ISP liability

Online Revenge Porn-Recourse for Victims under Cyber Laws

– Advocate Puneet Bhasin, Cyber Law Expert, Cyberjure Legal Consulting
http://www.cyberjure.com

revenge porn
Online Revenge Porn means that when there are relationship break ups, then either party puts up nude pictures of the other or videos of their intimate moments on social networking media, blogs and other websites. Online Revenge Porn is on the rise world over with the advent of an open arena of the internet. Most online porn in India is amateur porn or revenge porn. World over, every country has enacted specific legislation to deal with revenge porn.
UK is coming out with the Revenge Porn Law. Many US States already have their Revenge porn laws. Virginia also has a revenge porn law and on 20th October, 2014 the first person was charged and convicted under their law.
In India we do not have a separate Revenge Porn Law, but Sections 67, 67-A and 66-A of the Information Technology Act, 2000 make online publication of Revenge porn a punishable offence.
Section 67 reads as under:
Punishment for publishing or transmitting obscene material in electronic form. -Whoever publishes or transmits or causes to be published or transmitted 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 three years and with fine which may extend to five lakh rupees and in the event of 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 ten lakh rupees.
This section makes a person liable for transmitting or causing to transmit nude photos or content of the nature that it can deprave/corrupt the viewer of such content.
When people are in relationships, they tend to share nude or naughty photos of themselves with each other, and these photos are misused by the jilted partner in the event of a break up.
A victim can seek recourse under Section 67 in such a case.
Section 67 A of the Information Technology Act reads as under:
“Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form. – Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct 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 ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.”
This section also criminalizes the act of any party transmitting via email, MMS or video any act or conduct of explicit nature which the parties indulged in during the course of the relationship.
A victim can file a complaint with the Cyber Police Station along with filing an FIR in the Police Station.
In India we definitely need separate and comprehensive revenge porn laws along with an efficient judicial mechanism to deal with these offences in short duration of time. Many countries have a National Helpline along with a separate Cell to deal with Online Revenge Porn, as these matters require immediate redressal before the video goes viral. A National Helpline for revenge should be set up in India too, where victims can complain and there would be immediate pull down of the content from the internet. Most developed countries have enacted specific laws for the same already because of the huge increase in Revenge porn in the virtual world.
Disclaimer: This article is purely for educational purpose and is not in the nature of legal advice. It does not constitute any lawyer-client relationship between the author and the reader.

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  – Advocate Puneet Bhasin, Cyber Lawyer (Cyberjure Legal Consulting)

3PHISHING12

Online banking revolutionized banking transactions, whereby money could be transferred at a single click. It has been a  time saver and has been an extremely convenient method to undertake commercial transactions. However, it has lead to a slew of litigation against banks. With online banking came phishing emails.

Phishing emails in these cases are those emails which purport to have been sent by the bank and have the look and feel of a legitimate email from a bank. They require the user to enter their username and password to reconfirm their accounts, invariably threatening that if such confirmation is not made immediately the account would be frozen. In many cases these emails are spoofed also whereby a third party sends an email using the email id of the bank, and this can be easily identified by reading the complete header of the email.

Many users panic on receiving such an email and immediately give out their personal sensitive data like banking passwords to third parties purporting to be representing the bank.  They realize that they have been duped only when money is drawn out by such third parties from their bank accounts.

There has been a slew of litigation against banks whereby, the victims of phishing scams file complaints against the banks under the Information Technology Act, 2000.  The grounds on which such complaints are filed is Section 43, Section 43A and Section 72 A pf the Information Technology Act.

Section 43 of the Information Technology Act deals with Unauthorised Access, and the Complainant in most cases alleges violation of Section 43 (a) which is accessing or securing access to a computer, computer system or computer network without permission of owner or person in charge. However, banks have a very strong legal defence to this because the unauthorised access is by a third party who sent the phishing email and not the bank. The banks on receipt of any information from a online banking services user that his account has been wrongfully debited, must ask him if he responded to any email asking for his password and must ask him to submit documentary proof of that email to the bank. If the user admits that he has replied to such phishing email, the bank must require him to submit a letter to the bank to that effect in order to enable the bank to freeze his account, whereby further unauthorised money transfer should not happen from his account.  The bank should intimate the user by an official letter to file a complaint with the cyber crime cell, and the bank should also file  an FIR against the beneficiary account holders in whose accounts the money has been unauthorisedly credited. This is important to prove the proactive efforts of the bank in a litigation by a victim against the bank under the Information Technology Act.

Section 72 A of the Information Technology Act reads as under:

Punishment for Disclosure of information in breach of lawful contract.- Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person shall be punished with imprisonment for a term which may extend to three years, or with a fine which may extend to five lakh rupees, or with both.”

The main contention of the complainant would be that the bank has access to his password and misused it. However, as per RBI norms all banks have 128 bit encryption of passwords and the bank does not have any access to the same.

The Complainants in most cases attempt to bring the bank within the definition of an “Intermediary” under the Information Technology Act,; however, the exceptions to intermediary liability under Section 79 of the Information Technology Act, 2000, apply to a bank in this case because of the following reasons:

1. the function of the bank  is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored.

2. the bank does not-

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission
(c) the bank observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

The banks are required to maintain ISO 27001 standards because they handle confidential and sensitive personal data of users of their services.

In brief, the banks need to undertake the following steps in order to be able to succeed in any litigation against them:

1. They should provide a handbook to the online banking services users at the time they apply for such services. The handbook should mention directions for safe use of online banking and should also contain complete information about phishing emails and scams, including information on how users can protect themselves from such phishing attacks.

2. The Online Banking Services Application should have an Indemnity clause, whereby the user indemnifies the bank.

3. The Terms and Conditions of Online Banking should contain Indemnity clauses with respect to password of the user, online transactions and use of bank’s services.

4. There should be a security tips page which warns users of phishing emails each time they log in for online banking.

5. There should be cyber security and cyber law compliance panel. This panel should comprise of cyber security experts who should ensure that proper cyber security measures are always in place and the cyber lawyer in the panel should ensure that the online banking user agreement clauses  are up-to-date to restrict the bank’s liability in an environment where new cyber crimes get added each day.

6. The online user should be made to agree to indemnify the bank with respect to his usage of his password and online banking transactions with each log in.

7. There should be a well drafted Privacy Policy whereby the bank’s liability is reduced to a negligible level.

8. The cyber security and cyber law compliance panel should send emails on a routine basis to all users of online banking about the latest cyber crimes and safe guard measures. This helps show the banks active role in prevention of cyber crimes and shows the bank in positive light in cyber crime litigation against the bank.

9. The Online Banking Services Agreement should have a well drafted Alternative Dispute Resolution Clause. This clause is very important as it helps preserve the image and reputation of a bank, which can get damaged when the bank is accused in such matters involving litigation.

10. The bank should actively follow-up the case investigation after filing the FIR.

In the current scenario most cases where the victim in phishing scams files a complaint against the bank manages to succeed in getting compensated for his losses.

These are a few guidelines which can help a Bank succeed in litigation faced by them due to phishing scams.

 

legal.pb@gmail.com

http://www.cyberjure.com