aiding or abetting in the commission of cybercrime convention

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Aiding or abetting in the commission of cybercrime convention betting predictions csgo lounge

Aiding or abetting in the commission of cybercrime convention

As can be seen, both attempts as well as abetment of criminal offences under the IT Act have also been criminalised. Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. The liability of a company or other body corporate has been laid out in the IT Act in a manner similar to the Budapest Convention.

Each Party shall consider restricting such a reservation to enable the broadest application of the measure referred to in Article Each Party shall consider restricting such a reservation to enable the broadest application of the measures referred to in Articles 20 and This is a provision of a general nature that need not have any equivalence in domestic law. This again is a provision of a general nature which need not have a corresponding clause in the domestic law. Further the right to life guaranteed under Article 21 of the Constitution takes within its fold a number of human rights such as the right to privacy.

Freedom of expression, right to fair trial, freedom of assembly, right against arbitrary arrest and detention are all fundamental rights guaranteed under the Constitution of India, Thus, there does exist a statutory mechanism for the enforcement of human rights [9] under Indian law. It must be noted that the definition of human rights also incorporates rights embodied in International Covenants and are enforceable by Courts in India.

A Party may provide for such an order to be subsequently renewed. Amended vide ITAA The information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing staling clearly the purpose of seeking such information or any such assistance. It must be noted that Article 16 and Article 17 refer only to data preservation and not data retention.

The Convention uses the term "order or similarly obtain", which is intended to allow the use of other legal methods of achieving preservation than merely by means of a judicial or administrative order or directive e. In some States, preservation orders do not exist in the procedural law, and data can only be preserved and obtained through search and seizure or production order. Flexibility was therefore intended by the use of the phrase "or otherwise obtain" to permit the implementation of this article by the use of these means.

While Indian law does not have a specific provision for issuing an order for preservation of data, the provisions of section 29 as well as sections 99 to of the Code of Criminal Procedure, may be utilized to achieve the result intended by Articles 16 and However, in the absence of a power of preservation in the main statute IT Act it remains to be seen whether such an order would be enforced if challenged in a court of law.

While the Cyber Appellate Tribunal and the Controller of Certifying Authorities both have the power to call for information under the IT Act, these powers can be exercised only for limited purposes since the jurisdiction of both authorities is limited to the procedural provisions of the IT Act and they do not have the jurisdiction to investigate penal provisions.

In practice, the penal provisions of the IT Act are investigated by the regular law enforcement apparatus of India, which use statutory provisions for production orders applicable in the offline world to computer systems as well. It is a very common practice amongst law enforcement authorities to issue orders under the Code of Criminal Procedure, section 91 or the relevant provisions of the Income Tax Act, to compel production of information contained in a computer system.

These measures shall include the power to:. Any computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, in respect of which any provision of this Act, rules, orders or regulations made thereunder has been or is being contravened, shall be liable to confiscation:. Provided that where it is established to the satisfaction of the court adjudicating the confiscation that the person in whose possession, power or control of any such computer, computer system, floppies, compact disks, tape drives or any other accessories relating thereto is found is not responsible for the contravention of the provisions of this Act, rules, orders or regulations made there under, the court may, instead of making an order for confiscation of such computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, make such other order authorized by this Act against the person contravening of the provisions of this Act, rules, orders or regulations made there under as it may think fit.

While Article 19 provides for the power to search and seize computer systems for the investigation into criminal offences of any type of kind, section 76 of the IT Act is limited only to contraventions of the provisions of the Act, rules, orders or regulations made thereunder. However, this does not mean that Indian law enforcement authorities do not have the power to search and seize a computer system for crimes other than those contained in the IT Act; just as in the case of Article 18, the authorities in India are free to use the provisions contained in the Criminal Procedure Code and other sectoral legislations which allow for seizure of property to seize computer systems when investigating criminal offences.

Explanation: For the purposes of this section, i "Computer Contaminant" shall have the meaning assigned to it in section Section 69B in the IT Act enables the government to authorise the monitoring and collection of traffic data through any computer system. Under the Convention, orders for collection and recording of traffic data can be given for the purposes mentioned in Articles 14 and On the other hand, as per the Information Technology Procedure and safeguard for Monitoring and Collecting Traffic Data or Information Rules, , an order for monitoring may be issued for any of the following purposes relating to cyber security:.

