years jail
to 3 years jail. This covers acts like sending 'dirty' jokes
and pictures by email or sms.
 10. Refusing to hand over passwords to an authorized
official could land a person in prison for upto 7 years.
 11. Hacking into a Government computer or
website, or even trying to do so in punishable with
imprisonment upto 10 years.
 12. Rules pertaining to section 52 (Salary, Allowances
and Other Terms and Conditions of Service of
Chairperson and Members),
 13. Rules pertaining to section 69 (Procedure and
Safeguards for Interception, Monitoring and
Decryption of Information),

 14. Rules pertaining to section 69A (Procedure and
Safeguards for Blocking for Access of Information by
Public),
 15. Rules pertaining to section 69B (Procedure and
safeguard for Monitoring and Collecting Traffic Data or
Information) and
 16. Notification under section 70B for appointment of
the Indian Computer Emergency Response Team.
 17. Rules Rules pertaining to section 54 (Procedure for
Investigation of Misbehaviour or Incapacity of
Chairperson and Members),
14. Imp. Cases
 Yahoo Inc. v. Akash Arora
 Styam infoway v. Siffy
 Napster Case USA
 Grokster case USA

Cyber trespass
Cases
 Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (Cal.
App. 1996) (hacking)
 • Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003) (email)
 • CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.
Supp. 1015 (S.D. Oh. 1997) (commercial email)
 • ebay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058
(N.D. Cal. 2000) (“

15. Future course of action
• LEGAL PROBLEMS OF THE NEW

TECHNOLOGY
• APPLICATION OF JURISPRUDENTIAL
CONCEPTIONS TO CYBERSPACE.
• Forensic Computing- Forensic Evidence


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Dr.

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Professor Wolfgang Friedmann – Law in the

Dr. Tabrez Ahmad, Blog:

A Right Duty Co-relation B

Dr. Tabrez Ahmad, Blog:

be free from any harm to system.

enjoy a good reputation

conduct business without unwarranted interference

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog: http://technolex.blogspot.com,

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Information Technology Act 2000

 Sec. 43-47 Civil Liability

Dr. Tabrez Ahmad, Blog:

Reputation-damaging statements or publications can be

Dr. Tabrez Ahmad, Blog:

 Defamation--can be oral or written

 that were witnessed by third parties, and

 Harmed the reputation of the plaintiff

 If the media is the defendant and the pl. is a public

 “… provider or user of an interactive computer service

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

“Fishing for personal information”

Dr. Tabrez Ahmad, Blog:

 Never click on hyperlinks  Keep computer clean from

Dr. Tabrez Ahmad, Blog:

“Identity theft is a crime in which an imposter obtains key

ID Theft Resource Center

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Conversion of Data or Information

 Test: Is there an unauthorized or wrongful exercise of

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

2. Contact creditors or financial institutions for

3. File a report with local police or police where

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

 Should an Internet Service Provider (ISP) be liable

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

Dr. Tabrez Ahmad, Blog:

• LEGAL PROBLEMS OF THE NEW

• Forensic Computing- Forensic Evidence

Dr. Tabrez Ahmad, Blog:

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