As can be seen from the above, the reasons for which an order for monitoring traffic data can be issued are extremely wide, this is in stark contrast to the reasons for which an order for interception of content data may be issued under section The Rules also provide that the intermediary shall not disclose the existence of a monitoring order to any third party and shall take all steps necessary to ensure extreme secrecy in the matter of monitoring of traffic data.

There has been a lot of academic research and debate around the exercise of powers under section 69 of the IT Act, but the current piece is not the place for a standalone critique of section In that background, it needs to be pointed out that two important issues mentioned in Article 20 of the Convention are not specifically mentioned in section 69B, viz. The Convention provides for extra territorial jurisdiction only for crimes committed outside the State by nationals of that State.

However, the IT Act applies even to offences under the Act committed by foreign nationals outside India, as long as the act involves a computer system or computer network located in India. Unlike para 3 of Article 22 of the Convention, the IT Act does not touch upon the issue of extradition. Cases involving extradition would therefore be dealt with by the general law of the land in respect of extradition requests contained in the Extradition Act, The Convention requires that in cases where the state refuses to extradite an alleged offender, it should establish jurisdiction over the offences referred to in Article 21 1 so that it can proceed against that offender itself.

Chapter III of the Convention deals specifically with international cooperation between the signatory parties. Such co-operation is to be carried out both "in accordance with the provisions of this Chapter" and "through application of relevant international agreements on international cooperation in criminal matters, arrangements agreed to on the basis of uniform or reciprocal legislation, and domestic laws.

The Convention also provides for international cooperation on certain issues which may not have been specifically provided for in mutual assistance treaties entered into between the parties and need to be spelt out due to the unique challenges posed by cyber crimes, such as expedited preservation of stored computer data Article 29 and expedited disclosure of preserved traffic data Article Contentious issues such as access to stored computer data, real time collection of traffic data and interception of content data have been specifically left by the Convention to be dealt with as per existing international instruments or arrangements between the parties.

The broad language and wide terminology used IT Act seems to cover a number of the cyber crimes mentioned in the Budapest Convention, even though India has not signed and ratified the same. Penal provisions such as illegal access Article 2 , data interference Article 4 , system interference Article 5 , offence related to child pornography Article 9 , attempt and aiding or abetting Article 11 , corporate liability Article 12 are substantially covered and reflected in the IT Act in a manner very similar to the requirements of the Convention.

Similarly procedural provisions such as search and seizure of stored computer data Article 19 , real-time collection of traffic data Article 20 , interception of content data Article 21 and Jurisdiction Article 22 are also substantially reflected in the IT Act. However certain penal provisions mentioned in the Convention such as computer related forgery Article 7 , computer related fraud Article 8 are not provided for specifically in the IT Act but such offences are covered when provisions of the Indian Penal Code, are read in conjugation with provisions of the IT Act.

Similarly procedural provisions such as expedited preservation of stored computer data Article 16 and production order Article 18 are not specifically provided for in the IT Act but are covered under Indian law through the provisions of the Code of Criminal Procedure, Apart from the above two categories there are certain provisions such as misuse of devices Article 6 and Illegal interception Article 3 which may not be specifically covered at all under Indian law, but may conceivably be said to be covered through an expansive reading of provisions of the Indian Penal Code and the IT Act.

It may therefore be said that even though India has not signed or ratified the Budapest Convention, the legal regime in India is substantially in compliance with the provisions and requirements contained therein. In an increasingly interconnected world where more and more information of individuals is finding its way to the cloud or other networked infrastructure the international community is making great efforts to generate norms for increased international cooperation to combat cybercrime and cyber terrorism.

While the Convention is one such multilateral effort, States are also proposing to use bilateral treaties to enable them to better fight cybercrime, the United States CLOUD Act, being one such effort. In the backdrop of these novel efforts the role to be played by older instruments such as the Convention on Cybercrime as well as by important States such as India is extremely crucial. Location on Google Map. You may donate online via Instamojo. Newsletter: Subscribe. Youtube: Centre for Internet and Society.

We invite researchers, practitioners, artists, and theoreticians, both organisationally and as individuals, to engage with us on topics related internet and society, and improve our collective understanding of this field. To discuss such possibilities, please write to Amber Sinha, Executive Director, at amber[at]cis-india[dot]org or Sumandro Chattapadhyay, Director, at sumandro[at]cis-india[dot]org, with an indication of the form and the content of the collaboration you might be interested in.

The Centre for Internet and Society CIS is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with disabilities, access to knowledge, intellectual property rights, openness including open data, free and open source software, open standards, open access, open educational resources, and open video , internet governance, telecommunication reform, digital privacy, and cyber-security.

The research at CIS seeks to understand the reconfiguration of social processes and structures through the internet and digital media technologies, and vice versa. Through its diverse initiatives, CIS explores, intervenes in, and advances contemporary discourse and regulatory practices around internet, technology, and society in India, and elsewhere.

Budapest Convention and the Information Technology Act. Convention on Cybercrime Information Technology Act, Article 3 — Illegal Interception Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the interception without right, made by technical means, of non-public transmissions of computer data to, from or within a computer system, including electromagnetic emissions from a computer system carrying such computer data.

NA Although the Information Technology Act, does not specifically criminalise the interception of communications by a private person. Section 43 If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network - d damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network; i destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means; j Steals, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage, he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.

NA Just as in the case of forgery, there is no specific provision in the IT Act whereby online fraud would be considered as a crime, however specific acts such as charging services availed of by one person to another section 43 h , identity theft section 66C , cheating by impersonation section 66D have been listed as criminal offences.

Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, or the Patents Act, The use of the term "pursuant to the obligations it has undertaken" in both paragraphs makes it clear that a Contracting Party to the Convention is not bound to apply agreements cited TRIPS, WIPO, etc.

Explanation - For the purposes of this section i "Company" means any Body Corporate and includes a Firm or other Association of individuals; and ii "Director", in relation to a firm, means a partner in the firm.

NA This is a provision of a general nature that need not have any equivalence in domestic law. NA This again is a provision of a general nature which need not have a corresponding clause in the domestic law. Rule 3 7 of the Information Technology Intermediary Guidelines Rules, 3 7 - When required by lawful order, the intermediary shall provide information or any such assistance to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity.

R 95 4 on the protection of personal data in the area of telecommunication services, with particular reference to telephone services, as well as No. R 89 9 on computer-related crime providing guidelines for national legislatures concerning the definition of certain computer crimes and No. R 95 13 concerning problems of criminal procedural law connected with information technology;.

Having regard to Resolution No. Having also regard to the Action Plan adopted by the Heads of State and Government of the Council of Europe on the occasion of their Second Summit Strasbourg, 10 and 11 October , to seek common responses to the development of the new information technologies based on the standards and values of the Council of Europe;.

Title 1 - Offences against the confidentiality, integrity and availability of computer data and systems. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the access to the whole or any part of a computer system without right. A Party may require that the offence be committed by infringing security measures, with the intent of obtaining computer data or other dishonest intent, or in relation to a computer system that is connected to another computer system.

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the interception without right, made by technical means, of non-public transmissions of computer data to, from or within a computer system, including electromagnetic emissions from a computer system carrying such computer data.

A Party may require that the offence be committed with dishonest intent, or in relation to a computer system that is connected to another computer system. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the serious hindering without right of the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data.

A Party may require by law that a number of such items be possessed before criminal liability attaches. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the input, alteration, deletion, or suppression of computer data, resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible.

A Party may require an intent to defraud, or similar dishonest intent, before criminal liability attaches. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the causing of a loss of property to another person by:.

A Party may, however, require a lower age-limit, which shall be not less than 16 years. Title 4 - Offences related to infringements of copyright and related rights. Each Party shall consider restricting such a reservation to enable the broadest application of the measure referred to in Article Each Party shall consider restricting such a reservation to enable the broadest application of the measures referred to in Articles 20 and

Before we get into a comparison of the Convention with the IT Act, we must point out the distinction between the two legal instruments, for the benefit of readers from a non legal background.

Bettingpro apprentice crossword Each Party shall consider restricting such a reservation to enable the broadest application of the measure referred to in Article Each Party shall adopt aiding or abetting in the commission of cybercrime convention legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the causing of a loss of property to another person by:. Cryptocurrency arbitrage 12 — Corporate liability 1 Raw input csgo reddit betting Party shall adopt such legislative and aiding or abetting in the commission of cybercrime convention measures as may be necessary to ensure that legal persons can be held liable for a criminal offence established in accordance with this Convention, committed for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within it, based on: a a power of representation of the legal person; b an authority to take decisions on behalf of the legal person; c an authority to exercise control within the legal person. The information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing staling clearly the purpose of seeking such information or any such assistance. Believing that an effective fight against cybercrime requires increased, rapid and well-functioning international co-operation in criminal matters. In practice, the penal provisions of the IT Act are investigated by the regular law enforcement apparatus of India, which use statutory provisions for production orders applicable in the offline world to computer systems as well.
Sports betting using machine learning The provisions wikipedia matched betting explained this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Conscious of the profound changes brought about by the digitalisation, convergence and continuing globalisation of computer networks. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the causing of a loss of property to another person by:. NA This is a provision of a general nature that need not have any equivalence in domestic law. Each Party shall consider restricting such a reservation to enable the broadest application of the measures referred to in Articles 20 and Budapest Convention and the Information Technology Act. In practice, the penal provisions of the IT Act are investigated by the regular law enforcement apparatus of India, which use statutory provisions for production orders applicable in the offline world to computer systems as well.
Betting sites in kenya Further the right to life aiding or abetting in the commission of cybercrime convention under Article 21 of the Constitution takes within its fold a number sdlp leader betting sites human rights such as the right to privacy. However certain penal provisions mentioned in the Convention such as computer related forgery Article 7computer related fraud Article 8 are not provided for specifically in the IT Act but such offences are covered when provisions of the Indian Penal Code, are read in conjugation with provisions of the IT Act. A Party may provide for such an order to be subsequently renewed. NA This is a provision of a general nature that need not have any equivalence in domestic law. Recalling Committee of Ministers Recommendations No. NA Just as in the case of forgery, there is no specific provision in the IT Act whereby online fraud would be considered as a crime, however specific acts such as charging services availed of by one person to another section 43 hidentity theft section 66Ccheating by impersonation section 66D have been listed as criminal offences.
Aiding or abetting in the commission of cybercrime convention Contentious issues such as access to stored computer data, real time collection of traffic data lost private key bitcoins interception of content data aiding or abetting in the commission of cybercrime convention been specifically left by the Aiding or abetting in the commission of cybercrime convention to be dealt with as per existing international instruments or arrangements between the parties. Convinced that the present Convention is necessary to deter action directed against the confidentiality, integrity and availability of computer aiding or abetting in the commission of cybercrime convention, networks and computer data as well as the misuse of such systems, networks and data by providing for the criminalisation of such conduct, as described in this Convention, and the adoption of powers sufficient for effectively combating such criminal offences, by facilitating their detection, investigation and prosecution at both the domestic and international levels and by providing arrangements for fast and reliable international co-operation. In some States, preservation orders do not exist in the procedural law, and data can only be preserved and obtained through search and seizure or production order. Flexibility was therefore intended by the use of the phrase "or otherwise obtain" to permit the implementation of this article by the use of these means. Article 6 — Misuse of devices 1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right: a the production, sale, procurement for use, import, distribution or otherwise making available of: i a device, including a computer program, designed or adapted primarily for the purpose of committing any of the offences established in accordance with Articles 2 through 5; ii a computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed, with intent that it be used for the purpose of committing any of the offences established in Articles 2 through 5; and b the possession of an item referred to in paragraphs a.
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A Party may, however, require a lower age-limit, which shall be not less than 16 years. Each Party may reserve the right to apply the measures referred to in Article 20 only to offences or categories of offences specified in the reservation, provided that the range of such offences or categories of offences is not more restricted than the range of offences to which it applies the measures referred to in Article Each Party shall consider restricting such a reservation to enable the broadest application of the measure referred to in Article Each Party shall consider restricting such a reservation to enable the broadest application of the measures referred to in Articles 20 and A Party may provide for such an order to be subsequently renewed.

These measures shall include the power to:. The Parties shall co-operate with each other, in accordance with the provisions of this chapter, and through the application of relevant international instruments on international co-operation in criminal matters, arrangements agreed on the basis of uniform or reciprocal legislation, and domestic laws, to the widest extent possible for the purposes of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence.

This article applies to extradition between Parties for the criminal offences established in accordance with Articles 2 through 11 of this Convention, provided that they are punishable under the laws of both Parties concerned by deprivation of liberty for a maximum period of at least one year, or by a more severe penalty.

Where a different minimum penalty is to be applied under an arrangement agreed on the basis of uniform or reciprocal legislation or an extradition treaty, including the European Convention on Extradition ETS No. The Parties undertake to include such offences as extraditable offences in any extradition treaty to be concluded between or among them. Those authorities shall take their decision and conduct their investigations and proceedings in the same manner as for any other offence of a comparable nature under the law of that Party.

Each Party shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, communicate to the Secretary General of the Council of Europe the name and address of each authority responsible for making or receiving requests for extradition or provisional arrest in the absence of a treaty.

The Secretary General of the Council of Europe shall set up and keep updated a register of authorities so designated by the Parties. Each Party shall ensure that the details held on the register are correct at all times. The requested Party shall accept and respond to the request by any such expedited means of communication. The requested Party shall not exercise the right to refuse mutual assistance in relation to the offences referred to in Articles 2 through 11 solely on the ground that the request concerns an offence which it considers a fiscal offence.

If the receiving Party cannot comply with such request, it shall notify the providing Party, which shall then determine whether the information should nevertheless be provided. If the receiving Party accepts the information subject to the conditions, it shall be bound by them. Title 4 -- Procedures pertaining to mutual assistance requests in the absence of applicable international agreements.

Article 27 -- Procedures pertaining to mutual assistance requests in the absence of applicable international agreements. The provisions of this article shall not apply where such treaty, arrangement or legislation exists, unless the Parties concerned agree to apply any or all of the remainder of this article in lieu thereof. Each Party shall designate a central authority or authorities responsible for sending and answering requests for mutual assistance, the execution of such requests or their transmission to the authorities competent for their execution.

The central authorities shall communicate directly with each other;. Each Party shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, communicate to the Secretary General of the Council of Europe the names and addresses of the authorities designated in pursuance of this paragraph;. The Secretary General of the Council of Europe shall set up and keep updated a register of central authorities designated by the Parties.

Reasons shall be given for any refusal or postponement of the request. The requested Party shall also inform the requesting Party of any reasons that render impossible the execution of the request or are likely to delay it significantly. If the requested Party cannot comply with the request for confidentiality, it shall promptly inform the requesting Party, which shall then determine whether the request should nevertheless be executed.

In the event of urgency, requests for mutual assistance or communications related thereto may be sent directly by judicial authorities of the requesting Party to such authorities of the requested Party. In any such cases, a copy shall be sent at the same time to the central authority of the requested Party through the central authority of the requesting Party.

Any request or communication under this paragraph may be made through the International Criminal Police Organisation Interpol. Where a request is made pursuant to sub-paragraph a. Requests or communications made under this paragraph that do not involve coercive action may be directly transmitted by the competent authorities of the requesting Party to the competent authorities of the requested Party. Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, inform the Secretary General of the Council of Europe that, for reasons of efficiency, requests made under this paragraph are to be addressed to its central authority.

When the requesting Party accepts the condition, it shall be bound by it. For the purposes of responding to a request, dual criminality shall not be required as a condition to providing such preservation. Following the receipt of such a request, the data shall continue to be preserved pending a decision on that request. Article 32 -- Trans-border access to stored computer data with consent or where publicly available.

Subject to the provisions of paragraph 2, this assistance shall be governed by the conditions and procedures provided for under domestic law. The Parties shall provide mutual assistance to each other in the real-time collection or recording of content data of specified communications transmitted by means of a computer system to the extent permitted under their applicable treaties and domestic laws.

Such assistance shall include facilitating, or, if permitted by its domestic law and practice, directly carrying out the following measures:. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe. The decision shall be taken by the majority provided for in Article In respect of such territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of the declaration by the Secretary General.

The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General. However, where Parties establish their relations in respect of the matters dealt with in the present Convention other than as regulated therein, they shall do so in a manner that is not inconsistent with the Convention's objectives and principles.

By a written notification addressed to the Secretary General of the Council of Europe, any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, declare that it avails itself of the possibility of requiring additional elements as provided for under Articles 2, 3, 6 paragraph 1.

At that time, we would only use typewriters for our written school requirements, while the more technologically-advanced used electric typewriters. As a young lawyer more than a decade later, I had a beeper that would receive messages from those who wanted to talk with or see me. Then came the mobile analog phones in the mids together with my first taste of the email in a computer. From then on, digital life seemed to evolve in a much faster way than any of us could have ever imagined: text messaging on phones were introduced, as well as cameras, email access, and other computer-like features.

A great part of our lives are now dictated by online and internet activities — we buy, sell, play games, watch movies, interact, meet, and fellowship, and videoconference on our devices. The way we live our lives has truly changed. And with this change, we have to face the fact that offenses may be committed, and persons may be aggrieved. This is why the Cybercrime Prevention Act of was passed.

There are three 3 general classifications of cybercrime offenses under the Cybercrime Prevention Act of , these are: a offenses against confidentiality, integrity and availability of computer data and systems; b computer-related offenses; and c content- related offenses. Offenses against confidentiality and integrity of computer data or system may be committed by the illegal access of computer data; illegal interception by technical means of computer data; data or system interference, whether intentionally or recklessly resulting to damage, deletion or deterioration of computer data, electronic document or data message including the introduction or transmission of viruses; misuse and possession of devices including computer programs, computer password, access code, or similar data for the purpose of committing any of the acts under the Cybercrime Prevention Act; and cyber-squatting Section 4 a Topics: Tranquil G.

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Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, or the Patents Act, The IT Act does not try to intervene in the existing copyright regime of India and creates a special exemption for the Copyright Act and the Patents Act in the clause which provides this Act overriding effect. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Act for the punishment of such abetment, be punished with the punishment provided for the offence under this Act.

Explanation: An Act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. Whoever attempts to commit an offence punishable by this Act or causes such an offence to be committed, and in such an attempt does any act towards the commission of the offence, shall, where no express provision is made for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence or with both.

As can be seen, both attempts as well as abetment of criminal offences under the IT Act have also been criminalised. Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.

The liability of a company or other body corporate has been laid out in the IT Act in a manner similar to the Budapest Convention. Each Party shall consider restricting such a reservation to enable the broadest application of the measure referred to in Article Each Party shall consider restricting such a reservation to enable the broadest application of the measures referred to in Articles 20 and This is a provision of a general nature that need not have any equivalence in domestic law.

This again is a provision of a general nature which need not have a corresponding clause in the domestic law. Further the right to life guaranteed under Article 21 of the Constitution takes within its fold a number of human rights such as the right to privacy. Freedom of expression, right to fair trial, freedom of assembly, right against arbitrary arrest and detention are all fundamental rights guaranteed under the Constitution of India, Thus, there does exist a statutory mechanism for the enforcement of human rights [9] under Indian law.

It must be noted that the definition of human rights also incorporates rights embodied in International Covenants and are enforceable by Courts in India. A Party may provide for such an order to be subsequently renewed.

Amended vide ITAA The information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing staling clearly the purpose of seeking such information or any such assistance.

It must be noted that Article 16 and Article 17 refer only to data preservation and not data retention. The Convention uses the term "order or similarly obtain", which is intended to allow the use of other legal methods of achieving preservation than merely by means of a judicial or administrative order or directive e. In some States, preservation orders do not exist in the procedural law, and data can only be preserved and obtained through search and seizure or production order.

Flexibility was therefore intended by the use of the phrase "or otherwise obtain" to permit the implementation of this article by the use of these means. While Indian law does not have a specific provision for issuing an order for preservation of data, the provisions of section 29 as well as sections 99 to of the Code of Criminal Procedure, may be utilized to achieve the result intended by Articles 16 and However, in the absence of a power of preservation in the main statute IT Act it remains to be seen whether such an order would be enforced if challenged in a court of law.

While the Cyber Appellate Tribunal and the Controller of Certifying Authorities both have the power to call for information under the IT Act, these powers can be exercised only for limited purposes since the jurisdiction of both authorities is limited to the procedural provisions of the IT Act and they do not have the jurisdiction to investigate penal provisions.

In practice, the penal provisions of the IT Act are investigated by the regular law enforcement apparatus of India, which use statutory provisions for production orders applicable in the offline world to computer systems as well.

It is a very common practice amongst law enforcement authorities to issue orders under the Code of Criminal Procedure, section 91 or the relevant provisions of the Income Tax Act, to compel production of information contained in a computer system. These measures shall include the power to:. Any computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, in respect of which any provision of this Act, rules, orders or regulations made thereunder has been or is being contravened, shall be liable to confiscation:.

Provided that where it is established to the satisfaction of the court adjudicating the confiscation that the person in whose possession, power or control of any such computer, computer system, floppies, compact disks, tape drives or any other accessories relating thereto is found is not responsible for the contravention of the provisions of this Act, rules, orders or regulations made there under, the court may, instead of making an order for confiscation of such computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, make such other order authorized by this Act against the person contravening of the provisions of this Act, rules, orders or regulations made there under as it may think fit.

While Article 19 provides for the power to search and seize computer systems for the investigation into criminal offences of any type of kind, section 76 of the IT Act is limited only to contraventions of the provisions of the Act, rules, orders or regulations made thereunder. However, this does not mean that Indian law enforcement authorities do not have the power to search and seize a computer system for crimes other than those contained in the IT Act; just as in the case of Article 18, the authorities in India are free to use the provisions contained in the Criminal Procedure Code and other sectoral legislations which allow for seizure of property to seize computer systems when investigating criminal offences.

Explanation: For the purposes of this section, i "Computer Contaminant" shall have the meaning assigned to it in section Section 69B in the IT Act enables the government to authorise the monitoring and collection of traffic data through any computer system. Under the Convention, orders for collection and recording of traffic data can be given for the purposes mentioned in Articles 14 and On the other hand, as per the Information Technology Procedure and safeguard for Monitoring and Collecting Traffic Data or Information Rules, , an order for monitoring may be issued for any of the following purposes relating to cyber security:.

As can be seen from the above, the reasons for which an order for monitoring traffic data can be issued are extremely wide, this is in stark contrast to the reasons for which an order for interception of content data may be issued under section The Rules also provide that the intermediary shall not disclose the existence of a monitoring order to any third party and shall take all steps necessary to ensure extreme secrecy in the matter of monitoring of traffic data.

There has been a lot of academic research and debate around the exercise of powers under section 69 of the IT Act, but the current piece is not the place for a standalone critique of section In that background, it needs to be pointed out that two important issues mentioned in Article 20 of the Convention are not specifically mentioned in section 69B, viz.

The Convention provides for extra territorial jurisdiction only for crimes committed outside the State by nationals of that State. However, the IT Act applies even to offences under the Act committed by foreign nationals outside India, as long as the act involves a computer system or computer network located in India.

Unlike para 3 of Article 22 of the Convention, the IT Act does not touch upon the issue of extradition. Cases involving extradition would therefore be dealt with by the general law of the land in respect of extradition requests contained in the Extradition Act, The Convention requires that in cases where the state refuses to extradite an alleged offender, it should establish jurisdiction over the offences referred to in Article 21 1 so that it can proceed against that offender itself.

Chapter III of the Convention deals specifically with international cooperation between the signatory parties. Such co-operation is to be carried out both "in accordance with the provisions of this Chapter" and "through application of relevant international agreements on international cooperation in criminal matters, arrangements agreed to on the basis of uniform or reciprocal legislation, and domestic laws.

The Convention also provides for international cooperation on certain issues which may not have been specifically provided for in mutual assistance treaties entered into between the parties and need to be spelt out due to the unique challenges posed by cyber crimes, such as expedited preservation of stored computer data Article 29 and expedited disclosure of preserved traffic data Article Contentious issues such as access to stored computer data, real time collection of traffic data and interception of content data have been specifically left by the Convention to be dealt with as per existing international instruments or arrangements between the parties.

The broad language and wide terminology used IT Act seems to cover a number of the cyber crimes mentioned in the Budapest Convention, even though India has not signed and ratified the same. Penal provisions such as illegal access Article 2 , data interference Article 4 , system interference Article 5 , offence related to child pornography Article 9 , attempt and aiding or abetting Article 11 , corporate liability Article 12 are substantially covered and reflected in the IT Act in a manner very similar to the requirements of the Convention.

Similarly procedural provisions such as search and seizure of stored computer data Article 19 , real-time collection of traffic data Article 20 , interception of content data Article 21 and Jurisdiction Article 22 are also substantially reflected in the IT Act. However certain penal provisions mentioned in the Convention such as computer related forgery Article 7 , computer related fraud Article 8 are not provided for specifically in the IT Act but such offences are covered when provisions of the Indian Penal Code, are read in conjugation with provisions of the IT Act.

Similarly procedural provisions such as expedited preservation of stored computer data Article 16 and production order Article 18 are not specifically provided for in the IT Act but are covered under Indian law through the provisions of the Code of Criminal Procedure, Apart from the above two categories there are certain provisions such as misuse of devices Article 6 and Illegal interception Article 3 which may not be specifically covered at all under Indian law, but may conceivably be said to be covered through an expansive reading of provisions of the Indian Penal Code and the IT Act.

It may therefore be said that even though India has not signed or ratified the Budapest Convention, the legal regime in India is substantially in compliance with the provisions and requirements contained therein. In an increasingly interconnected world where more and more information of individuals is finding its way to the cloud or other networked infrastructure the international community is making great efforts to generate norms for increased international cooperation to combat cybercrime and cyber terrorism.

While the Convention is one such multilateral effort, States are also proposing to use bilateral treaties to enable them to better fight cybercrime, the United States CLOUD Act, being one such effort. In the backdrop of these novel efforts the role to be played by older instruments such as the Convention on Cybercrime as well as by important States such as India is extremely crucial. Location on Google Map. You may donate online via Instamojo.

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To discuss such possibilities, please write to Amber Sinha, Executive Director, at amber[at]cis-india[dot]org or Sumandro Chattapadhyay, Director, at sumandro[at]cis-india[dot]org, with an indication of the form and the content of the collaboration you might be interested in. The Centre for Internet and Society CIS is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives.

The areas of focus include digital accessibility for persons with disabilities, access to knowledge, intellectual property rights, openness including open data, free and open source software, open standards, open access, open educational resources, and open video , internet governance, telecommunication reform, digital privacy, and cyber-security. The research at CIS seeks to understand the reconfiguration of social processes and structures through the internet and digital media technologies, and vice versa.

Through its diverse initiatives, CIS explores, intervenes in, and advances contemporary discourse and regulatory practices around internet, technology, and society in India, and elsewhere. Budapest Convention and the Information Technology Act. Convention on Cybercrime Information Technology Act, Article 3 — Illegal Interception Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the interception without right, made by technical means, of non-public transmissions of computer data to, from or within a computer system, including electromagnetic emissions from a computer system carrying such computer data.

NA Although the Information Technology Act, does not specifically criminalise the interception of communications by a private person. Section 43 If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network - d damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network; i destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means; j Steals, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage, he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.

NA Just as in the case of forgery, there is no specific provision in the IT Act whereby online fraud would be considered as a crime, however specific acts such as charging services availed of by one person to another section 43 h , identity theft section 66C , cheating by impersonation section 66D have been listed as criminal offences. Mindful of the need to ensure a proper balance between the interests of law enforcement and respect for fundamental human rights as enshrined in the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the United Nations International Covenant on Civil and Political Rights and other applicable international human rights treaties, which reaffirm the right of everyone to hold opinions without interference, as well as the right to freedom of expression, including the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, and the rights concerning the respect for privacy;.

Mindful also of the right to the protection of personal data, as conferred, for example, by the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data;. Taking into account the existing Council of Europe conventions on co-operation in the penal field, as well as similar treaties which exist between Council of Europe member States and other States, and stressing that the present Convention is intended to supplement those conventions in order to make criminal investigations and proceedings concerning criminal offences related to computer systems and data more effective and to enable the collection of evidence in electronic form of a criminal offence;.

Welcoming recent developments which further advance international understanding and co-operation in combating cybercrime, including action taken by the United Nations, the OECD, the European Union and the G8;. Recalling Committee of Ministers Recommendations No. R 85 10 concerning the practical application of the European Convention on Mutual Assistance in Criminal Matters in respect of letters rogatory for the interception of telecommunications, No.

R 88 2 on piracy in the field of copyright and neighbouring rights, No. R 87 15 regulating the use of personal data in the police sector, No. R 95 4 on the protection of personal data in the area of telecommunication services, with particular reference to telephone services, as well as No. R 89 9 on computer-related crime providing guidelines for national legislatures concerning the definition of certain computer crimes and No.

R 95 13 concerning problems of criminal procedural law connected with information technology;. Having regard to Resolution No. Having also regard to the Action Plan adopted by the Heads of State and Government of the Council of Europe on the occasion of their Second Summit Strasbourg, 10 and 11 October , to seek common responses to the development of the new information technologies based on the standards and values of the Council of Europe;.

Title 1 - Offences against the confidentiality, integrity and availability of computer data and systems. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the access to the whole or any part of a computer system without right.

A Party may require that the offence be committed by infringing security measures, with the intent of obtaining computer data or other dishonest intent, or in relation to a computer system that is connected to another computer system. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the interception without right, made by technical means, of non-public transmissions of computer data to, from or within a computer system, including electromagnetic emissions from a computer system carrying such computer data.

A Party may require that the offence be committed with dishonest intent, or in relation to a computer system that is connected to another computer system. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the serious hindering without right of the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data.